EN BANC- [G.R. No. 158466.
June 15, 2004] On June 18, 2001, private respondent filed his answer with counter-
PABLO V. OCAMPO, petitioner, vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B. CRESPO
a.k.a. MARK JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The wreath of victory cannot be transferred from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration of election in
favor of the person who obtained a plurality of votes and does not entitle a candidate
receiving the next highest number of votes to be declared elected. [1]
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, filed by petitioner Pablo V. Ocampo. He alleged that the House of
Representatives Electoral Tribunal (HRET), herein public respondent, committed grave
abuse of discretion in issuing in HRET Case No. 01-024, Pablo Ocampo vs. Mario Mark
Jimenez Crespo, the (a) Resolution[2] dated March 27, 2003 holding that protestant (herein
petitioner) cannot be proclaimed the duly elected Representative of the 6 th District of
Manila since being a second placer, he cannot be proclaimed the first among the remaining
qualified candidates; and (b) Resolution[3]dated June 2, 2003 denying his motion for
reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers proclaimed private respondent
Mario B. Crespo, a.k.a. Mark Jimenez, the duly elected Congressman of the 6 th District of
Manila pursuant to the May 14, 2001elections. He was credited with 32,097 votes or a
margin of 768 votes over petitioner who obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral protest[4] against
private respondent, impugning the election in 807 precincts in the 6 th District of Manila on
the following grounds: (1) misreading of votes garnered by petitioner; (2) falsification of
election returns; (3) substitution of election returns; (4) use of marked, spurious, fake and
stray ballots; and (5) presence of ballots written by one person or two persons. The case
was docketed as HRET Case No. 01-024. Petitioner prayed that a revision and
appreciation of the ballots in the 807 contested precincts be conducted; and that,
thereafter, he be proclaimed the duly elected Congressman of the 6 th District of Manila.
protest[5] vehemently denying that he engaged in massive vote buying. He also opposed
petitioners allegation that there is a need for the revision and appreciation of ballots.
After the preliminary conference between the parties on July 12, 2001,
the HRET issued a Resolution[6] limiting the issues to: first, whether massive vote-buying
was committed by private respondent; and second,whether petitioner can be proclaimed
the duly elected Representative of the 6th District of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-
020, Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-023, Rosenda
Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring that private respondent
is ineligible for the Office of Representative of Sixth District of Manila for lack of
residence in the district and ordering him to vacate his office. [7] Private respondent
filed a motion for reconsideration but was denied. [8]
On March 12, 2003, petitioner filed a motion to implement Section 6 of Republic Act
No. 6646,[9] which reads:
Section 6. Effects of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number
of votes in such election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof, order the suspension of the proclamation of such
candidate whenever the evidence of guilt is strong.
Petitioner averred that since private respondent was declared disqualified
in HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be
counted. And having garnered the second highest number of votes, he (petitioner) should
be declared the winner in the May 14, 2001 elections and proclaimed the duly elected
Congressman of the 6th District of Manila.
On March 26, 2003, private respondent filed an opposition to petitioners motion to
implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that private respondent was
guilty of vote-buying and disqualifying him as Congressman of the 6 th District of
Manila. Anent the second issue of whether petitioner can be proclaimed the duly elected
Congressman, the HRET held:
x x x Jurisprudence has long established the doctrine that a second placer
cannot be proclaimed the first among the remaining qualified candidates. The
fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily give the candidate who obtained the second highest
number of votes the right to be declared the winner of the elective office. x x x
It is of no moment that there is only a margin of 768 votes between protestant and
protestee. Whether the margin is ten or ten thousand, it still remains that protestant did
not receive the mandate of the majority during the elections. Thus, to proclaim him as the
duly elected representative in the stead of protestee would be anathema to the most basic
precepts of republicanism and democracy as enshrined within our Constitution. In effect,
we would be advocating a massive disenfranchisement of the majority of the voters of the
sixth district of Manila.
Congressional elections are different from local government elections. In local government
elections, when the winning candidate for governor or mayor is subsequently disqualified,
the vice-governor or the vice-mayor, as the case may be, succeeds to the position by
virtue of the Local Government Code. It is different in elections for representative. When a
voter chooses his congressional candidate, he chooses only one. If his choice is concurred
in by the majority of voters, that candidate is declared the winner. Voters are not afforded
the opportunity of electing a substitute congressman in the eventuality that their first
choice dies, resigns, is disqualified, or in any other way leaves the post vacant. There can
only be one representative for that particular legislative district. There are no runners-up or
second placers. Thus, when the person vested with the mandate of the majority is
disqualified from holding the post he was elected to, the only recourse to ascertain the
new choice of the electorate is to hold another election. x x x
This does not mean that the Sixth Legislative District of Manila will be without adequate
representation in Congress. Article VI, Section 9 of the Constitution, and Republic Act No.
6645 allows Congress to call a special election to fill up this vacancy. There are at least 13
months until the next congressional elections, which is more than sufficient time within
which to hold a special election to enable the electorate of the Sixth District of Manila to
elect their representative.
For this reason, the Tribunal holds that protestant cannot be proclaimed as the duly
elected representative of the Sixth legislative District of Manila.
In view of the conclusion herein reached, it is unnecessary to rule on the recount
and revision of ballots in the protested and counter-protested precincts.
WHEREFORE, the Tribunal Resolved to:
xxxxxx
2) DENY protestants (petitioner) Motion to Implement Section 6, Republic Act No. 6646 by
declaring the votes cast for Mario Crespo as stray votes.
Petitioner filed a partial motion for reconsideration but was denied. Hence, the present
petition for certiorari.
Petitioner contends that the HRET committed grave abuse of discretion when it ruled
that it is unnecessary to rule on the recount and revision of ballots in the
protested and counter-protested precincts. He maintains that it is the ministerial
duty of the HRET to implement the provisions of Section 6, R.A. No. 6646 specifically
providing that any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted.
In his comment, private respondent counters that what the law requires is that
the disqualification by final judgment takes place before the election. Here,
the HRET Resolutions disqualifying him as Representative of the 6 th District of Manila were
rendered long after the May 14, 2001 elections. He also claims that the Resolutions
are not yet final and executory because they are the subjects of certiorari proceedings
before this Court. Hence, all his votes shall be counted and none shall be considered stray.
The HRET, in its comment, through the Office of the Solicitor General, merely
reiterates its ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of private respondent should
not be counted pursuant to Section 6 of R.A. No. 6646; and (2) whether petitioner, a
second placer in the May 14, 2001 congressional elections, can be proclaimed the duly
elected Congressman of the 6th District of Manila.
The issues raised are not novel. In Codilla, Sr. vs. De Venecia,[10] we expounded on the
application of Section 6, R.A. No. 6646. There, we emphasized that there must be a final
judgment before the election in order that the votes of a disqualified candidate can be
considered stray, thus:
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final
judgment before the election for the votes of a disqualified candidate to be considered
stray. Hence, when a candidate has not yet been disqualified by final judgment during the
election day and was voted for, the votes cast in his favor cannot be declared stray. To do
so would amount to disenfranchising the electorate in whom sovereignty resides.
The obvious rationale behind the foregoing ruling is that in voting for a candidate who
has not been disqualified by final judgment during the election day, the people voted for
him bona fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to whom
they would entrust the exercise of the powers of government.[11]
 In the present case, private respondent was declared disqualified almost twenty-two
(22) months after the May 14, 2001 elections. Obviously, the requirement of final
judgment before election is absent. Therefore, petitioner can not invoke Section 6 of
R.A. No. 6646.
Anent the second issue, we revert back to the settled jurisprudence that the
subsequent disqualification of a candidate who obtained the highest number of votes does
not entitle the candidate who garnered the second highest number of votes to be declared
the winner.[12] This principle has been reiterated in a number our decisions, such
as Labo, Jr. vs. COMELEC,[13] Abella vs. COMELEC,[14] Benito vs. COMELEC[15] and Domino vs.
COMELEC.[16] As a matter of fact, even as early as 1912, it was held that the candidate who
lost in an election cannot be proclaimed the winner in the event that the candidate who
won is found to be ineligible for the office for which he was elected. [17]
In Geronimo vs. Ramos,[18] if the winning candidate is not qualified and cannot qualify
for the office to which he was elected, a permanent vacancy is thus created. The second
placer is just that, a second placer he lost in the elections, he was repudiated by either the
majority or plurality of voters. He could not be proclaimed winner as he could not be
considered the first among the qualified candidates. To rule otherwise is to misconstrue the
nature of the democratic electroral process and the sociological and psychological
underpinnings behind voters preferences.[19]
At any rate, the petition has become moot and academic. The Twelfth Congress
formally adjourned on June 11, 2004. And on May 17, 2004, the City Board of Canvassers
proclaimed Bienvenido Abante the duly elected Congressman of the Sixth District of Manila
pursuant to the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal,[20] we ruled that a case
becomes moot and academic when there is no more actual controversy between the
parties or no useful purpose can be served in passing upon the merits. Worth reiterating is
our pronouncement in Gancho-on vs. Secretary of Labor and Employment, thus:[21]
It is a rule of universal application, almost, that courts of justice constituted to pass upon
substantial rights will not consider questions in which no actual interests are involved; they
decline jurisdiction of moot cases. And where the issue has become moot and academic,
there is no justiciable controversy, so that a declaration thereon would be of no practical
use or value. There is no actual substantial relief to which petitioner would be entitled and
which would be negated by the dismissal of the petition.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Puno, J., no part. Participated in HRET case.
Vitug, J., on official leave.
Panganiban, J., no part. Participated in deliberations in HRET.
Quisumbing, J., no part prior action in HRET.
Ynares-Santiago, J., on leave.
Corona, J., on official leave.
432 SCRA 145, June 15 2004 (Constitutional Law Disqualification)
FACTS: In the case at bar, private respondent, a duly elected congressman, was declared
disqualified 22 months after the May 14, 2001 elections. Petitioner avers that, having
garnered the second highest number of votes, the same should be declared the winner in
the said elections.
ISSUE: Whether or not a second placer in congressional elections can be proclaimed the
duly elected Congressman.
HELD: No, it is settled jurisprudence that the subsequent disqualification of a candidate
who obtained the highest number of votes does not entitle the candidate who garnered the
second highest number of votes to be declared the winner. The latter could not be
proclaimed winner as he could not be considered the first among the qualified candidates.
Note: Voters are not afforded the opportunity of electing a substitute congressman in the
eventuality that their first choice dies, resigns, is disqualified, or in any other way leaves
the post vacant. There can only be one representative for that particular legislative
district. There are no runners-up or second placers. Thus, when the person vested with
the mandate of the majority is disqualified from holding the post he was elected to, the
only recourse to ascertain the new choice of the electorate is to hold another election.
Facts: Mario B. Crespo aka Mark Jimenez, a duly-elected congressman of the 6th district of
Manila, was declared ineligible for the position in which he was elected for lack of
residency in the district and was ordered to vacate his office. Ocampo then averred that
since Crespo was declared as such, he should be declared the winner, having garnered the
second highest number of votes.
Issue: Whether or not the candidate who has the second highest vote should be declared G.R. No. 195649 July 2, 2013
as winner considering that the duly-elected representative is not eligible for the office.
CASAN MACODE MACQUILING, PETITIONER,
Ruling: No. The fact that the candidate who had the highest number of votes is later vs.
declared to be disqualified or ineligible for office does not give rise to the right of the COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G.
candidate who garnered the second highest vote to be declared winner. To do otherwise BALUA. RESPONDENTS.
would be anathema to the most basic precepts of republicanism and democracy. Therefore,
the only recourse to ascertain the new choice of the electorate is to hold another election. RESOLUTION

SERENO, J.:

This Resolution resolves the Motion for Reconsideration filed by respondent on May 10,
2013 and the Supplemental Motion for Reconsideration filed on May 20, 2013.

We are not unaware that the term of office of the local officials elected in the May 2010
elections has already ended on June 30, 2010. Arnado, therefore, has successfully finished
his term of office. While the relief sought can no longer be granted, ruling on the motion for
reconsideration is important as it will either affirm the validity of Arnados election or affirm
that Arnado never qualified to run for public office.

Respondent failed to advance any argument to support his plea for the reversal of this
Courts Decision dated April 16, 2013. Instead, he presented his accomplishments as the
Mayor of Kauswagan, Lanao del Norte and reiterated that he has taken the Oath of
Allegiance not only twice but six times. It must be stressed, however, that the relevant
question is the efficacy of his renunciation of his foreign citizenship and not the taking of
the Oath of Allegiance to the Republic of the Philippines. Neither do his accomplishments
as mayor affect the question before this Court.

Respondent cites Section 349 of the Immigration and Naturalization Act of the United
States as having the effect of expatriation when he executed his Affidavit of Renunciation
of American Citizenship on April 3, 2009 and thus claims that he was divested of his
American citizenship. If indeed, respondent was divested of all the rights of an American
citizen, the fact that he was still able to use his US passport after executing his Affidavit of
Renunciation repudiates this claim.

The Court cannot take judicial notice of foreign laws,1 which must be presented as public
Republic of the Philippines documents2 of a foreign country and must be "evidenced by an official publication
SUPREME COURT thereof."3 Mere reference to a foreign law in a pleading does not suffice for it to be
Manila considered in deciding a case.

EN BANC
Respondent likewise contends that this Court failed to cite any law of the United States
"providing that a person who is divested of American citizenship thru an Affidavit of
Renunciation will re-acquire such American citizenship by using a US Passport issued prior
to expatriation."4
American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local
Government Code calls for application in the case before us, given the fact that at the time
Arnado filed his certificate of candidacy, he was not only a Filipino citizen but, by his own
declaration, also an American citizen. It is the application of this law and not of any foreign
law that serves as the basis for Arnados disqualification to run for any local elective
position.
With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that
"all Philippine citizens who become citizens of another country shall be deemed not to
have lost their Philippine citizenship under the conditions of this Act."5 This policy pertains
to the reacquisition of Philippine citizenship. Section 5(2)6 requires those who have re-
acquired Philippine citizenship and who seek elective public office, to renounce any and all
foreign citizenship.
This requirement of renunciation of any and all foreign citizenship, when read together with
Section 40(d) of the Local Government Code7 which disqualifies those with dual citizenship
from running for any elective local position, indicates a policy that anyone who seeks to
run for public office must be solely and exclusively a Filipino citizen. To allow a former
Filipino who reacquires Philippine citizenship to continue using a foreign passport which
indicates the recognition of a foreign state of the individual as its national even after the
Filipino has renounced his foreign citizenship, is to allow a complete disregard of this policy.
Further, we respectfully disagree that the majority decision rules on a situation of doubt.
Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies
those with dual citizenship from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration that one is a
citizen of the country which issued the passport, or that a passport proves that the country
which issued it recognizes the person named therein as its national.
It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired
American citizenship by naturalization. There is no doubt that he reacquired his Filipino
citizenship by taking his Oath of Allegiance to the Philippines and that he renounced his
American citizenship. It is also indubitable that after renouncing his American citizenship,
Arnado used his U.S. passport at least six times.
If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his
American citizenship when he subsequently used his U.S. passport. The renunciation of
foreign citizenship must be complete and unequivocal. The requirement that the
renunciation must be made through an oath emphasizes the solemn duty of the one
making the oath of renunciation to remain true to what he has sworn to. Allowing the
subsequent use of a foreign passport because it is convenient for the person to do so is
rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a
mere ceremonial formality.
The dissent states that the Court has effectively left Arnado "a man without a
country".1wphi1 On the contrary, this Court has, in fact, found Arnado to have more than
one. Nowhere in the decision does it say that Arnado is not a Filipino citizen. What the
decision merely points out is that he also possessed another citizenship at the time he filed
his certificate of candidacy.
Well-settled is the rule that findings of fact of administrative bodies will not be interfered
with by the courts in the absence of grave abuse of discretion on the part of said agencies,
or unless the aforementioned findings are not supported by substantial evidence.8 They
are accorded not only great respect but even finality, and are binding upon this Court,
unless it is shown that the administrative body had arbitrarily disregarded or
misapprehended evidence before it to such an extent as to compel a contrary conclusion
had such evidence been properly appreciated.9
Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used
his U.S. Passport at least six times after he renounced his American citizenship. This was
debunked by the COMELEC En Banc, which found that Arnado only used his U.S. passport
four times, and which agreed with Arnados claim that he only used his U.S. passport on
those occasions because his Philippine passport was not yet issued. The COMELEC En Banc
argued that Arnado was able to prove that he used his Philippine passport for his travels on
the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April 2010, 20
May 2010, and 4 June 2010.
None of these dates coincide with the two other dates indicated in the certification issued
by the Bureau of Immigration showing that on 21 January 2010 and on 23 March 2010,
Arnado arrived in the Philippines using his U.S. Passport No. 057782700 which also
indicated therein that his nationality is USA-American. Adding these two travel dates to the
travel record provided by the Bureau of Immigration showing that Arnado also presented
his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25 June
2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these
incidents sum up to six.
The COMELEC En Banc concluded that "the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his use."10 This
conclusion, however, is not supported by the facts. Arnado claims that his Philippine
passport was issued on 18 June 2009. The records show that he continued to use his U.S.
passport even after he already received his Philippine passport. Arnados travel records
show that he presented his U.S. passport on 24 November 2009, on 21 January 2010, and
on 23 March 2010. These facts were never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that
the use of the U.S. passport was discontinued when Arnado obtained his Philippine
passport. Arnados continued use of his U.S. passport cannot be considered as isolated
acts contrary to what the dissent wants us to believe.
It must be stressed that what is at stake here is the principle that only those who are
exclusively Filipinos are qualified to run for public office. If we allow dual citizens who wish
to run for public office to renounce their foreign citizenship and afterwards continue using
their foreign passports, we are creating a special privilege for these dual citizens, thereby
effectively junking the prohibition in Section 40(d) of the Local Government Code.
WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED with finality.
SO ORDERED.
Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes, and Perlas-
Bernabe, JJ., concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., I dissent.
Maquiling vs. COMELEC
Facts:
Respondent Arnado is a natural born Filipino citizen. However, as a consequence of his
subsequent naturalization as a citizen of USA, he lost his Filipino citizenship. Arnado
applied for repatriation under R.A. No. 9225 before the Consulate General of the Philippines
in San Francisco, USA and took the Oath of Allegianceto the RP on 10 July 2008. On the
same day an order of approval of his citizenship retention and re-acquisition was issued in
his favour. In 2009, Arnado again took his Oath of Allegiance to RP and executed an
affidavit of renunciation of his foreign citizenship. On 30 November 2009, Arnado filed his
certificate of candidacy for Mayor of Kauswagan, Lanao Del Norte.
Respondent Linog Balua, another mayoralty candidate, filed a petition to disqualify Arnado
and presented a record indicating that Arnado has been using his US Passport in entering
and departing the Philippines.
COMELEC issued an order requiring the respondent to personally file his answer. After
Arnado failed to answer the petition, Balua moved to declare him in default. In 2010
election, Arnado garnered the highest number of votes and was subsequently proclaimed
as the winning candidate for Mayor. It was only after his proclamation that Arnado filed his
answer.
COMELEC first division ruled for his disqualification. Petitioner Maquiling, another candidate
for mayor of Kausawagan, and who garnered the second highest number of votes,
intervened in the case and filed before the COMELEC En Banc a motion for reconsideration
claiming that the cancellation of Arnados candidacy and the nullification of his
proclamation, him, as the legitimate candidate who obtained the highest lawful votes
should be proclaimed as the winner. COMELEC En Banc held that it shall continue with the
trial and hearing. However, it reversed and set aside the ruling of first division and granted
Arnados MR.
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified
to run for public office despite his continued use of a US passport, and praying that he be
proclaimed as the winner in the 2010 mayoralty race.
Issue:
Whether or not the use of a foreign passport after renouncing foreign citizenship amount to
undoing a renunciation earlier made.
Held:
Yes. The Supreme Court ruled that the use of foreign passport after renouncing ones
foreign citizenship is a positive and voluntary act of representation as to ones nationality
and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants
the Oath of Renunciation required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign before any public officer authorized to administer an oath.
xxx
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took
the Oath of Allegiance and renounced his foreign citizenship. There is no question that
after performing these twin requirements required under Section 5(2) of R.A. No. 9225 or
the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for
public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino
citizen, regardless of the effect of such renunciation under the laws of the foreign country.
However, this legal presumption does not operate permanently and is open to attack
when, after renouncing the foreign citizenship, the citizen performs positive acts showing
his continued possession of a foreign citizenship. Arnado himself subjected the issue of his
citizenship to attack when, after renouncing his foreign citizenship, he continued to use his
US passport to travel in and out of the country before filing his certificate of candidacy on
30 November 2009. The pivotal question to determine is whether he was solely and
exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November
2009, the date he filed his COC, he used his US passport four times, actions that run
counter to the affidavit of renunciation he had earlier executed. By using his foreign
passport, Arnado positively and voluntarily represented himself as an American, in effect
declaring before immigration authorities of both countries that he is an American citizen,
with all attendant rights and privileges granted by the United States of America. The
renunciation of foreign citizenship is not a hollow oath that can simply be professed at any
time, only to be violated the next day. It requires an absolute and perpetual renunciation of
the foreign citizenship and a full divestment of all civil and political rights granted by the
foreign country which granted the citizenship. While the act of using a foreign passport is
not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and
loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also a citizen of another country to
be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation that he
"absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES
OF AMERICA" and that he "divest(s) himself of full employment of all civil and political
rights and privileges of the United States of America."
We agree with the COMELEC En Banc that such act of using a foreign passport does not
divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado voluntarily and effectively reverted to
his earlier status as a dual citizen. Such reversion was not retroactive; it took place the
instant Arnado represented himself as an American citizen by using his US passport. This
act of using a foreign passport after renouncing ones foreign citizenship is fatal to
Arnados bid for public office, as it effectively imposed on him a disqualification to run for
an elective local position.
The citizenship requirement for elective public office is a continuing one. It must be
possessed not just at the time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of renunciation opens the citizenship issue to
attack.
Citizenship is not a matter of convenience. It is a badge of identity that comes with
attendant civil and political rights accorded by the state to its citizens. It likewise demands
the concomitant duty to maintain allegiance to ones flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage, those who seek
election or appointment to public office are required to renounce their foreign citizenship to
be deserving of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local
Government Code applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May 2010 elections.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is
thus rendered void from the beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his disqualification prior to the
elections because he filed his answer to the petition when the elections were conducted
already and he was already proclaimed the winner.
Arnado being a non-candidate, the votes cast in his favor should not have been counted.
This leaves Maquiling as the qualified candidate who obtained the highest number of
votes. Therefore, the rule on succession under the Local Government Code will not apply.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.

MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which
this application for habeas corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet, after all, the cause presents
no great difficulty if there is kept in the forefront of our minds the basic principles of
popular government, and if we give expression to the paramount purpose for which the
courts, as an independent power of such a government, were constituted. The primary
question is Shall the judiciary permit a government of the men instead of a government
of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might
prove profitable reading for other departments of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice,
ordered the segregated district for women of ill repute, which had been permitted for a
number of years in the city of Manila, closed. Between October 16 and October 25, 1918,
the women were kept confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements with the Bureau of
Labor for sending the women to Davao, Mindanao, as laborers; with some government
office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police,
acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the
city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into
patrol wagons, and placed them aboard the steamers that awaited their arrival. The
women were given no opportunity to collect their belongings, and apparently were under
the impression that they were being taken to a police station for an investigation. They had
no knowledge that they were destined for a life in Mindanao. They had not been asked if
they wished to depart from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received on board the steamers
by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The
two steamers with their unwilling passengers sailed for Davao during the night of October
25.
The vessels reached their destination at Davao on October 29. The women were landed
and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by
Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as
parties in the case, had no previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings to these women and the
serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations with men, others went
to work in different capacities, others assumed a life unknown and disappeared, and a
goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a member of the Supreme
Court. Subsequently, the application, through stipulation of the parties, was made to
include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The
application set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The
writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because the petitioners were
not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did
not extend beyond the boundaries of the city of Manila. According to an exhibit attached to
the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to
question of a member of the court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of November 4, that directed Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of
Davao, to bring before the court the persons therein named, alleged to be deprived of their
liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the clerk
of the Supreme Court sitting as commissioners. On the day named in the order, December
2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court
by the respondents. It has been shown that three of those who had been able to come
back to Manila through their own efforts, were notified by the police and the secret service
to appear before the court. The fiscal appeared, repeated the facts more comprehensively,
reiterated the stand taken by him when pleading to the original petition copied a telegram
from the Mayor of the city of Manila to the provincial governor of Davao and the answer
thereto, and telegrams that had passed between the Director of Labor and the attorney for
that Bureau then in Davao, and offered certain affidavits showing that the women were
contained with their life in Mindanao and did not wish to return to Manila. Respondents
Sales answered alleging that it was not possible to fulfill the order of the Supreme Court
because the women had never been under his control, because they were at liberty in the
Province of Davao, and because they had married or signed contracts as laborers.
Respondent Yigo answered alleging that he did not have any of the women under his
control and that therefore it was impossible for him to obey the mandate. The court, after
due deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the court
nor explained their failure to do so, and therefore directed that those of the women not in
Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on
January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless
the respondents should demonstrate some other legal motives that made compliance
impossible. It was further stated that the question of whether the respondents were in
contempt of court would later be decided and the reasons for the order announced in the
final decision.
Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken
before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of
First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents
technically presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the respondents.
Attorneys for the respondents, by their returns, once again recounted the facts and further
endeavored to account for all of the persons involved in the habeas corpus. In substance, it
was stated that the respondents, through their representatives and agents, had succeeded
in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn statements; that fifty-nine had
already returned to Manila by other means, and that despite all efforts to find them twenty-
six could not be located. Both counsel for petitioners and the city fiscal were permitted to
submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and
Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an
hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto
Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the
replica al memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women
were isolated from society, and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble attempt to prove that
the women left voluntarily and gladly, that such was not the case is shown by the mere
fact that the presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and stealthy acts.
Indeed, this is a fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress these
persons from Manila to another distant locality within the Philippine Islands? We turn to the
statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a
hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the
Revised Ordinances of the city of Manila provide for the conviction and punishment by a
court of justice of any person who is a common prostitute. Act No. 899 authorizes the
return of any citizen of the United States, who may have been convicted of vagrancy, to
the homeland. New York and other States have statutes providing for the commitment to
the House of Refuge of women convicted of being common prostitutes. Always a law! Even
when the health authorities compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to some law or order. But one
can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens to change their domicile from Manila to another locality.
On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important
as to be found in the Bill of Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered
so elementary in nature as not even to require a constitutional sanction. Even the
Governor-General of the Philippine Islands, even the President of the United States, who
has often been said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of
a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of
police could, at their mere behest or even for the most praiseworthy of motives, render the
liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand
other municipalities of the Philippines have the same privilege. If these officials can take to
themselves such power, then any other official can do the same. And if any official can
exercise the power, then all persons would have just as much right to do so. And if a
prostitute could be sent against her wishes and under no law from one locality to another
within the country, then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn
him, but by lawful judgment of his peers or by the law of the land. We will sell to no man,
we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law.
The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme
Court of the United States, "is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The
very idea," said Justice Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any material right essential to
the enjoyment of life, at the mere will of another, seems to be intolerable in any country
where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas
corpus, and makes clear why we said in the very beginning that the primary question was
whether the courts should permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but
it was never intended effectively and promptly to meet any such situation as that now
before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character
in force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall
be punished by a fine of not less than three hundred and twenty-five and not more than
three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers
find that any public officer has violated this provision of law, these prosecutors will institute
and press a criminal prosecution just as vigorously as they have defended the same official
in this action. Nevertheless, that the act may be a crime and that the persons guilty
thereof can be proceeded against, is no bar to the instant proceedings. To quote the words
of Judge Cooley in a case which will later be referred to "It would be a monstrous
anomaly in the law if to an application by one unlawfully confined, ta be restored to his
liberty, it could be a sufficient answer that the confinement was a crime, and therefore
might be continued indefinitely until the guilty party was tried and punished therefor by
the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416,
434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy
to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3)
that the person in question are not restrained of their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring the women from
Davao.
The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the city
officials made it impossible for the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or judge to grant a writ of
habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly
imprisoned or restrained of his liberty, though no application be made therefor. (Code of
Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general
rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for
habeas corpus should be presented to the nearest judge of the court of first instance. But
this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme
Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal
Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an inferior court rests in the discretion of
the Supreme Court and is dependent on the particular circumstances. In this instance it
was not shown that the Court of First Instance of Davao was in session, or that the women
had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their
attorney, were in Manila; it was shown that the case involved parties situated in different
parts of the Islands; it was shown that the women might still be imprisoned or restrained of
their liberty; and it was shown that if the writ was to accomplish its purpose, it must be
taken cognizance of and decided immediately by the appellate court. The failure of the
superior court to consider the application and then to grant the writ would have amounted
to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials of that city, who handed them over
to other parties, who deposited them in a distant region, deprived these women of freedom
of locomotion just as effectively as if they had been imprisoned. Placed in Davao without
either money or personal belongings, they were prevented from exercising the liberty of
going when and where they pleased. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private
citizen and place him beyond the boundaries of the municipality, and then, when called
upon to defend his official action, could calmly fold his hands and claim that the person
was under no restraint and that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to
whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport these women from the city of
Manila to Davao, the same officials must necessarily have the same means to return them
from Davao to Manila. The respondents, within the reach of process, may not be permitted
to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her birthright of liberty
has no effective recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities fails
to reveal any analogous case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ of habeas corpus would issue from the Supreme Court to a person
within the jurisdiction of the State to bring into the State a minor child under guardianship
in the State, who has been and continues to be detained in another State. The membership
of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the
court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished American judges and law-
writers, with whom concurred Christiancy, J., held that the writ should issue. Since the
opinion of Justice Campbell was predicated to a large extent on his conception of the
English decisions, and since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition of right, bill of rights and
habeas corpus acts, it should now be discovered that evasion of that great clause for the
protection of personal liberty, which is the life and soul of the whole instrument, is so easy
as is claimed here. If it is so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they would, on the subject
being brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of
imprisonment within the state seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by compelling
the oppressor to release his constraint. The whole force of the writ is spent upon the
respondent, and if he fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be compelled to release his
grasp. The difficulty of affording redress is not increased by the confinement being beyond
the limits of the state, except as greater distance may affect it. The important question is,
where the power of control exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been
taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave defendant until a certain date
to produce the child, but he did not do so. His return stated that the child before the
issuance of the writ had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the
possession of the child before the issuing of the writ, the defendant had no longer power to
produce the child, that might be an answer; but in the absence of any lawful reason he is
bound to produce the child, and, if he does not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many efforts have been made in argument to shift
the question of contempt to some anterior period for the purpose of showing that what was
done at some time prior to the writ cannot be a contempt. But the question is not as to
what was done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in obedience to its
commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect
the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo,
Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed
to the defendant to have before the circuit court of the District of Columbia three colored
persons, with the cause of their detention. Davis, in his return to the writ, stated on oath
that he had purchased the negroes as slaves in the city of Washington; that, as he
believed, they were removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his custody. The
evidence tended to show that Davis had removed the negroes because he suspected they
would apply for a writ of habeas corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the negroes, and Davis being present in
court, and refusing to produce them, ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be otherwise discharged in due course of
law. The court afterwards ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624;
Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of
the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not,
whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record discloses, the
Mayor of the city of Manila waited until the 21st of November before sending a telegram to
the provincial governor of Davao. According to the response of the attorney for the Bureau
of Labor to the telegram of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the parties in question being
brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of the
writ; or (2) they could have shown by affidavit that on account of sickness or infirmity
those persons could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney waived the right
to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of
the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the
signers, were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-production of the persons were
far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example,
in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court,
said: "We thought that, having brought about that state of things by his own illegal act, he
must take the consequences; and we said that he was bound to use every effort to get the
child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything
that mortal man could do in the matter; and that the court would only accept clear proof of
an absolute impossibility by way of excuse." In other words, the return did not show that
every possible effort to produce the women was made by the respondents. That the court
forebore at this time to take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials and the judiciary, and
because it desired to give the respondents another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come
to conclude that there is a substantial compliance with it. Our finding to this effect may be
influenced somewhat by our sincere desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it should receive an executive investigation.
If any particular individual is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with
it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor
of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez,
and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto
Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not
on the vindictive principle. Only occasionally should the court invoke its inherent power in
order to retain that respect without which the administration of justice must falter or fail.
Nevertheless when one is commanded to produce a certain person and does not do so,
and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An
officer's failure to produce the body of a person in obedience to a writ of habeas corpus
when he has power to do so, is a contempt committed in the face of the court. (Ex parte
Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of
the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it
is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have
been drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from the record the memorandum
of attorney for the petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the constabulary, who conducted
the negotiations with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the unfortunate women to
Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the
social evil was commendable. His methods were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as for a contempt.
Some members of the court are inclined to this stern view. It would also be possible to find
that since respondent Lukban did comply substantially with the second order of the court,
he has purged his contempt of the first order. Some members of the court are inclined to
this merciful view. Between the two extremes appears to lie the correct finding. The failure
of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such
respect without being unduly oppressive such an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is necessary.
The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be
in contempt of court. Respondent Lukban is found in contempt of court and shall pay into
the office of the clerk of the Supreme Court within five days the sum of one hundred pesos
(P100). The motion of the fiscal of the city of Manila to strike from the record the Replica al
Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed
against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the
hope that this decision may serve to bulwark the fortifications of an orderly government of
laws and to protect individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of
the habeas corpus proceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to
oblige a great number of women of various ages, inmates of the houses of prostitution
situated in Gardenia Street, district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of
public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this
reason, when more than one hundred and fifty women were assembled and placed aboard
a steamer and transported to Davao, considering that the existence of the said houses of
prostitution has been tolerated for so long a time, it is undeniable that the mayor of the
city, in proceeding in the manner shown, acted without authority of any legal provision
which constitutes an exception to the laws guaranteeing the liberty and the individual
rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in
complying with the order of the mayor of the city; neither do we believe in the necessity of
taking them to the distant district of Davao. The said governmental authority, in carrying
out his intention to suppress the segregated district or the community formed by those
women in Gardenia Street, could have obliged the said women to return to their former
residences in this city or in the provinces, without the necessity of transporting them to
Mindanao; hence the said official is obliged to bring back the women who are still in Davao
so that they may return to the places in which they lived prior to their becoming inmates of
certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do
not find any apparent disobedience and marked absence of respect in the steps taken by
the mayor of the city and his subordinates, if we take into account the difficulties
encountered in bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear that the said women
were living together in a given place. It was not because they were really detained, but
because on the first days there were no houses in which they could live with a relative
independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who
continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and
whether he has acted in good or bad faith in proceeding to dissolve the said community of
prostitutes and to oblige them to change their domicile, it is necessary to consider not only
the rights and interests of the said women and especially of the patrons who have been
directing and conducting such a reproachable enterprise and shameful business in one of
the suburbs of this city, but also the rights and interests of the very numerous people of
Manila where relatively a few transients accidentally and for some days reside, the
inhabitants thereof being more than three hundred thousand (300,000) who can not, with
indifference and without repugnance, live in the same place with so many unfortunate
women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social
morality are to be taken into account, it is not possible to sustain that it is legal and
permissible to establish a house of pandering or prostitution in the midst of an enlightened
population, for, although there were no positive laws prohibiting the existence of such
houses within a district of Manila, the dictates of common sense and dictates of conscience
of its inhabitants are sufficient to warrant the public administration, acting correctly, in
exercising the inevitable duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it,
although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his
right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease
cannot invoke in his favor the constitutional law which guarantees his liberty and individual
rights, should the administrative authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in order to free from contagious the great
majority of the inhabitants of the country who fortunately do not have such diseases. The
same reasons exist or stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first persons named have
contracted their diseases without their knowledge and even against their will, whereas the
unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men
of all classes, notwithstanding the cleanliness and precaution which they are wont to
adopt, gives way to the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease among men and women,
is still prejudicial to the human species in the same degree, scope, and seriousness as
cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce
great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which
can give her sufficient remuneration for her subsistence, prefers to put herself under the
will of another woman who is usually older than she is and who is the manager or owner of
a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is
undeniable that she voluntarily and with her own knowledge renounces her liberty and
individual rights guaranteed by the Constitution, because it is evident that she can not join
the society of decent women nor can she expect to get the same respect that is due to the
latter, nor is it possible for her to live within the community or society with the same
liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life,
she should therefore be comprised within that class which is always subject to the police
and sanitary regulations conducive to the maintenance of public decency and morality and
to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions
adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but
those who have been worrying so much about the prejudice resulting from a governmental
measure, which being a very drastic remedy may be considered arbitrary, have failed to
consider with due reflection the interests of the inhabitants of this city in general and
particularly the duties and responsibilities weighing upon the authorities which administer
and govern it; they have forgotten that many of those who criticize and censure the mayor
are fathers of families and are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of
the abnormal life they assumed, were obliged to change their residence not by a private
citizen but by the mayor of the city who is directly responsible for the conservation of
public health and social morality, the latter could take the step he had taken, availing
himself of the services of the police in good faith and only with the purpose of protecting
the immense majority of the population from the social evils and diseases which the
houses of prostitution situated in Gardenia Street have been producing, which houses have
been constituting for years a true center for the propagation of general diseases and other
evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said
houses of prostitution and the change of the domicile of the inmates thereof, the mayor
did not in bad faith violate the constitutional laws which guarantees the liberty and the
individual rights of every Filipino, inasmuch as the women petitioners do not absolutely
enjoy the said liberty and rights, the exercise of which they have voluntarily renounced in
exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the
administrative authorities similar measures, more or less rigorous, respecting prostitutes,
considering them prejudicial to the people, although it is true that in the execution of such
measures more humane and less drastic procedures, fortiter in re et suaviter in forma,
have been adopted, but such procedures have always had in view the ultimate object of
the Government for the sake of the community, that is, putting an end to the living
together in a certain place of women dedicated to prostitution and changing their domicile,
with the problematical hope that they adopt another manner of living which is better and
more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the said women who are at present found in
Davao, and who desire to return to their former respective residences, not in Gardenia
Street, Sampaloc District, with the exception of the prostitutes who should expressly make
known to the clerk of court their preference to reside in Davao, which manifestation must
be made under oath. This resolution must be transmitted to the mayor within the shortest
time possible for its due compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in
these proceedings, with respect to the finding as to the importance of the contempt
committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila,
and the consequent imposition upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the
mayor of the city of Manila waited until the 21st of November before sending a telegram to
the provincial governor of Davao. According to the response of the Attorney for the Bureau
of Labor to the telegram of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the parties in question being
brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1)
produced the bodies of the persons according to the command of the writ; (2) shown by
affidavits that on account of sickness or infirmity the said women could not safely be
brought before this court; and (3) presented affidavits to show that the parties in question
or their lawyers waived their right to be present. According to the same decision, the said
respondents ". . . did not produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not present writings, that
waived the right to be present by those interested. Instead, a few stereotyped affidavits
purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated by the fact that during this time they were easily
to be found in the municipality of Davao, and that about this number either returned at
their own expense or were produced at the second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first
order was made, would have been warranted summarily in finding the respondent guilty of
contempt of court, and in sending them to jail until they obeyed the order. Their excuses
for the non production of the persons were far from sufficient." To corroborate this, the
majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q.
B. D., 283) and added "that the return did not show that every possible effort to produce
the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case
discussed, my opinion was that Mayor Lukban should have been immediately punished for
contempt. Nevertheless, a second order referred to in the decision was issued on
December 10, 1918, requiring the respondents to produce before the court, on January 13,
1919, the women who were not in Manila, unless they could show that it was impossible to
comply with the said order on the two grounds previously mentioned. With respect to this
second order, the same decision has the following to say:
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come
to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date
of the issuance of the first order on November 4th till the 21st of the same month before
taking the first step for compliance with the mandate of the said order; he waited till the
21st of November, as the decision says, before he sent a telegram to the provincial
governor o f Davao and naturally this half-hearted effort, as is so qualified in the decision,
resulted in that none of the women appeared before this court on December 2nd. Thus, the
said order was not complied with, and in addition to this noncompliance there was the
circumstances that seven of the said women having returned to Manila at their own
expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the
trial and to the attorney for the respondents, were not produced before the court by the
respondents nor did the latter show any effort to present them, in spite of the fact that
their attention was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the
respondents, on January 13th, the day fixed for the protection of the women before this
court, presented technically the seven (7) women above-mentioned who had returned to
the city at their own expense and the other eight (8) women whom the respondents
themselves brought to Manila, alleging moreover that their agents and subordinates
succeeded in bringing them from Davao with their consent; that in Davao they found
eighty-one (81) women who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already
returned to Manila, but notwithstanding the efforts made to find them it was not possible
to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one
hundred and eighty-one (181) women who, as has been previously said, have been illegally
detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against
their will, only eight (8) have been brought to Manila and presented before this court by
the respondents in compliance with the said two orders. Fifty-nine (59) of them have
returned to Manila through other means not furnished by the respondents, twenty-six of
whom were brought by the attorney for the petitioners, Mendoza, on his return from
Davao. The said attorney paid out of his own pocket the transportation of the said twenty-
six women. Adding to these numbers the other seven (7) women who returned to this city
at their own expense before January 13 we have a total of sixty-six (66), which evidently
proves, on the one hand, the falsity of the allegation by the respondents in their first
answer at the trial of December 2, 1918, giving as one of the reasons for their inability to
present any of the said women that the latter were content with their life in Mindanao and
did not desire to return to Manila; and, on the other hand, that the respondents, especially
the first named, that is Mayor Justo Lukban, who acted as chief and principal in all that
refers to the compliance with the orders issued by this court, could bring before December
2nd, the date of the first hearing of the case, as well as before January 13th, the date fixed
for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the
majority decision, inasmuch as the said respondent could count upon the aid of the
Constabulary forces and the municipal police, and had transportation facilities for the
purpose. But the said respondent mayor brought only eight (8) of the women before this
court on January 13th. This fact can not, in my judgment, with due respect to the majority
opinion, justify the conclusion that the said respondent has substantially complied with the
second order of this court, but on the other hand demonstrates that he had not complied
with the mandate of this court in its first and second orders; that neither of the said orders
has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who
is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order
confirms the contempt committed by non-compliance with the first order and constitutes a
new contempt because of non-compliance with the second, because of the production of
only eight (8) of the one hundred and eighty-one (181) women who have been illegally
detained by virtue of his order and transported to Davao against their will, committing the
twenty-six (26) women who could not be found in Davao, demonstrates in my opinion that,
notwithstanding the nature of the case which deals with the remedy of habeas corpus,
presented by the petitioners and involving the question whether they should or not be
granted their liberty, the respondent has not given due attention to the same nor has he
made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due
to justice; and lastly, he has created and placed obstacles to the administration of justice
in the said habeas corpus proceeding, thus preventing, because of his notorious
disobedience, the resolution of the said proceeding with the promptness which the nature
of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of
the court; and he is guilty of contempt whose conduct is such as tends to bring the
authority and administration of the law into disrespect or disregard. . . ." (Ruling Case Law,
vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or
attempt to obstruct the service of legal process. If a person hinders or prevents the service
of process by deceiving the officer or circumventing him by any means, the result is the
same as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p.
503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for
establishing justice, since true respect never comes in that way, it is apparent nevertheless
that the power to enforce decorum in the courts and obedience to their orders and just
measures is so essentially a part of the life of the courts that it would be difficult to
conceive of their usefulness or efficiency as existing without it. Therefore it may be said
generally that where due respect for the courts as ministers of the law is wanting, a
necessity arises for the use of compulsion, not, however, so much to excite individual
respect as to compel obedience or to remove an unlawful or unwarranted interference with
the administration of justice. (Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from
the earliest times. In England it has been exerted when the contempt consisted of
scandalizing the sovereign or his ministers, the law-making power, or the courts. In the
American states the power to punish for contempt, so far as the executive department and
the ministers of state are concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost universally preserved so far
as regards the judicial department. The power which the courts have of vindicating their
own authority is a necessary incident to every court of justice, whether of record or not;
and the authority for issuing attachments in a proper case for contempts out of court, it
has been declared, stands upon the same immemorial usage as supports the whole fabric
of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss
of the prestige of the authority of the court which issued the said orders, which loss might
have been caused by noncompliance with the same orders on the part of the respondent
Justo Lukban; the damages which might have been suffered by some of the women
illegally detained, in view of the fact that they were not brought to Manila by the
respondents to be presented before the court and of the further fact that some of them
were obliged to come to this city at their own expense while still others were brought to
Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the
resolution of the petition interposed by the said petitioners and which was due to the fact
that the said orders were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon the respondent Justo
Lukban the penalty corresponding to the contempt committed by him, a penalty which,
according to section 236 of the Code of Civil Procedure, should consist of a fine not
exceeding P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public
authority, the mayor of the city of Manila, the first executive authority of the city, and
consequently, the person obliged to be the first in giving an example of obedience and
respect for the laws and the valid and just orders of the duly constituted authorities as well
as for the orders emanating from the courts of justice, and in giving help and aid to the
said courts in order that justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the
costs should be charged against him. Lastly, I believe it to be my duty to state here that
the records of this proceeding should be transmitted to the Attorney-General in order that,
after a study of the same and deduction from the testimony which he may deem
necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to
the provincial fiscal of Davao, both the latter shall present the corresponding informations
for the prosecution and punishment of the crimes which have been committed on the
occasion when the illegal detention of the women was carried into effect by Mayor Justo
Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will
be one of the means whereby the just hope expressed in the majority decision will be
realized, that is, that in the Philippine Islands there should exist a government of laws and
not a government of men and that this decision may serve to bulwark the fortifications of
an orderly Government of laws and to protect individual liberty from illegal encroachments.
Villavicencio vs Lukban L-14639
Facts:
Justo Lukban as Manila Mayor together with the police officer, took custody of 170 women
at the night of October 25 beyond the latter's consent and knowledge and thereafter were
shipped to Davao City where they were signed as laborers.
A writ of habeas corpus was filed against the mayor on behalf of those women. The court
granted the writ, but the mayor was not able to bring any of the women before the court
on the stipulated date.
Issue:
Whether or not the act of mayor has a legal basis.
Held:
The supreme court said that the mayor's acts were not legal. His intent of exterminating
vice was commendable, but there was no law saying that he could force filipino women to
change their domicile from manila to nother place. The women, said the court, although in
a sense "lepers of society" were still filipino citizens and such they were entitled to the
constitutional enjoyed by all other filipino citizens. The right to freedom of domicile was
such a fundamental right that its suppression could considered tantamount to slavery.
The supreme court upheld the right of filipino citizens to freedom of domicile or the Liberty
of abode. "Ours is a government of laws and not of men."
G.R. No. L-14639 March 25, 1919ZACARIAS VILLAVICENCIO, ET AL. vs. JUSTO LUKBAN, ET
AL.
Issue:
The writ of Habeas Corpus was filed by the petitioner, with the prayer that the respondent
produce around 170 women whom Justo Lukban et, al deported to Davao. Liberty of abode
was also raised versus the power of the executive of the Municipality in deporting the
women without their knowledge in his capacity as Mayor.
Facts:
Justo Lukban as Manila City's Mayor together with Anton Hohmann, the city's Chief of
Police, took custody of about 170 women at the night of October 25 beyond the latters
consent and knowledge and thereafter were shipped to Mindanao specifically in Davao
where they were signed as laborers. Said women are inmates of the houses of prostitution
situated in Gardenia Street, in the district of Sampaloc.
That when the petitioner filed for habeas corpus, the respondent moved to dismiss the
case saying that those women were already out of their jurisdiction and that , it should be
filed in the city of Davao instead.
The court ruled in favor of the petitioner with the instructions;
For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of the
writ; or (2) they could have shown by affidavit that on account of sickness or infirmity
those persons could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney waived the right
to be present.
Held:
The court concluded the case by granting the parties aggrieved the sum of 400 pesos
each, plus 100 pesos for nominal damage due to contempt of court. Reasoning further that
if the chief executive of any municipality in the Philippines could forcibly and illegally take
a private citizen and place him beyond the boundaries of the municipality, and then, when
called upon to defend his official action, could calmly fold his hands and claim that the
person was under no restraint and that he, the official, had no jurisdiction over this other
municipality.
We believe the true principle should be that, if the respondent is within the jurisdiction of
the court and has it in his power to obey the order of the court and thus to undo the wrong
that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is
addressed has illegally parted with the custody of a person before the application for the
writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the
same officials must necessarily have the same means to return them from Davao to
Manila. The respondents, within the reach of process, may not be permitted to restrain a
fellow citizen of her liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of liberty has no
effective recourse. The great writ of liberty may not thus be easily evaded.
VILLAVICENCIO v. LUKBAN
39 PHIL 778
FACTS:
Justo Lukban, mayor of Manila, ordered the district of ill-repute women closed. One
hundred and seventy women were deported to Davao without their knowledge and
consent. The women were received as laborers in a banana plantation. Some of the women
were able to escape and return to Manila. The attorney for the relatives and friends of a
considerable number of the deportees presented an application for heabes corpus to the
Supreme Court
ISSUE:
1) Whether or not the respondents had authority to deport the women to Davao; and
2) Whether or not the City of Manila has jurisdiction to issue a writ of habeas corpus to
Davao
HELD:
The respondents had no authority to deport the women. No official, no matter how high, is
above the law. The courts are the forum which function to safeguard liberty and to punish
official transgressors. The essential object and purpose of writ of habeas corpus is to
inquire into all manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal. If the mayor and the chief of police could deport the women, they must
have the means to return them from Davao to Manila. The respondents may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile
and to avow the act with impunity in the courts. The great writ of liberty may not be easily
evaded. No one of the defense offered constituted a legitimate bar to the granting of the
writ of habeas corpus.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON.
JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON.
ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation
and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of
Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E.
Agpalo and Solicitor Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor
vehicles is assailed in this prohibition proceeding as being violative of the constitutional
guarantee of due process and, insofar as the rules and regulations for its implementation
are concerned, for transgressing the fundamental principle of non- delegation of legislative
power. The Letter of Instruction is stigmatized by petitioner who is possessed of the
requisite standing, as being arbitrary and oppressive. A temporary restraining order as
issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce
Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works,
Transportation and Communications; and Baltazar Aquino, Minister of Public Highways;
were to answer. That they did in a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the
imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on
is a valid police power measure. Nor could the implementing rules and regulations issued
by respondent Edu be considered as amounting to an exercise of legislative power.
Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos,
issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the
major causes of fatal or serious accidents in land transportation is the presence of
disabled, stalled or parked motor vehicles along streets or highways without any
appropriate early warning device to signal approaching motorists of their presence;
[Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna
Convention which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety signs
and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the
interest of safety on all streets and highways, including expressways or limited access
roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at
all times in their motor vehicles at least one (1) pair of early warning device consisting of
triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the
base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is
parked for thirty (30) minutes or more on any street or highway, including expressways or
limited access roads, the owner, user or driver thereof shall cause the warning device
mentioned herein to be installed at least four meters away to the front and rear of the
motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall
cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared
and issued to registered owners of motor vehicles, except motorcycles and trailers,
charging for each piece not more than 15 % of the acquisition cost. He shall also
promulgate such rules and regulations as are appropriate to effectively implement this
order. 4. All hereby concerned shall closely coordinate and take such measures as are
necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November
15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of
Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land
transportation Commissioner shall require every motor vehicle owner to procure from any
and present at the registration of his vehicle, one pair of a reflectorized early warning
device, as d bed of any brand or make chosen by mid motor vehicle . The Land
Transportation Commissioner shall also promulgate such rule and regulations as are
appropriate to effectively implement this order.'" 4 There was issued accordingly, by
respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They
were not enforced as President Marcos on January 25, 1977, ordered a six-month period of
suspension insofar as the installation of early warning device as a pre-registration
requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of
Instruction 7 the lifting of such suspension and directed the immediate implementation of
Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that
respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter
of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No.
229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning
Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1.
LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented
provided that the device may come from whatever source and that it shall have
substantially complied with the EWD specifications contained in Section 2 of said
administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is
equipped with the device, a pair of serially numbered stickers, to be issued free of charge
by this Commission, shall be attached to each EWD. The EWD. serial number shall be
indicated on the registration certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in
conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was
for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works,
transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model
13035, already properly equipped when it came out from the assembly lines with blinking
lights fore and aft, which could very well serve as an early warning device in case of the
emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the
implementing rules and regulations in Administrative Order No. 1 issued by the land
transportation Commission," 11 alleged that said Letter of Instruction No. 229, as
amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For
him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and
contrary to the precepts of our compassionate New Society." 12 He contended that they
are "infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because
[they] will make manufacturers and dealers instant millionaires at the expense of car
owners who are compelled to buy a set of the so-called early warning device at the rate of
P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the
precepts of a compassionate New Society [as being] compulsory and confiscatory on the
part of the motorists who could very well provide a practical alternative road safety device,
or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment
both the assailed Letters of Instructions and Memorandum Circular void and
unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112
(Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations
contained, the issues raised and the arguments adduced in the petition for prohibition with
writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the
respondents to file an answer thereto within ton (10) days from notice and not to move to
dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order]
effective as of this date and continuing until otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted.
Then on November 15, 1978, he Answer for respondents was submitted. After admitting
the factual allegations and stating that they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the
allegations and stating they lacked knowledge or information sufficient to form a belief as
to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in
paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that
Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as
well as Land transportation Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due process of law, equal
protection of law and undue delegation of police power, and that the same are likewise
oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis and for the reasons
alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who
contented himself with a rhetorical recital of his litany of grievances and merely invoked
the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the
assailed Letter of Instruction was a valid exercise of the police power and implementing
rules and regulations of respondent Edu not susceptible to the charge that there was
unlawful delegation of legislative power, there was in the portion captioned Special and
Affirmative Defenses, a citation of what respondents believed to be the authoritative
decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the
Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took
pains to refute in detail, in language calm and dispassionate, the vigorous, at times
intemperate, accusation of petitioner that the assailed Letter of Instruction and the
implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat,
its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly
joined. As noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power.
That is conceded by petitioner and is the main reliance of respondents. It is the submission
of the former, however, that while embraced in such a category, it has offended against
the due process and equal protection safeguards of the Constitution, although the latter
point was mentioned only in passing. The broad and expansive scope of the police power
which was originally Identified by Chief Justice Taney of the American Supreme Court in an
1847 decision as "nothing more or less than the powers of government inherent in every
sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice
Laurel, in the first leading decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare. Persons and
property could thus 'be subjected to all kinds of restraints and burdens in order to we the
general comfort, health and prosperity of the state.' Shortly after independence in 1948,
Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the
power to prescribe regulations to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. The concept was set forth in negative
terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary
power in the State which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society. In that sense it could be hardly distinguishable as noted by this Court in
Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest
and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the
most essential, insistent, and at least table powers, I extending as Justice Holmes aptly
pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the
exigencies of the times, even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow
or parochial in the past may be interwoven in the present with the well-being of the nation.
What is critical or urgent changes with the time.' The police power is thus a dynamic
agency, suitably vague and far from precisely defined, rooted in the conception that men
in organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to
communal peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the
fact that the particular police power measure challenged was clearly intended to promote
public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative
or executive act of that character. None has been called to our attention, an indication of
its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of
the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of which was: "To promote
safe transit upon, and. avoid obstruction on roads and streets designated as national roads
* * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the
1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was
likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his failure to
lay the necessary factual foundation to rebut the presumption of validity. So it was held in
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The
rationale was clearly set forth in an excerpt from a decision of Justice Branders of the
American Supreme Court, quoted in the opinion: "The statute here questioned deals with a
subject clearly within the scope of the police power. We are asked to declare it void on the
ground that the specific method of regulation prescribed is unreasonable and hence
deprives the plaintiff of due process of law. As underlying questions of fact may condition
the constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record in overthrowing the
statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer "The President certainly had in
his possession the necessary statistical information and data at the time he issued said
letter of instructions, and such factual foundation cannot be defeated by petitioner's naked
assertion that early warning devices 'are not too vital to the prevention of nighttime
vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000
motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition).
Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by
this Honorable Court: Further: "It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the
statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the
verity of petitioner's statistics, is that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that could mean the death of
390 or more Filipinos and the deaths that could likewise result from head-on or frontal
collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such
Letter of Instruction is encased in the armor of prior, careful study by the Executive
Department. To set it aside for alleged repugnancy to the due process clause is to give
sanction to conjectural claims that exceeded even the broadest permissible limits of a
pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter
of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning
device requirement is not an expensive redundancy, nor oppressive, for car owners whose
cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,'
2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes
on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps
(the Kinke) * * * because: Being universal among the signatory countries to the said 1968
Vienna Conventions, and visible even under adverse conditions at a distance of at least
400 meters, any motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads, highways or
expressways, will conclude, without thinking, that somewhere along the travelled portion
of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled
or disabled which obstructs or endangers passing traffic. On the other hand, a motorist
who sees any of the aforementioned other built in warning devices or the petroleum lamps
will not immediately get adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an
ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted
in the Answer of the Solicitor General "There is nothing in the questioned Letter of
Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or
compels motor vehicle owners to purchase the early warning device prescribed thereby. All
that is required is for motor vehicle owners concerned like petitioner, to equip their motor
vehicles with a pair of this early warning device in question, procuring or obtaining the
same from whatever source. In fact, with a little of industry and practical ingenuity, motor
vehicle owners can even personally make or produce this early warning device so long as
the same substantially conforms with the specifications laid down in said letter of
instruction and administrative order. Accordingly the early warning device requirement can
neither be oppressive, onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires at the expense of car
owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early
warning device requirement 'a more subtle racket may be committed by those called upon
to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try
to enforce said requirement in an unreasonable manner or to an unreasonable degree,
does not render the same illegal or immoral where, as in the instant case, the challenged
Letter of Instruction No. 229 and implementing order disclose none of the constitutional
defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not
premised on lack of power, the justification for a finding of unconstitutionality, but on the
pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put
it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears
repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions
of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the
province of the courts to supervise legislation and keep it within the bounds of propriety
and common sense. That is primarily and exclusively a legislative concern.' There can be
no possible objection then to the observation of Justice Montemayor. 'As long as laws do
not violate any Constitutional provision, the Courts merely interpret and apply them
regardless of whether or not they are wise or salutary. For they, according to Justice
Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the
wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, that only congressional power or competence, not the wisdom of
the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective
authority of each department and confined its jurisdiction to such a sphere. There would
then be intrusion not allowable under the Constitution if on a matter left to the discretion
of a coordinate branch, the judiciary would substitute its own. If there be adherence to the
rule of law, as there ought to be, the last offender should be courts of justice, to which
rightly litigants submit their controversy precisely to maintain unimpaired the supremacy
of legal norms and prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot
be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of
legislative power is equally without any support well-settled legal doctrines. Had petitioner
taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal,
he would not have the temerity to make such an assertion. An exempt from the aforecited
decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful
delegation, there must be a standard, which implies at the very least that the legislature
itself determines matters of principle and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to repel A standard thus defines legislative
policy, marks its maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be effected. It is
the criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to
be spelled out specifically. It could be implied from the policy and purpose of the act
considered as a whole. In the Reflector Law clearly, the legislative objective is public
safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the
roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision
announced not too long after the Constitution came into force and effect that the principle
of non-delegation "has been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the principle of
"subordinate legislation" not only in the United States and England but in practically all
modern governments.' He continued: 'Accordingly, with the growing complexity of modern
life, the multiplication of the subjects of governmental regulation, and the increased
difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature and toward the approval of the practice by
the courts.' Consistency with the conceptual approach requires the reminder that what is
delegated is authority non-legislative in character, the completeness of the statute when it
leaves the hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is
reinforced by this consideration. The petition itself quoted these two whereas clauses of
the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety, the 1968
Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.);
[Whereas], the said Vionna Convention, which was ratified by the Philippine Government
under P.D. No. 207, recommended the enactment of local legislation for the installation of
road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the
generally accepted principles of international law as part of the law of the land * * *." 36
The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character.
It is not for this country to repudiate a commitment to which it had pledged its word. The
concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover,
at war with the principle of international morality.
10. That is about all that needs be said. The rather court reference to equal protection
did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear,
positive, and categorical why such a casual observation should be taken seriously. In no
case is there a more appropriate occasion for insistence on what was referred to as "the
general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the
constitutionality of a law wig not be considered unless the point is specially pleaded,
insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at
the mere invocation of which a party to a lawsuit can rightfully expect that success will
crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is
immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the
restraining order issued on October 19, 1978 against the blanket enforcement of the
requirement that all motor vehicles be equipped with the so-called early warning device,
without even hearing the parties in oral argument as generally required by the Court in
original cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition
advances grave and serious grounds of assailing "the rules and regulations issued by the
Land Transportation Commission under Administrative Order No. 1 and Memorandum
Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of
Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is
oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the
precepts of our compassionate New Society," because of the following considerations, inter
alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles
with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore
and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c)
built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase
the E.W.D. specified in the challenged administrative order, whose effectivity and utility
have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid
refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the
prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor
vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the questioned E.W.D. for almost
900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and
petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over
the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would
mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned
E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D.,
such as the common petroleum lamps "kinke" which can be placed just as effectively in
front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles.
The respondents have not shown that they have availed of the powers and prerogatives
vested in their offices such as ridding the country of dilapidated trucks and vehicles which
are the main cause of the deplorable -highway accidents due to stoned vehicles,
establishing an honest and foolproof system of examination and licensing of motor vehicle
drivers so as to ban the reckless and irresponsible and a sustained education campaign to
instill safe driving habits and attitudes that can be carried out for much less than the P 50
million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the
petitioner for his civic mindedness in having filed the present petition g as capricious and
unreasonable the "all pervading police power" of the State instead of throwing the case out
of court and leaving the wrong impression that the exercise of police power insofar as it
may affect the life, liberty and property of any person is no longer subject to judicial
inquiry.
Facts
This case is a petition assailing the validity or the constitutionality of a Letter of Instruction
No. 229, issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or
drivers to procure early warning devices to be installed a distance away from such vehicle
when it stalls or is disabled. In compliance with such letter of instruction, the Commissioner
of the Land Transportation Office issued Administrative Order No. 1 directing the
compliance thereof.
This petition alleges that such letter of instruction and subsequent administrative order are
unlawful and unconstitutional as it violates the provisions on due process, equal protection
of the law and undue delegation of police power.
Issue
Whether or not the Letter of Instruction No. 229 and the subsequent Administrative Order
issued is unconstitutional
Ruling
The Supreme Court ruled for the dismissal of the petition. The statutes in question are
deemed not unconstitutional. These were definitely in the exercise of police power as such
was established to promote public welfare and public safety. In fact, the letter of
instruction is based on the constitutional provision of adopting to the generally accepted
principles of international law as part of the law of the land. The letter of instruction
mentions, as its premise and basis, the resolutions of the 1968 Vienna Convention on Road
Signs and Signals and the discussions on traffic safety by the United Nations - that such
letter was issued in consideration of a growing number of road accidents due to stalled or
parked vehicles on the streets and highways.
Agustin v Edu (1979) 88 SCRA 195
Facts:
Leovillo Agustin, the owner of a Beetle, challenged the constitutionality of Letter of
Instruction 229 and its implementing order No. 1 issued by LTO Commissioner Romeo Edu.
His car already had warning lights and did not want to use this.
The letter was promulgation for the requirement of an early warning device installed on a
vehicle to reduce accidents between moving vehicles and parked cars.
The LTO was the issuer of the device at the rate of not more than 15% of the acquisition
cost.
The triangular reflector plates were set when the car parked on any street or highway for
30 minutes. It was mandatory.
Petitioner: 1. LOI violated the provisions and delegation of police power, equal protection,
and due process/
2. It was oppressive because the make manufacturers and car dealers millionaires at the
expense f car owners at 56-72 pesos per set.
Hence the petition.
The OSG denied the allegations in par X and XI of the petition with regard to the
unconstitutionality and undue delegation of police power to such acts.
The Philippines was also a member of the 1968 Vienna convention of UN on road signs as a
regulation. To the petitioner, this was still an unlawful delegation of police power.
Issue:
Is the LOI constitutional? If it is, is it a valid delegation of police power?
Held: Yes on both. Petition dismissed.
Ratio:
Police power, according to the case of Edu v Ericta, which cited J. Taney, is nothing more or
less than the power of government inherent in every sovereignty.
The case also says that police power is state authority to enact legislation that may
interfere with personal liberty or property to promote the general welfare.
Primicias v Fulgoso- It is the power to describe regulations to promote the health, morals,
peace, education, good order, and general welfare of the people.
J. Carazo- government limitations to protect constitutional rights did not also intend to
enable a citizen to obstruct unreasonable the enactment of measures calculated to insure
communal peace.
There was no factual foundation on petitioner to refute validity.
Ermita Malate Hotel-The presumption of constitutionality must prevail in the absence of
factual record in over throwing the statute.
Brandeis- constitutionality must prevail in the absence of some factual foundation in
overthrowing the statute.
Even if the car had blinking lights, he must still buy reflectors. His claims that the statute
was oppressive was fantastic because the reflectors were not expensive.
SC- blinking lights may lead to confusion whether the nature and purpose of the driver is
concerned.
Unlike the triangular reflectors, whose nature is evident because its installed when parked
for 30 minutes and placed from 400 meters from the car allowing drivers to see clearly.
There was no constitutional basis for petitioner because the law doesnt violate any
constitutional provision.
LOI 229 doesnt force motor vehicle owners to purchase the reflector from the LTO. It only
prescribes rge requirement from any source.
The objective is public safety.
The Vienna convention on road rights and PD 207 both recommended enforcement for
installation of ewds. Bother possess relevance in applying rules with the decvlaration of
principles in the Constitution.
On the unlawful delegation of legislative power, the petitioners have no settled legal
doctrines.
Agustin vs. Edu 88 SCRA 195 (1979)
Facts:
The petitioner was an owner of a volkswagen bettle car, model 13035, already properly
equipped when it came out from the assembly lines with blinking lights fore and aft, which
could very well serve as an early warning devise in case of emergencies mentioned in
Letter of Instructions No.229, as amended as well as the Land Transportation Commission.
Respondent Land Transportation Commissioner Romeo Edu issued Memorandum Circular
No. 32 pursuant to Letter of Instruction NO. 229 as amended. It required the use of Early
Warning Devices on motor vehicles.
Issue:
Whether or not the Letter of Instructions as well as the implementing rules and regulations
were unlawful and constitutional.
Ruling:
The court held that the letter of instructions No. 229 as amended as well as the
implementing rules and regulations were valid and constitutional as a valid police power
measure.
The petition itself quoted these two whereas clauses of the assailed Letter of Instruction.
Whereas the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the Vienna Convention on Road Signs
and Signals and the United Nation ratified by the Philippine local legislation for the
installation of road safety sign and devices. It cannot be disputed then that this declaration
of principle found in the constitution possesses relevance because our country adopts the
generally accepted principle, thus become part of the law of the land.
The petition was dismissed.
Agustin vs Edu, 88 SCRA 195, L- 49112, February 22, 1979
Facts : This is a petition questioning the validity of a Letter of Instruction providing for an
early warning device mandatory for motor vehicles. It is assailed in this prohibition
proceeding as being violative to the constitutional guarantee of due process in as far as
the rules and regulations for its implementation are concerned.
The assailed Letter of Instruction No. 229 of President Ferdinand Marcos aimed to prevent
road accidents and in the interest of safety on all streets, highways including expressways.
All motorist and motor vehicle owners shall have at all times one pair of early warning
device. These hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Roads
and Signs and the United Nations Organization (UN). Philippine Government under P.D. No.
207 ratified the said Vienna convention requiring the installation of road signs and devices.
Herein respondent Edu in his capacity as Land Transportation Commisioner set forth the
implementing rules and regulations of the said instruction.
Issue : Whether or not the assailed Letter of Instruction is invalid and violated
constitutional guarantees of due process.
Held : The assailed Letter of Instruction was a valid exercise of police power and there was
no unlawful delegation of legislative power on the part of the respondent. As identified,
police power is a state authority to enact legislation that may interfere personal liberty or
property in order to promote the general welfare. In this case, the particular exercise of
police power was clearly intended to promote public safety.
It cannot be disputed that the Declaration of Principle found in the Constitution possesses
relevance: The Philippines ------ adopts the generally accepted principles of international
law as part of the law of the nation. Thus, as impressed in the 1968 Vienna Convention it
is not for this country to repudiate a commitment to which it had pledged its word. Our
countrys word was resembled in our own act of legislative ratification of the said Hague
and Vienna Conventions thru P.D. No. 207 . The concept of Pacta sunt servanda stands in
the way of such an attitude which is, moreoever, at war with the principle of international
morality.
In Santiago vs Far Eatern Broadcasting Company , it was held that the constitutionality of
the law will not be considered unless the point is specially pleaded, insisted upon and
adequately argued. Equal protection is not a talismanic formula at the mere invocation of
which a party to a lawsuit can rightfully expect success will crown his efforts. The law is
anything but that.
Petition is DISMISSED and the restraining order is lifted.
 AVANCEA, J.:

In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo
de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as
the National Defense Law. It is alleged that these two appellants, being Filipinos and having
reached the age of twenty years in 1936, willfully and unlawfully refused to register in the
military service between the 1st and 7th of April of said year, notwithstanding the fact that
they had been required to do so. The evidence shows that these two appellants were duly
notified by the corresponding authorities to appear before the Acceptance Board in order
to register for military service in accordance with law, and that the said appellants, in spite
of these notices, had not registered up to the date of the filing of the information.

The appellants do not deny these facts, but they allege in defense that they have not
registered in the military service because Primitivo de Sosa is fatherless and has a mother
and a brother eight years old to support, and Tranquilino Lagman also has a father to
support, has no military learnings, and does not wish to kill or be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and
one day of imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were
Republic of the Philippines sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of the
SUPREME COURT Constitution of the Philippines provides as follows:
Manila
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of
EN BANC this duty all citizens may be required by law to render personal military or civil service.

G.R. No. L-45892 July 13, 1938 The National Defense Law, in so far as it establishes compulsory military service, does not
go against this constitutional provision but is, on the contrary, in faithful compliance
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, therewith. The duty of the Government to defend the State cannot be performed except
vs. through an army. To leave the organization of an army to the will of the citizens would be to
TRANQUILINO LAGMAN, defendant-appellant. make this duty of the Government excusable should there be no sufficient men who
volunteer to enlist therein.1vvphl.nt
G.R. No. L-45893 July 13, 1938
In the United States the courts have held in a series of decisions that the compulsory
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, military service adopted by reason of the civil war and the world war does not violate the
vs. Constitution, because the power to establish it is derived from that granted to Congress to
PRIMITIVO DE SOSA, defendant-appellant. declare war and to organize and maintain an army. This is so because the right of the
Government to require compulsory military service is a consequence of its duty to defend
Severino P. Izon for appellants. the State and is reciprocal with its duty to defend the life, liberty, and property of the
Office of the Solicitor-General Tuason for appellee. citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it
was said that, without violating the Constitution, a person may be compelled by force, if
need be, against his will, against his pecuniary interests, and even against his religious or
political convictions, to take his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense. In the case of United States vs. Olson (253 Fed.,
233), it was also said that this is not deprivation of property without due process of law,
because, in its just sense, there is no right of property to an office or employment.
The circumstance that these decisions refer to laws enacted by reason on the actual
existence of war does not make our case any different, inasmuch as, in the last analysis,
what justifies compulsory military service is the defense of the State, whether actual or
whether in preparation to make it more effective, in case of need. The circumstance that
the appellants have dependent families to support does not excuse them from their duty to
present themselves before the Acceptance Board because, if such circumstance exists,
they can ask for determent in complying with their duty and, at all events, they can obtain
the proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69
of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the
appellants. So ordered.
Facts: In 1936, Tranquilino Lagman reached the age of 20. He is being compelled by
Section 60 of Commonwealth Act 1 (National Defense Law) to join the military service.
Lagman refused to do so because he has a father to support, has no military leanings and
he does not wish to kill or be killed. Lagman further assailed the constitutionality of the
said law.
ISSUE: Whether or not the National Defense Law is constitutional.
HELD: Yes. The duty of the Government to defend the State cannot be performed except
through an army. To leave the organization of an army to the will of the citizens would be to
make this duty of the Government excusable should there be no sufficient men who
volunteer to enlist therein. Hence, the National Defense Law, in so far as it establishes
compulsory military service, does not go against this constitutional provision but is, on the
contrary, in faithful compliance therewith. The defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render
personal military or civil service.
PEOPLE vs. LAGMAN
G.R. Nos. L-45892 and 45893
FACTS:
Appellants Tranquilino Lagman and Primitivo de Sosa are charged with a violation of
section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is alleged
that these two appellants, being Filipinos and having reached the age of twenty years in
1936, willfully and unlawfully refused to register in the mi litary service between the 1st
and 7th of April of said year, even though they h ad been required to do so. The two
appellants were duly notified to appear befor e the Acceptance Board in order to register
for military service but still did n ot register up to the date of the filing of the information.
Appellants argue that they did not register because de Sosa is fatherless and ha s a
mother and a brother eight years old to support, and Lagman also has a fathe r to support,
has no military learnings, and does not wish to kill or be killed.
The Court of First Instance sentenced them both to one month and one day of impr
isonment, with the costs.
ISSUE:
WON the National Defense Law (Sec 60, Commonwealth Act No. 1) was constitutional by
virtue of Section 2, Article II of the Constitution which states that:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfi llment of
this duty all citizens may be required by law to render personal milit ary or civil service.
HELD:
YES. Decision of CFI affirmed. The National Defense Law, in so far as it establi shes
compulsory military service, does not go against this constitutional provis ion but is, on the
contrary, in faithful compliance therewith. The duty of the G overnment to defend the State
cannot be performed except through an army. To lea ve the organization of an army to the
will of the citizens would be to make this duty of the Government excusable should there
be no sufficient men who voluntee r to enlist therein.
In US cases, it was stated that the right of the Government to require compulsor y military
service is a consequence of its duty to defend the State; and, that a person may be
compelled by force to take his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense.
What justifies compulsory military service is the defense of the State, whether actual or
whether in preparation to make it more effective, in case of need. The circumstances of
the appellants do not excuse them from their duty to present t hemselves before the
Acceptance Board because they can obtain the proper pecunia ry allowance to attend to
these family responsibilities (secs. 65 and 69 of Comm onwealth Act No. 1).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor
once again stands before the Court invoking her religious freedom and her Jehovah God in
a bid to save her family united without the benefit of legal marriage - and livelihood. The
State, on the other hand, seeks to wield its power to regulate her behavior and protect its
interest in marriage and family and the integrity of the courts where respondent is an
employee. How the Court will tilt the scales of justice in the case at bar will decide not only
the fate of respondent Escritor but of other believers coming to Court bearing grievances
on their free exercise of religion. This case comes to us from our remand to the Office of
the Court Administrator on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested
Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias
City, for an investigation of respondent Soledad Escritor, court interpreter in said court, for
living with a man not her husband, and having borne a child within this live-in
arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes
the image of the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.2 Consequently, respondent was charged
with committing "disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was already
a widow, her husband having died in 1998.4 She admitted that she started living with
Luciano Quilapio, Jr. without the benefit of marriage more than twenty years ago when her
husband was still alive but living with another woman. She also admitted that she and
Quilapio have a son.5 But as a member of the religious sect known as the Jehovahs
Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their religious beliefs and has the approval of
her congregation.6 In fact, after ten years of living together, she executed on July 28,
1991, a "Declaration of Pledging Faithfulness."7
For Jehovahs Witnesses, the Declaration allows members of the congregation who have
been abandoned by their spouses to enter into marital relations. The Declaration thus
makes the resulting union moral and binding within the congregation all over the world
except in countries where divorce is allowed. As laid out by the tenets of their faith, the
Jehovahs congregation requires that at the time the declarations are executed, the couple
cannot secure the civil authorities approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a matter of
practice, the marital status of the declarants and their respective spouses commission of
adultery are investigated before the declarations are executed.8 Escritor and Quilapios
declarations were executed in the usual and approved form prescribed by the Jehovahs
Witnesses,9 approved by elders of the congregation where the declarations were
executed,10 and recorded in the Watch Tower Central Office.11
Moreover, the Jehovahs congregation believes that once all legal impediments for the
couple are lifted, the validity of the declarations ceases, and the couple should legalize
their union. In Escritors case, although she was widowed in 1998, thereby lifting the legal
impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their
declarations remained valid.12 In sum, therefore, insofar as the congregation is concerned,
there is nothing immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in
asserting that her conjugal arrangement does not constitute disgraceful and immoral
conduct for which she should be held administratively liable,13 the Court had to determine
the contours of religious freedom under Article III, Section 5 of the Constitution, which
provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and
development of the religion clauses in the United States (U.S.) and the Philippines, we held
that in resolving claims involving religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the religion clauses in our Constitution; and (2) in deciding respondents plea of
exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which
must be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on
the ultimate issue of whether respondent was to be held administratively liable for there
was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus, in
the decision dated August 4, 2003, we remanded the complaint to the Office of the Court
Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene in
the case so it can:
(a) examine the sincerity and centrality of respondents claimed religious belief and
practice;
(b) present evidence on the states "compelling interest" to override respondents religious
belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least restrictive to
respondents religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT
APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO
THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled upon prior to the remand,
and constitute "the law of the case" insofar as they resolved the issues of which framework
and test are to be applied in this case, and no motion for its reconsideration having been
filed.16 The only task that the Court is left to do is to determine whether the evidence
adduced by the State proves its more compelling interest. This issue involves a pure
question of fact.
B. Law of the case
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years ago, is
misplaced to say the least. Since neither the complainant, respondent nor the government
has filed a motion for reconsideration assailing this ruling, the same has attained finality
and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a
crass contravention of elementary rules of procedure. Worse, insofar as it would overturn
the parties right to rely upon our interpretation which has long attained finality, it also
runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities
in Mr. Justice Carpios belated attempts to disturb settled issues, and that he had timely
presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of
the religion clauses, because "one cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in the recent past
in the United States without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience."17 We delved into the
conception of religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.18 Then, religion
developed on its own and became superior to the state,19 its subordinate,20 and even
becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the
Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and policies,
and the willing acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and emperors in exchange for
religions invaluable service. This was the context in which the unique experiment of the
principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not translated
in the First Amendment. That experiment had been launched four years earlier, when the
founders of the republic carefully withheld from the new national government any power to
deal with religion. As James Madison said, the national government had no "jurisdiction"
over religion or any "shadow of right to intermeddle" with it. 23
The omission of an express guaranty of religious freedom and other natural rights,
however, nearly prevented the ratification of the Constitution. The restriction had to be
made explicit with the adoption of the religion clauses in the First Amendment as they are
worded to this day. Thus, the First Amendment did not take away or abridge any power of
the national government; its intent was to make express the absence of power.24 It
commands, in two parts (with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted, were not designed to
serve contradictory purposes. They have a single goalto promote freedom of individual
religious beliefs and practices. In simplest terms, the Free Exercise Clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and practice,
while the Establishment Clause prohibits government from inhibiting religious belief with
rewards for religious beliefs and practices. In other words, the two religion clauses were
intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of non-
establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses interpretation and construction in the United
States, not because we are bound by their interpretation, but because the U.S. religion
clauses are the precursors to the Philippine religion clauses, although we have significantly
departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile
and fraught with inconsistencies whether within a Court decision or across decisions. For
while there is widespread agreement regarding the value of the First Amendment religion
clauses, there is an equally broad disagreement as to what these clauses specifically
require, permit and forbid. No agreement has been reached by those who have studied the
religion clauses as regards its exact meaning and the paucity of records in the U.S.
Congress renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence
on the religion clauses. First is the standard of separation, which may take the form of
either (a) strict separation or (b) the tamer version of strict neutrality or separation, or
what Mr. Justice Carpio refers to as the second theory of governmental neutrality. Although
the latter form is not as hostile to religion as the former, both are anchored on the
Jeffersonian premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of church-state
separation with a rigid reading of the principle. On the other hand, the second standard,
the benevolent neutrality or accommodation, is buttressed by the view that the wall of
separation is meant to protect the church from the state. A brief review of each theory is in
order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the
state from the church, and the states hostility towards religion allows no interaction
between the two. According to this Jeffersonian view, an absolute barrier to formal
interdependence of religion and state needs to be erected. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on believers.29 Only the complete
separation of religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a strict "wall of
separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history
and contemporary practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid from religion.31
For example, less than twenty-four hours after Congress adopted the First Amendments
prohibition on laws respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer.32
Thus, strict separationists are caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to.33
The tamer version of the strict separationist view, the strict neutrality or separationist
view, (or, the governmental neutrality theory) finds basis in Everson v. Board of
Education,34 where the Court declared that Jeffersons "wall of separation" encapsulated
the meaning of the First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require the state to be their
adversary. Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to handicap religions
than it is to favor them."35 The strict neutrality approach is not hostile to religion, but it is
strict in holding that religion may not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government action. It does not
permit, much less require, accommodation of secular programs to religious belief.36
The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Abington
School District v. Schempp,37 strict neutrality could lead to "a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.38 Professor Laurence Tribe commented in his authoritative
treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free
exercise clause. The Framers, whatever specific applications they may have intended,
clearly envisioned religion as something special; they enacted that vision into law by
guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising that the [U.S.]
Supreme Court has rejected strict neutrality, permitting and sometimes mandating
religious classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict separation
or strict neutrality, is that while the Jeffersonian wall of separation "captures the spirit of
the American ideal of church-state separation," in real life, church and state are not and
cannot be totally separate. This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement and
activity, resulting in the intersection of government and religion at many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of
the "wall of separation," associated with Williams, founder of the Rhode Island colony.
Unlike the Jeffersonian wall that is meant to protect the state from the church, the wall is
meant to protect the church from the state.41 This doctrine was expressed in Zorach v.
Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways,
in which there shall be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would be aliens to each
other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire protection to
religious groups. Policemen who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday;
"so help me God" in our courtroom oaths- these and all other references to the Almighty
that run through our laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the supplication with
which the Court opens each session: "God save the United States and this Honorable
Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee
the freedom to worship as one chooses. . . When the state encourages religious instruction
or cooperates with religious authorities by adjusting the schedule of public events, it
follows the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not would be
to find in the Constitution a requirement that the government show a callous indifference
to religious groups. . . But we find no constitutional requirement which makes it necessary
for government to be hostile to religion and to throw its weight against efforts to widen
their effective scope of religious influence. 43
Benevolent neutrality recognizes that religion plays an important role in the public life of
the United States as shown by many traditional government practices which, to strict
neutrality, pose Establishment Clause questions. Among these are the inscription of "In
God We Trust" on American currency; the recognition of America as "one nation under God"
in the official pledge of allegiance to the flag; the Supreme Courts time-honored practice
of opening oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of paying a
chaplain, usually of a particular Protestant denomination, to lead representatives in prayer.
These practices clearly show the preference for one theological viewpointthe existence
of and potential for intervention by a godover the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the building of low-cost
housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not
limited to the U.S. Court declaring the following acts as constitutional: a state hiring a
Presbyterian minister to lead the legislature in daily prayers,45 or requiring employers to
pay workers compensation when the resulting inconsistency between work and Sabbath
leads to discharge;46 for government to give money to religiously-affiliated organizations
to teach adolescents about proper sexual behavior;47 or to provide religious school pupils
with books;48 or bus rides to religious schools;49 or with cash to pay for state-mandated
standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses
are invoked in relation to governmental action, almost invariably in the form of legislative
acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be
challenged as unconstitutional, either because it violates the Free Exercise Clause or the
Establishment Clause or both. This is true whether one subscribes to the separationist
approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose
and general applicability, but may incidentally or inadvertently aid or burden religious
exercise. Though the government action is not religiously motivated, these laws have a
"burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the governments favored form
of religion, but to allow individuals and groups to exercise their religion without hindrance.
The purpose of accommodations is to remove a burden on, or facilitate the exercise of, a
persons or institutions religion. As Justice Brennan explained, the "government [may] take
religion into accountto exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."51 In the ideal world, the legislature would recognize the
religions and their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that are threatened
and burdened may turn to the courts for protection.52
Thus, what is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its
"burdensome effect," whether by the legislature or the courts.53 Most of the free exercise
claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral
law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S.
blossomed in the case of Sherbert v. Verner,55 which ruled that state regulation that
indirectly restrains or punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.56 According to Sherbert, when a law of general
application infringes religious exercise, albeit incidentally, the state interest sought to be
promoted must be so paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation
under the law as her employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In
laying down the standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct
prompted by religious principles of a kind within the reach of state legislation. If, therefore,
the decision of the South Carolina Supreme Court is to withstand appellants constitutional
challenge, it must be either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional right of free exercise, or because any
incidental burden on the free exercise of appellants religion may be justified by a
"compelling state interest in the regulation of a subject within the States constitutional
power to regulate. . . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to
merely show a rational relationship of the substantial infringement to the religious right
and a colorable state interest. "(I)n this highly sensitive constitutional area, [o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible
limitation."58 The Court found that there was no such compelling state interest to override
Sherberts religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing religious
liberty. The state, however, did not discharge this burden. The Court thus carved out for
Sherbert an exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court reasoned that
upholding the denial of Sherberts benefits would force her to choose between receiving
benefits and following her religion. This choice placed "the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday worship."
This germinal case of Sherbert firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the land;
but when general laws conflict with scruples of conscience, exemptions ought to be
granted unless some "compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even
inadvertently, a sincerely held religious belief or practice, the state must justify the burden
by demonstrating that the law embodies a compelling interest, that no less restrictive
alternative exists, and that a religious exemption would impair the states ability to
effectuate its compelling interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the highest level of judicial
scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of general application whenever unjustified
burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious
exemption was in order, notwithstanding that the law of general application had a criminal
penalty. Using heightened scrutiny, the Court overturned the conviction of Amish parents
for violating Wisconsin compulsory school-attendance laws. The Court, in effect, granted
exemption from a neutral, criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny the free exercise of religious
belief by its requirement, or that there is a state interest of sufficient magnitude to
override the interest claiming protection under the Free Exercise Clause. Long before there
was general acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing
this fundamental right was an equally firm, even if less explicit, prohibition against the
establishment of any religion. The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the expense of other interests
of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests
of the highest order and those not otherwise served can overbalance legitimate claims to
the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in the exercise of
their undoubted power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that religiously
grounded conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under regulations of
general applicability. . . .This case, therefore, does not become easier because respondents
were convicted for their "actions" in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in logic-tight
compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause
claims were subject to heightened scrutiny or compelling interest test if government
substantially burdened the exercise of religion; (b) heightened scrutiny or compelling
interest test governed cases where the burden was direct, i.e., the exercise of religion
triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e.,
the exercise of religion resulted in the forfeiture of a government benefit;63 and (c) the
Court could carve out accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected
conduct beyond speech, press, or worship was included in the shelter of freedom of
religion. Neither Sherberts refusal to work on the Sabbath nor the Amish parents refusal
to let their children attend ninth and tenth grades can be classified as conduct protected
by the other clauses of the First Amendment. Second, indirect impositions on religious
conduct, such as the denial of twenty-six weeks of unemployment insurance benefits to
Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder,
were prohibited. Third, as the language in the two cases indicate, the protection granted
was extensive. Only extremely strong governmental interests justified impingement on
religious conduct, as the absolute language of the test of the Free Exercise Clause
suggests. 64
Fourth, the strong language was backed by a requirement that the government provide
proof of the important interest at stake and of the dangers to that interest presented by
the religious conduct at issue. Fifth, in determining the injury to the governments interest,
a court was required to focus on the effect that exempting religious claimants from the
regulation would have, rather than on the value of the regulation in general. Thus, injury to
governmental interest had to be measured at the margin: assuming the law still applied to
all others, what would be the effect of exempting the religious claimant in this case and
other similarly situated religious claimants in the future? Together, the fourth and fifth
elements required that facts, rather than speculation, had to be presented concerning how
the governments interest would be harmed by excepting religious conduct from the law
being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would
impose a discipline to prevent manipulation in the balancing of interests. The fourth and
the fifth elements prevented the likelihood of exaggeration of the weight on the
governmental interest side of the balance, by not allowing speculation about the effects of
a decision adverse to those interests nor accepting that those interests would be defined
at a higher level of generality than the constitutional interests on the other side of the
balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the
degree of protection afforded to religiously motivated conduct. While not affording
absolute immunity to religious activity, a compelling secular justification was necessary to
uphold public policies that collided with religious practices. Although the members of the
U.S. Court often disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious conduct cases,
this general test established a strong presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that under Sherbert and Yoder, the Free
Exercise Clause provided individuals some form of heightened scrutiny protection, if not
always a compelling interest one.68 The 1990 case of Employment Division, Oregon
Department of Human Resources v. Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of
peyote, a hallucinogenic substance. Specifically, individuals challenged the states
determination that their religious use of peyote, which resulted in their dismissal from
employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion
required an exemption from an otherwise valid law. Scalia said that "[w]e have never held
that an individuals religious beliefs excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate. On the contrary, the record of
more than a century of our free exercise jurisprudence contradicts that proposition." 71
Scalia thus declared "that the right of free exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of general applicability of the ground that
the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." 72
Justice Scalias opinion then reviewed the cases where free exercise challenges had been
upheldsuch as Cantwell, Murdock, Follet, Pierce, and Yoderand said that none involved
the free exercise clause claims alone. All involved "the Free Exercise Clause in conjunction
with other constitutional protections, such as freedom of speech and of the press, or the
right of parents to direct the education of their children." 73 The Court said that Smith was
distinguishable because it did not involve such a "hybrid situation," but was a free exercise
claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context of the
denial of unemployment benefits; it did not create a basis for an exemption from criminal
laws. Scalia wrote that "[e]ven if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of
general applicability that burden religion. Justice Scalia said that "[p]recisely because we
are a cosmopolitan nation made up of people of almost conceivable religious preference,
and precisely because we value and protect that religious divergence, we cannot afford the
luxury of deeming presumptively invalid, as applied to the religious objector, every
regulation of conduct that does not protect an interest of the highest order." The Court said
that those seeking religious exemptions from laws should look to the democratic process
for protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and
the compelling justification approach were abandoned for evaluating laws burdening
religion; neutral laws of general applicability only have to meet the rational basis test, no
matter how much they burden religion. 77
Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the
compelling state interest test, asserting that "(t)he compelling state interest test
effectuates the First Amendments command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear and
compelling government interest of the highest order."78 She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling interest test reflects the
First Amendments mandate of preserving religious liberty to the fullest extent possible in a
pluralistic society." 79
Justice OConnor also disagreed with the majoritys description of prior cases and
especially its leaving the protection of minority religions to the political process. She said
that, "First Amendment was enacted precisely to protect the rights of those whose religious
practice are not shared by the majority and may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and
Marshall. The dissenting Justices agreed with Justice OConnor that the majority had
mischaracterized precedents, such as in describing Yoder as a "hybrid" case rather than as
one under the free exercise clause. The dissent also argued that strict scrutiny should be
used in evaluating government laws burdening religion. 81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan
majority of Congress noisily denounced the decision.83 Smith has the rather unusual
distinction of being one case that is almost universally despised (and this is not too strong
a word) by both the liberals and conservatives.84 Liberals chasten the Court for its hostility
to minority faiths which, in light of Smiths general applicability rule, will allegedly suffer at
the hands of the majority faith whether through outright hostility or neglect. Conservatives
bemoan the decision as an assault on religious belief leaving religion, more than ever,
subject to the caprice of an ever more secular nation that is increasingly hostile to religious
belief as an oppressive and archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as
exhibiting a shallow understanding of free exercise jurisprudence.86 First, the First
amendment was intended to protect minority religions from the tyranny of the religious
and political majority. 87 Critics of Smith have worried about religious minorities, who can
suffer disproportionately from laws that enact majoritarian mores.88 Smith, in effect would
allow discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate almost invariably from
relatively politically powerless minority religions and Smith virtually wiped out their judicial
recourse for exemption.91 Second, Smith leaves too much leeway for pervasive welfare-
state regulation to burden religion while satisfying neutrality. After all, laws not aimed at
religion can hinder observance just as effectively as those that target religion.92
Government impairment of religious liberty would most often be of the inadvertent kind as
in 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.93 Third, the
Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion.95
At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty
in defining and limiting the term "religion" in todays pluralistic society, and (2) the belief
that courts have no business determining the significance of an individuals religious
beliefs. For the Smith Court, these two concerns appear to lead to the conclusion that the
Free Exercise Clause must protect everything or it must protect virtually nothing. As a
result, the Court perceives its only viable options are to leave free exercise protection to
the political process or to allow a "system in which each conscience is a law unto itself." 96
The Courts characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable options, then
admittedly, the Court has a stronger argument. But the Free Exercise Clause cannot be
summarily dismissed as too difficult to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of "religion" must be protected.
Accordingly, the Constitution compels the Court to struggle with the contours of what
constitutes "religion." There is no constitutional opt-out provision for constitutional words
that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Courts two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires the
Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely
not religious individuals; they would undoubtedly prefer their religious beliefs to be probed
for sincerity and significance rather than acquiesce to the Courts approach of simply
refusing to grant any constitutional significance to their beliefs at all. If the Court is
concerned about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the lawmakers who
have sought to prevent the Court from dismantling the Free Exercise Clause through such
legislation as the [Religious Freedom Restoration Act of 1993], and in any case, the Court
should not be overly concerned about hurting legislatures feelings by requiring their laws
to conform to constitutional dictates. Perhaps the Court is concerned about putting such
burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a
burden no judge should be expected to fulfill.97
Parenthetically, Smiths characterization that the U.S. Court has "never held that an
individuals religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate"an assertion which Mr. Justice Carpio
adopted unequivocally in his dissenthas been sharply criticized even implicitly by its
supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by
opposing the arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision
made shocking use of precedent]those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the
exemption made in Yoder, by asserting that these were premised on two constitutional
rights combinedthe right of parents to direct the education of their children and the right
of free exercise of religion. Under the Courts opinion in Smith, the right of free exercise of
religion standing alone would not allow Amish parents to disregard the compulsory school
attendance law, and under the Courts opinion in Yoder, parents whose objection to the law
was not religious would also have to obey it. The fatal flaw in this argument, however, is
that if two constitutional claims will fail on its own, how would it prevail if combined?99 As
for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-compelled conduct that leads
to job loss is not a violation of criminal law. And yet, this is precisely why the rejection of
Sherbert was so damaging in its effect: the religious person was more likely to be entitled
to constitutional protection when forced to choose between religious conscience and going
to jail than when forced to choose between religious conscience and financial loss. 100

Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.101 So much was the uproar that a majority in Congress was
convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.102 The RFRA
was adopted to negate the Smith test and require strict scrutiny for free exercise claims.
Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion."103 The Act declares that its purpose is to restore the compelling
interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its
application in all cases where free exercise of religion is substantially burdened; and to
provide a claim of defense to a person whose religious exercise is substantially burdened
by government.104 The RFRA thus sought to overrule Smith and make strict scrutiny the
test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the Fourteenth
Amendment in enacting the law. The Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of
judicial respect for the constitutional decision-making by a coordinate branch of
government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement in the
Bill of Rights are not thereby banished from the political process. Just as society believes in
the negative protection accorded to the press by the First Amendment is likely to enact
laws that affirmatively foster the dissemination of the printed word, so also a society that
believes in the negative protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly
unanimous Congress. Contrary to the Courts characterization of the RFRA as a kind of
usurpation of the judicial power to say what the Constitution means, the law offered no
definition of Free Exercise, and on its face appeared to be a procedural measure
establishing a standard of proof and allocating the duty of meeting it. In effect, the Court
ruled that Congress had no power in the area of religion. And yet, Free Exercise exists in
the First Amendment as a negative on Congress. The power of Congress to act towards the
states in matters of religion arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing the power of
legislature to give accommodations, is in effect contrary to the benevolent neutrality or
accommodation approach. Moreover, if we consider the history of the incorporation of the
religion clauses in the U.S., the decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith. Smith is dangerous precedent because
it subordinates fundamental rights of religious belief and practice to all neutral, general
legislation. Sherbert recognized the need to protect religious exercise in light of the
massive increase in the size of government, the concerns within its reach, and the number
of laws administered by it. However, Smith abandons the protection of religious exercise at
a time when the scope and reach of government has never been greater. It has been
pointed out that Smith creates the legal framework for persecution: through general,
neutral laws, legislatures are now able to force conformity on religious minorities whose
practice irritate or frighten an intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby
emasculating the Free Exercise Clause. Smith left religious freedom for many in the hands
of the political process, exactly where it would be if the religion clauses did not exist in the
Bill of Rights. Like most protections found in the Bill of Rights, the religion clauses of the
First Amendment are most important to those who cannot prevail in the political process.
The Court in Smith ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because mainstream religions
generally have been successful in protecting their interests through the political process, it
is the non-mainstream religions that are adversely affected by Smith. In short, the U.S.
Supreme Court has made it clear to such religions that they should not look to the First
Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are
found to be constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those
which are discretionary or legislative, i.e., not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause; and (c) those which the religion
clauses prohibit.111
Mandatory accommodation results when the Court finds that accommodation is required
by the Free Exercise Clause, i.e, when the Court itself carves out an exemption. This
accommodation occurs when all three conditions of the compelling interest test are met,
i.e, a statute or government action has burdened claimants free exercise of religion, and
there is no doubt as to the sincerity of the religious belief; the state has failed to
demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great
and the advancement of public purposes is incomparable that only indifference or hostility
could explain a refusal to make exemptions. Thus, if the states objective could be served
as well or almost as well by granting an exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the exemption. The Yoder case is an
example where the Court held that the state must accommodate the religious beliefs of
the Amish who objected to enrolling their children in high school as required by law. The
Sherbert case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not required to,
accommodate religious interests. The U.S. Walz case illustrates this situation where the
U.S. Supreme Court upheld the constitutionality of tax exemption given by New York to
church properties, but did not rule that the state was required to provide tax exemptions.
The Court declared that "(t)he limits of permissible state accommodation to religion are by
no means co-extensive with the noninterference mandated by the Free Exercise
Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in public
schools and Marsh v. Chambers,115 allowing payment of legislative chaplains from public
funds. Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines
that the legislative accommodation runs afoul of the establishment or the free exercise
clause, it results to a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation interests. To say that there
are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims
for free exercise exemptions are valid.116 An example where accommodation was
prohibited is McCollum v. Board of Education,117 where the Court ruled against optional
religious instruction in the public school premises.118
Given that a free exercise claim could lead to three different results, the question now
remains as to how the Court should determine which action to take. In this regard, it is the
strict scrutiny-compelling state interest test which is most in line with the benevolent
neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is
that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one
dependent on the grace of legislature. Religious freedom is seen as a substantive right and
not merely a privilege against discriminatory legislation. With religion looked upon with
benevolence and not hostility, benevolent neutrality allows accommodation of religion
under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or
practice, free exercise disputes arise commonly when a law that is religiously neutral and
generally applicable on its face is argued to prevent or burden what someones religious
faith requires, or alternatively, requires someone to undertake an act that faith would
preclude. In essence, then, free exercise arguments contemplate religious exemptions from
otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendments mandate of preserving religious liberty to the
fullest extent possible in a pluralistic society.120 Underlying the compelling state interest
test is the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step process,
summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some important (or compelling) secular
objective and that it is the least restrictive means of achieving that objective. If the plaintiff
meets this burden and the government does not, the plaintiff is entitled to exemption from
the law or practice at issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimants religious denomination. Only beliefs rooted in
religion are protected by the Free Exercise Clause; secular beliefs, however sincere and
conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion clauses using
either the separationist approach, or the benevolent neutrality approach. The benevolent
neutrality approach has also further been split by the view that the First Amendment
requires accommodation, or that it only allows permissible legislative accommodations.
The current prevailing view as pronounced in Smith, however, is that that there are no
required accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines,
it is immediately clear that one cannot simply conclude that we have adoptedlock, stock
and barrelthe religion clauses as embodied in the First Amendment, and therefore, the
U.S. Courts interpretation of the same. Unlike in the U.S. where legislative exemptions of
religion had to be upheld by the U.S. Supreme Court as constituting permissive
accommodations, similar exemptions for religion are mandatory accommodations under
our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on
tax exemption of church property,123 salary of religious officers in government
institutions,124 and optional religious instruction.125 Our own preamble also invokes the
aid of a divine being.126 These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal without doubt that
the Filipino people, in adopting these constitutions, manifested their adherence to the
benevolent neutrality approach that requires accommodations in interpreting the religion
clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar
as it asserted that the 1935 Constitution incorporates the Walz ruling as this case was
decided subsequent to the 1935 Constitution is a misreading of the ponencia. What the
ponencia pointed out was that even as early as 1935, or more than three decades before
the U.S. Court could validate the exemption in Walz as a form or permissible
accommodation, we have already incorporated the same in our Constitution, as a
mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution.128 As stated in our Decision,
dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were
largely adopted from the First Amendment of the U.S. Constitution xxxx Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might
simply conclude that the Philippine Constitutions and jurisprudence also inherited the
disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when
a religion clause case comes before the Court, a separationist approach or 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. From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the enforcement of
this intent is the goal of construing the constitution.129 [citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of
the religion clauses to effectively deny accommodations on the sole basis that the law in
question is neutral and of general application. For even if it were true that "an unbroken
line of U.S. Supreme Court decisions" has never held that "an individuals religious beliefs
[do not] excuse him from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate," our own Constitutions have made significant changes to
accommodate and exempt religion. Philippine jurisprudence shows that the Court has
allowed exemptions from a law of general application, in effect, interpreting our religion
clauses to cover both mandatory and permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this
case, plaintiff was required by an ordinance to secure a mayors permit and a municipal
license as ordinarily required of those engaged in the business of general merchandise
under the citys ordinances. Plaintiff argued that this amounted to "religious censorship
and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of selling said
"merchandise" for profit, it also ruled that applying the ordinance to plaintiff and requiring
it to secure a license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs "as the power to
tax the exercise of a privilege is the power to control or suppress its enjoyment." The
decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such
right can only be justified like other restraints of freedom of expression on the grounds that
there is a clear and present danger of any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division
Superintendent of Schools.132 The case involved several Jehovahs Witnesses who were
expelled from school for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge, in violation of the Administrative Code of 1987. In resolving the religious
freedom issue, a unanimous Court overturned an earlier ruling denying such
exemption,133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German
v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety, public morals, public
health or any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners from the
schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general
application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of
Victoriano v. Elizalde Rope Workers Union135 is an example of the application of Mr. Justice
Carpios theory of permissive accommodation, where religious exemption is granted by a
legislative act. In Victoriano, the constitutionality of Republic Act No. 3350 was questioned.
The said R.A. exempt employees from the application and coverage of a closed shop
agreementmandated in another lawbased on religious objections. A unanimous Court
upheld the constitutionality of the law, holding that "government is not precluded from
pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." Interestingly, the secular purpose of the challenged law
which the Court upheld was the advancement of "the constitutional right to the free
exercise of religion."136
Having established that benevolent neutrality-accommodation is the framework by which
free exercise cases must be decided, the next question then turned to the test that should
be used in ascertaining the limits of the exercise of religious freedom. In our Decision
dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases involving
purely conduct based on religious belief, as in the case at bar, the compelling state interest
test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with
the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the
"clear and present danger" test but did not employ it. Nevertheless, this test continued to
be cited in subsequent cases on religious liberty. The Gerona case then pronounced that
the test of permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate and grave
danger" test as well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of the law.
The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the "clear and present danger" test in the maiden case of American
Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious
speech as this test is often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority cited
by German has been overruled by Ebralinag which employed the "grave and immediate
danger" test. Victoriano was the only case that employed the "compelling state interest"
test, but as explained previously, the use of the test was inappropriate to the facts of the
case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia
ni Cristo where the "clear and present danger" and "grave and immediate danger" tests
were appropriate as speech has easily discernible or immediate effects. The Gerona and
German doctrine, aside from having been overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct
has different effects on the states interests: some effects may be immediate and short-
term while others delayed and far-reaching. A test that would protect the interests of the
state in preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon
an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a government." As
held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious liberty. The test requires the
state to carry a heavy burden, a compelling one, for to do otherwise would allow the state
to batter religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the states interest and religious liberty, reasonableness shall
be the guide. The "compelling state interest" serves the purpose of revering religious
liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the
applicability of the benevolent neutrality framework and compelling state interest test,
states that "[i]t is true that a test needs to be applied by the Court in determining the
validity of a free exercise claim of exemption as made here by Escritor." This assertion is
inconsistent with the position negating the benevolent neutrality or accommodation
approach. If it were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test to determine
the validity of a free exercise claim, as any and all claims for religious exemptions from a
law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing
free exercise exemption claims because it forces the Court to confront how far it can validly
set the limits of religious liberty under the Free Exercise Clause, rather than presenting the
separation theory and accommodation theory as opposite concepts, and then rejecting
relevant and instructive American jurisprudence (such as the Smith case) just because it
does not espouse the theory selected." He then asserts that the Smith doctrine cannot be
dismissed because it does not really espouse the strict neutrality approach, but more of
permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith is
that only legislative accommodations are allowed under the Free Exercise Clause, it cannot
be used in determining a claim of religion exemption directly anchored on the Free Exercise
Clause. Thus, even assuming that the Smith doctrine actually espouses the theory of
accommodation or benevolent neutrality, the accommodation is limited to the permissive,
or legislative exemptions. It, therefore, cannot be used as a test in determining the claims
of religious exemptions directly under the Free Exercise Clause because Smith does not
recognize such exemption. Moreover, Mr. Justice Carpios advocacy of the Smith doctrine
would effectively render the Free Exercise protectiona fundamental right under our
Constitutionnugatory because he would deny its status as an independent source of
right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We
explained this process in detail, by showing the questions which must be answered in each
step, viz:
First, "[H]as the statute or government action created a burden on the free exercise of
religion?" The courts often look into the sincerity of the religious belief, but without
inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is
ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation.
xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty?" In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do
more than assert the objectives at risk if exemption is given; it must precisely show how
and to what extent those objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than necessary
to achieve the legitimate goal of the state?" The analysis requires the state to show that
the means in which it is achieving its legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three situations
of accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that the
State may, but is not required to, accommodate religious interests, permissive
accommodation results. Finally, if the Court finds that that establishment concerns prevail
over potential accommodation interests, then it must rule that the accommodation is
prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He posits
the view that the law should prevail in the absence of a legislative exemption, and the
Court cannot make the accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases
of American Bible Society, Ebralinag, and Victoriano demonstrate that our application of
the doctrine of benevolent neutrality-accommodation covers not only the grant of
permissive, or legislative accommodations, but also mandatory accommodations. Thus, an
exemption from a law of general application is possible, even if anchored directly on an
invocation of the Free Exercise Clause alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court
granted an accommodation/exemption to a religious act from the application of general
penal laws, permissive accommodation based on religious freedom has been granted with
respect to one of the crimes penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to
Mormons an exemption from a general federal law criminalizing polygamy, even if it was
proven that the practice constituted a religious duty under their faith.140 In
contradistinction, Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to
the crime of bigamy "shall not apply to a person marriedunder Muslim law." Thus, by
legislative action, accommodation is granted of a Muslim practice which would otherwise
violate a valid and general criminal law. Mr. Justice Carpio recognized this accommodation
when, in his dissent in our Decision dated August 4, 2003 and citing Sulu Islamic
Association of Masjid Lambayong v. Malik,141 he stated that a Muslim Judge "is not
criminally liable for bigamy because Sharia law allows a Muslim to have more than one
wife."
From the foregoing, the weakness of Mr. Justice Carpios "permissive-accommodation only"
advocacy in this jurisdiction becomes manifest. Having anchored his argument on the
Smith doctrine that "the guaranty of religious liberty as embodied in the Free Exercise
Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws," his theory is infirmed by the
showing that the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the Philippine
Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is
the antithesis to the notion that religion clauses, like the other fundamental liberties found
in the Bill or Rights, is a preferred right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in
Sherbert is not applicable when the law in question is a generally applicable criminal law.
Stated differently, even if Mr. Justice Carpio conceded that there is no question that in the
Philippine context, accommodations are made, the question remains as to how far the
exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommodation is uncertain, for Philippine law and jurisprudence
have, in fact, allowed legislative accommodation. Second, the power of the Courts to grant
exemptions in general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided, not just once,
but twice by the Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws
of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the
Philippine religion clauses, the benevolent neutrality-accommodation approach in
Philippine jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of
mandatory accommodations, was to address the "inadvertent burdensome effect" that an
otherwise facially neutral law would have on religious exercise. Just because the law is
criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise
Clause. As stated by Justice OConnor in her concurring opinion in Smith, "[t]here is nothing
talismanic about neutral laws of general applicability or general criminal prohibitions, for
laws neutral towards religion can coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as laws aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is the recourse of
minority religions who are likewise protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of minority religions from
the inevitable effects of majoritarianism, which include ignorance and indifference and
overt hostility to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter because some
laws are so necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could explain a refusal
to make exemptions. Because of plural traditions, legislators and executive officials are
frequently willing to make such exemptions when the need is brought to their attention,
but this may not always be the case when the religious practice is either unknown at the
time of enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept,
nor will it be applied for the first time, as an exemption of such nature, albeit by legislative
act, has already been granted to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental
rights like the right to life, liberty or property, the Religion Clauses are stated in absolute
terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful
order." Only the right to free speech is comparable in its absolute grant. Given the
unequivocal and unqualified grant couched in the language, the Court cannot simply
dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise that
the law in question is a general criminal law. 143 If the burden is great and the sincerity of
the religious belief is not in question, adherence to the benevolent neutrality-
accommodation approach require that the Court make an individual determination and not
dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-
accommodation approach does not mean that the Court ought to grant exemptions every
time a free exercise claim comes before it. This is an erroneous reading of the framework
which the dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality
is the lens with which the Court ought to view religion clause cases, the interest of the
state should also be afforded utmost protection. This is precisely the purpose of the test
to draw the line between mandatory, permissible and forbidden religious exercise. Thus,
under the framework, the Court cannot simply dismiss a claim under the Free Exercise
Clause because the conduct in question offends a law or the orthodox view, as proposed by
Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of the
Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed. We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as
discussed above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching pad from which
the Court should take off in interpreting religion clause cases. The ideal towards which this
approach is directed is the protection of religious liberty "not only for a minority, however
small- not only for a majority, however large but for each of us" to the greatest extent
possible within flexible constitutional limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what
remained to be resolved, upon which remand was necessary, pertained to the final task of
subjecting this case to the careful application of the compelling state interest test, i.e.,
determining whether respondent is entitled to exemption, an issue which is essentially
factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the
Hearing Officers report,146 along with the evidence submitted by the OSG, this case is
once again with us, to resolve the penultimate question of whether respondent should be
found guilty of the administrative charge of "disgraceful and immoral conduct." It is at this
point then that we examine the report and documents submitted by the hearing officer of
this case, and apply the three-step process of the compelling state interest test based on
the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the
sincerity and centrality of respondents claimed religious belief and practice are beyond
serious doubt.147 Thus, having previously established the preliminary conditions required
by the compelling state interest test, i.e., that a law or government practice inhibits the
free exercise of respondents religious beliefs, and there being no doubt as to the sincerity
and centrality of her faith to claim the exemption based on the free exercise clause, the
burden shifted to the government to demonstrate that the law or practice justifies a
compelling secular objective and that it is the least restrictive means of achieving that
objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest
abuses, endangering paramount interests" which could limit or override respondents
fundamental right to religious freedom. Neither did the government exert any effort to
show that the means it seeks to achieve its legitimate state objective is the least intrusive
means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking The September 30, 2003 Letter to the OSG of Bro.
Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract Society of the
Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondents claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking The duly notarized certification dated September 30,
2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed
religious belief and practice; and (2) to prove that the Declaration of Pledging Faithfulness,
being a purely internal arrangement within the congregation of the Jehovahs Witnesses,
cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling
interest to override respondents claimed religious belief and practice, in order to protect
marriage and the family as basic social institutions. The Solicitor General, quoting the
Constitution148 and the Family Code,149 argues that marriage and the family are so
crucial to the stability and peace of the nation that the conjugal arrangement embraced in
the Declaration of Pledging Faithfulness should not be recognized or given effect, as "it is
utterly destructive of the avowed institutions of marriage and the family for it reduces to a
mockery these legally exalted and socially significant institutions which in their purity
demand respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in
so far as he asserts that the State has a compelling interest in the preservation of marriage
and the family as basic social institutions, which is ultimately the public policy underlying
the criminal sanctions against concubinage and bigamy. He also argues that in dismissing
the administrative complaint against respondent, "the majority opinion effectively
condones and accords a semblance of legitimacy to her patently unlawful cohabitation..."
and "facilitates the circumvention of the Revised Penal Code." According to Mr. Justice
Carpio, by choosing to turn a blind eye to respondents criminal conduct, the majority is in
fact recognizing a practice, custom or agreement that subverts marriage. He argues in a
similar fashion as regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of justice.
Indeed, the provisions by which respondents relationship is said to have impinged, e.g.,
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles 334
and 349 of the Revised Penal Code, and even the provisions on marriage and family in the
Civil Code and Family Code, all clearly demonstrate the States need to protect these
secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the
fundamental rights in our Constitution. It is a fundamental right that enjoys a preferred
position in the hierarchy of rights "the most inalienable and sacred of human rights," in
the words of Jefferson. Hence, it is not enough to contend that the states interest is
important, because our Constitution itself holds the right to religious freedom sacred. The
State must articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right to religious freedom. To rule otherwise
would be to emasculate the Free Exercise Clause as a source of right by itself.
Thus, it is not the States broad interest in "protecting the institutions of marriage and the
family," or even "in the sound administration of justice" that must be weighed against
respondents claim, but the States narrow interest in refusing to make an exception for the
cohabitation which respondents faith finds moral. In other words, the government must do
more than assert the objectives at risk if exemption is given; it must precisely show how
and to what extent those objectives will be undermined if exemptions are granted.151
This, the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest test, the States
interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free
exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly assert
that unbending application of a criminal prohibition is essential to fulfill any compelling
interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the
State has not evinced any concrete interest in enforcing the concubinage or bigamy
charges against respondent or her partner. The State has never sought to prosecute
respondent nor her partner. The States asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the words of
Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4,
2003, to deny the exemption would effectively break up "an otherwise ideal union of two
individuals who have managed to stay together as husband and wife [approximately
twenty-five years]" and have the effect of defeating the very substance of marriage and
the family.
The Solicitor General also argued against respondents religious freedom on the basis of
morality, i.e., that "the conjugal arrangement of respondent and her live-in partner should
not be condoned because adulterous relationships are constantly frowned upon by
society";152 and "that State laws on marriage, which are moral in nature, take clear
precedence over the religious beliefs and practices of any church, religious sect or
denomination on marriage. Verily, religious beliefs and practices should not be permitted
to override laws relating to public policy such as those of marriage."153
The above arguments are mere reiterations of the arguments raised by Mme. Justice
Ynares-Santiago in her dissenting opinion to our Decision dated August 4, 2003, which she
offers again in toto. These arguments have already been addressed in our decision dated
August 4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-Santiagos
dissenting opinion dwelt more on the standards of morality, without categorically holding
that religious freedom is not in issue.155 We, therefore, went into a discussion on morality,
in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the
morality it sanctions.156 Thus, when the law speaks of "immorality" in the Civil Service
Law or "immoral" in the Code of Professional Responsibility for lawyers,157 or "public
morals" in the Revised Penal Code,158 or "morals" in the New Civil Code,159 or "moral
character" in the Constitution,160 the distinction between public and secular morality on
the one hand, and religious morality, on the other, should be kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend
compelling state interests;162
(c) The jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm
where it has authority.163
(d) Having distinguished between public and secular morality and religious morality, the
more difficult task is determining which immoral acts under this public and secular morality
fall under the phrase "disgraceful and immoral conduct" for which a government employee
may be held administratively liable.164 Only one conduct is in question before this Court,
i.e., the conjugal arrangement of a government employee whose partner is legally married
to another which Philippine law and jurisprudence consider both immoral and illegal.165
(e) While there is no dispute that under settled jurisprudence, respondents conduct
constitutes "disgraceful and immoral conduct," the case at bar involves the defense of
religious freedom, therefore none of the cases cited by Mme. Justice Ynares-Santiago
apply.166 There is no jurisprudence in Philippine jurisdiction holding that the defense of
religious freedom of a member of the Jehovahs Witnesses under the same circumstances
as respondent will not prevail over the laws on adultery, concubinage or some other law.
We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by
law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
respondent with conduct prejudicial to the best interest of the service, and we reiterate
that the dissent offends due process as respondent was not given an opportunity to defend
herself against the charge of "conduct prejudicial to the best interest of the service."
Indeed, there is no evidence of the alleged prejudice to the best interest of the service.168
Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court
grants respondent exemption from the laws which respondent Escritor has been charged to
have violated, the exemption would not apply to Catholics who have secured church
annulment of their marriage even without a final annulment from a civil court. First, unlike
Jehovahs Witnesses, the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovahs Witnesses have standards and
procedures which must be followed before cohabitation without marriage is given the
blessing of the congregation. This includes an investigative process whereby the elders of
the congregation verify the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal impediments for the
couple are lifted, the validity of the Declaration ceases, and the congregation requires that
the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless,
insofar as he raises the issue of equality among religions, we look to the words of the
Religion Clauses, which clearly single out religion for both a benefit and a burden: "No law
shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof" On its face, the language grants a unique advantage to religious conduct,
protecting it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a provision which puts
religion on an equal footing with other bases for action seems to be a curious reading.
There are no "free exercise" of "establishment" provisions for science, sports, philosophy,
or family relations. The language itself thus seems to answer whether we have a paradigm
of equality or liberty; the language of the Clause is clearly in the form of a grant of liberty.
169
In this case, the governments conduct may appear innocent and nondiscriminatory but in
effect, it is oppressive to the minority. In the interpretation of a document, such as the Bill
of Rights, designed to protect the minority from the majority, the question of which
perspective is appropriate would seem easy to answer. Moreover, the text, history,
structure and values implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equalitya reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability to
use the government (law) to assist their own religion or burden othersmakes the most
sense in the interpretation of the Bill of Rights, a document designed to protect minorities
and individuals from mobocracy in a democracy (the majority or a coalition of minorities).
170
As previously discussed, our Constitution adheres to the benevolent neutrality approach
that gives room for accommodation of religious exercises as required by the Free Exercise
Clause.171 Thus, in arguing that respondent should be held administratively liable as the
arrangement she had was "illegal per se because, by universally recognized standards, it is
inherently or by its very nature bad, improper, immoral and contrary to good
conscience,"172 the Solicitor General failed to appreciate that benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state interest, it has to
further demonstrate that the state has used the least intrusive means possible so that the
free exercise is not infringed any more than necessary to achieve the legitimate goal of the
state, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties.174 Again, the Solicitor General utterly failed to prove this
element of the test. Other than the two documents offered as cited above which
established the sincerity of respondents religious belief and the fact that the agreement
was an internal arrangement within respondents congregation, no iota of evidence was
offered. In fact, the records are bereft of even a feeble attempt to procure any such
evidence to show that the means the state adopted in pursuing this compelling interest is
the least restrictive to respondents religious freedom.
Thus, we find that in this particular case and under these distinct circumstances,
respondent Escritors conjugal arrangement cannot be penalized as she has made out a
case for exemption from the law based on her fundamental right to freedom of religion.
The Court recognizes that state interests must be upheld in order that freedoms - including
religious freedom - may be enjoyed. In the area of religious exercise as a preferred
freedom, however, man stands accountable to an authority higher than the state, and so
the state interest sought to be upheld must be so compelling that its violation will erode
the very fabric of the state that will also protect the freedom. In the absence of a showing
that such state interest exists, man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
REYNATO S. PUNO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Estrada vs. Escritor , 492 SCRA 1 ; 22 JUN 2006
FACTS: Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. She has been
living with Quilapio, a man who is not her husband, for more than twenty five years and
had a son with him as well. Respondents husband died a year before she entered into the
judiciary while Quilapio is still legally married to another woman.
Complainant Estrada requested the Judge of said RTC to investigate respondent. According
to complainant, respondent should not be allowed to remain employed therein for it will
appear as if the court allows such act.
Respondent claims that their conjugal arrangement is permitted by her religionthe
Jehovahs Witnesses and the Watch Tower and the Bible Trace Society. They allegedly have
a Declaration of Pledging Faithfulness under the approval of their congregation. Such a
declaration is effective when legal impediments render it impossible for a couple to
legalize their union.
ISSUE: Whether or Not the State could penalize respondent for such conjugal arrangement.
RULING: No. The State could not penalize respondent for she is exercising her right to
freedom of religion. The free exercise of religion is specifically articulated as one of the
fundamental rights in our Constitution. As Jefferson put it, it is the most inalienable and
sacred of human rights. The States interest in enforcing its prohibition cannot be merely
abstract or symbolic in order to be sufficiently compelling to outweigh a free exercise
claim. In the case at bar, the State has not evinced any concrete interest in enforcing the
concubinage or bigamy charges against respondent or her partner. Thus the States
interest only amounts to the symbolic preservation of an unenforced prohibition.
Furthermore, a distinction between public and secular morality and religious morality
should be kept in mind. The jurisdiction of the Court extends only to public and secular
morality.
The Court further states that our Constitution adheres the benevolent neutrality approach
that gives room for accommodation of religious exercises as required by the Free Exercise
Clause. This benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests. Assuming arguendo that
the OSG has proved a compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the state. Thus the conjugal
arrangement cannot be penalized for it constitutes an exemption to the law based on her
right to freedom of religion.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due
course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17,
2004. The decision, however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558.
Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by
other aspirants for national elective positions, denied the same under the aegis of
Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner
and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign
and/or are not nominated by a political party or are not supported by a registered political
party with a national constituency. Commissioner Sadain maintained his vote for petitioner.
By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were
allegedly rendered in violation of his right to "equal access to opportunities for public
service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford
to wage a nationwide campaign and/or are nominated by political parties. In so doing,
petitioner argues that the COMELEC indirectly amended the constitutional provisions on
the electoral process and limited the power of the sovereign people to choose their
leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified
among all the presidential candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a national campaign
since he has numerous national organizations under his leadership, he also has the
capacity to wage an international campaign since he has practiced law in other countries,
and he has a platform of government. Petitioner likewise attacks the validity of the form for
the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form
does not provide clear and reasonable guidelines for determining the qualifications of
candidates since it does not ask for the candidates bio-data and his program of
government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioners invocation of the constitutional provision ensuring "equal access
to opportunities for public office" is the claim that there is a constitutional right to run for
or hold public office and, particularly in his case, to seek the presidency. There is none.
What is recognized is merely a privilege subject to limitations imposed by law. Section 26,
Article II of the Constitution neither bestows such a right nor elevates the privilege to the
level of an enforceable right. There is nothing in the plain language of the provision which
suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially enforceable constitutional right but
merely specifies a guideline for legislative or executive action.3 The disregard of the
provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article II had
read, "The State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth
an amendment that changed the word "broaden" to the phrase "ensure equal access," and
the substitution of the word "office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to make
the government the number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures
that would accommodate as many people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear
State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written,
the myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and "public service"
are susceptible to countless interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to inflict on the people an operative but
amorphous foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or cancel a
Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of
the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003.
Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II
of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical difficulties
should, of course, never exempt the State from the conduct of a mandated electoral
exercise. At the same time, remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization and its
candidates on the ballot the interest, if no other, in avoiding confusion, deception and
even frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations when it promulgated
Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law
Department dated 11 January 2004. As observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot
wage a decent campaign enough to project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling place,13
watchers in the board of canvassers,14 or even the receipt of electoral contributions.15
Moreover, there are election rules and regulations the formulations of which are dependent
on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even
more galling. The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to run a
viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body
would be bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract from the larger purpose.
The COMELEC is mandated by the Constitution with the administration of elections16 and
endowed with considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees
that only bona fide candidates for public office shall be free from any form of harassment
and discrimination.18 The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election
Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in
the case of the petitioner cannot be tested and reviewed by this Court on the basis of what
is now before it. The assailed resolutions of the COMELEC do not direct the Court to the
evidence which it considered in determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether the COMELEC committed
grave abuse of discretion in disqualifying petitioner, since such a review would necessarily
take into account the matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not
being a trier of facts, can not properly pass upon the reproductions as evidence at this
level. Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and
factual. The basis of the factual determination is not before this Court. Thus, the remand of
this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in
the government. It deserves not a cursory treatment but a hearing which conforms to the
requirements of due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice
it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other
election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded
to the COMELEC for the reception of further evidence, to determine the question on
whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.
SO ORDERED.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
CASE DIGEST
Rev. Ely Velez Pamatong Vs. Commission on Elections
G.R. No. 161872, April 13, 2004
FACTS:
Petitioner Pamatong filed his Certificate of Candidacy (COC) for President. Respondent
COMELEC declared petitioner and 35 others as nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported by
a registered political party with a national constituency.
Pamatong filed a Petition For Writ of Certiorari with the Supreme Court claiming that the
COMELEC violated his right to equal access to opportunities for public service under
Section 26, Article II of the 1987 Constitution, by limiting the number of qualified
candidates only to those who can afford to wage a nationwide campaign and/or are
nominated by political parties. The COMELEC supposedly erred in disqualifying him since
he is the most qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is capable of
waging a national campaign since he has numerous national organizations under his
leadership, he also has the capacity to wage an international campaign since he has
practiced law in other countries, and he has a platform of government.
ISSUE:
Is there a constitutional right to run for or hold public office?
RULING:
No. What is recognized in Section 26, Article II of the Constitution is merely a privilege
subject to limitations imposed by law. It neither bestows such a right nor elevates the
privilege to the level of an enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation of the sort.
The equal access provision is a subsumed part of Article II of the Constitution, entitled
Declaration of Principles and State Policies. The provisions under the Article are generally
considered not self-executing, and there is no plausible reason for according a different
treatment to the equal access provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially enforceable constitutional right but
merely specifies a guideline for legislative or executive action. The disregard of the
provision does not give rise to any cause of action before the courts.
Obviously, the provision is not intended to compel the State to enact positive measures
that would accommodate as many people as possible into public office. Moreover, the
provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written,
the myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended. Words and phrases such as equal access, opportunities, and public service least ten years immediately preceding such election.
are susceptible to countless interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to inflict on the people an operative but
amorphous foundation from which innately unenforceable rights may be sourced.
The privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are
found in the provisions of the Omnibus Election Code on Nuisance Candidates. As long as
the limitations apply to everybody equally without discrimination, however, the equal
access clause is not violated. Equality is not sacrificed as long as the burdens engendered
by the limitations are meant to be borne by any one who is minded to file a certificate of
candidacy. In the case at bar, there is no showing that any person is exempt from the
limitations or the burdens which they create.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. The organization of an
election with bona fide candidates standing is onerous enough. To add into the mix
candidates with no serious intentions or capabilities to run a viable campaign would
actually impair the electoral process. This is not to mention the candidacies which are
palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral process, most probably posed at
the instance of these nuisance candidates. It would be a senseless sacrifice on the part of
the State.
The question of whether a candidate is a nuisance candidate or not is both legal and
factual. The basis of the factual determination is not before this Court. Thus, the remand of
this case for the reception of further evidence is in order. The SC remanded to the
COMELEC for the reception of further evidence, to determine the question on whether
petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69
of the Omnibus Election Code.
Obiter Dictum: One of Pamatongs contentions was that he was an international lawyer and
is thus more qualified compared to the likes of Erap, who was only a high school dropout.
Under the Constitution (Article VII, Section 2), the only requirements are the following: (1)
natural-born citizen of the Philippines; (2) registered voter; (3) able to read and write; (4) at
least forty years of age on the day of the election; and (5) resident of the Philippines for at
At any rate, Pamatong was eventually declared a nuisance candidate and was disqualified.
epublic of the Philippines addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the
SUPREME COURT private respondents' stalls, sari-sari stores, and carinderia along North EDSA. The
Manila complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an
Order, directing the petitioners "to desist from demolishing the stalls and shanties at North
EN BANC EDSA pending resolution of the vendors/squatters' complaint before the Commission" and
ordering said petitioners to appear before the CHR. 4

On the basis of the sworn statements submitted by the private respondents on 31 July
G.R. No. 100150 January 5, 1994 1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the
petitioners carried out the demolition of private respondents' stalls, sari-sari stores and
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of
OCAMPO, petitioners, financial assistance of not more than P200,000.00 in favor of the private respondents to
vs. purchase light housing materials and food under the Commission's supervision and again
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, directed the petitioners to "desist from further demolition, with the warning that violation
respondents. of said order would lead to a citation for contempt and arrest." 6

The City Attorney for petitioners. A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The
motion also averred, among other things, that:
The Solicitor General for public respondent.
1. this case came about due to the alleged violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;
VITUG, J.:
xxx xxx xxx
The extent of the authority and power of the Commission on Human Rights ("CHR") is
3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to
again placed into focus in this petition for prohibition, with prayer for a restraining order
therein refers to moratorium in the demolition of the structures of poor dwellers;
and preliminary injunction. The petitioners ask us to prohibit public respondent CHR from
further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs.
4. that the complainants in this case (were) not poor dwellers but independent
Quimpo, et al."
business entrepreneurs even this Honorable Office admitted in its resolution of 1 August
1990 that the complainants are indeed, vendors;
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City
5. that the complainants (were) occupying government land, particularly the sidewalk
Integrated Hawkers Management Council under the Office of the City Mayor, was sent to,
of EDSA corner North Avenue, Quezon City; . . . and
and received by, the private respondents (being the officers and members of the North
EDSA Vendors Association, Incorporated). In said notice, the respondents were given a
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned
authority whether or not a certain business establishment (should) be allowed to operate
premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private
within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon
respondents were informed by petitioner Quimpo that their stalls should be removed to
grounds clearly specified by law and ordinance. 8
give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against
the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be
During the 12 September 1990 hearing, the petitioners moved for postponement, arguing
that the motion to dismiss set for 21 September 1990 had yet to be resolved. The
petitioners likewise manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners,
stating that the Commission's authority should be understood as being confined only to the
investigation of violations of civil and political rights, and that "the rights allegedly violated
in this case (were) not civil and political rights, (but) their privilege to engage in business."
9 Whether or not the public respondent has jurisdiction:
On 21 September 1990, the motion to dismiss was heard and submitted for resolution,
along with the contempt charge that had meantime been filed by the private respondents,
albeit vigorously objected to by petitioners (on the ground that the motion to dismiss was
still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for
carrying out the demolition of the stalls, sari-sari stores and carinderia despite the "order
to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and
supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction
over the complaint filed by the squatters-vendors who complained of the gross violations
of their human and constitutional rights. The motion to dismiss should be and is hereby
DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to create
only a paper tiger limited only to investigating civil and political rights, but it (should) be
(considered) a quasi-judicial body with the power to provide appropriate legal measures for
the protection of human rights of all persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and to
dignity. All these brazenly and violently ignored and trampled upon by respondents with
little regard at the same time for the basic rights of women and children, and their health,
safety and welfare. Their actions have psychologically scarred and traumatized the
children, who were witness and exposed to such a violent demonstration of Man's
inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we also
issued a temporary restraining order, directing the CHR to "CEASE and DESIST from further
hearing CHR No. 90-1580." 17
The petitioners pose the following:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and authority
given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by
the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing
his comment for public respondent CHR. The latter thus filed its own comment, 18 through
Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to dispense with
the comment of private respondent Roque Fermo, who had since failed to comply with the
resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive
Order No. 163, 20 issued on 5 May 1987, in the exercise of her legislative power at the
time. It succeeded, but so superseded as well, the Presidential Committee on Human
Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution,
thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to enhance
respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that
the intention of the members of the Constitutional Commission is to make CHR a quasi-
judicial body. 23 This view, however, has not heretofore been shared by this Court. In
Cario v. Commission on Human Rights, 24 the Court, through then Associate Justice, now
Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated
powers and functions that bears any resemblance to adjudication or adjudgment," but that
resemblance can in no way be synonymous to the adjudicatory power itself. The Court
explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate much less take over the
functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is
that it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel of
this controversy and, its is, to determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any
attempt to define it, albeit not a few have tried, could at best be described as inconclusive.
Let us observe. In a symposium on human rights in the Philippines, sponsored by the
University of the Philippines in 1977, one of the questions that has been propounded is
"(w)hat do you understand by "human rights?" The participants, representing different
sectors of the society, have given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They are
the same in all parts of the world, whether the Philippines or England, Kenya or the Soviet
Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property; freedom of
speech, of the press, of religion, academic freedom, and the rights of the accused to due
process of law; political rights, such as the right to elect public officials, to be elected to
public office, and to form political associations and engage in politics; and social rights,
such as the right to an education, employment, and social services. 25
Human rights are the entitlement that inhere in the individual person from the sheer fact of
his humanity. . . . Because they are inherent, human rights are not granted by the State
but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural rights defined in
the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They are part of
his natural birth, right, innate and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International Covenant
on Civil and Political Rights, suggests that the scope of human rights can be understood to
include those that relate to an individual's social, economic, cultural, political and civil
relations. It thus seems to closely identify the term to the universally accepted traits and
attributes of an individual, along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and in
creating an independent commission to safeguard these rights? It may of value to look
back at the country's experience under the martial law regime which may have, in fact,
impelled the inclusions of those provisions in our fundamental law. Many voices have been
heard. Among those voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil
liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines," 29
observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of
the human rights expressed in the International Covenant, these rights became
unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action
then became the rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods, sometimes for years, without
charges, until ordered released by the Commander-in-Chief or this representative. The
right to petition for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to censorship and
short term licensing. Martial law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure, except members of the
Supreme Court. They were required to submit letters of resignation and were dismissed
upon the acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we can see the
following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its impact
and the precise nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission can be
most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are very
broad. The Article on the Bill of Rights covers civil and political rights. Every single right of
an individual involves his civil right or his political right. So, where do we draw the line?
MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of Human
Rights which addresses a number of articles on the right to life, the right against torture,
the right to fair and public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal instruments as
constituting civil and political rights, and these are precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined in the
Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political
Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and
there are other violations of rights of citizens which can be addressed to the proper courts
and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore,
in doing that the commission will be authorized to take under its wings cases which
perhaps heretofore or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the international
standards governing the behavior of governments regarding the particular political and
civil rights of citizens, especially of political detainees or prisoners. This particular aspect
we have experienced during martial law which we would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really
trying to say is, perhaps, at the proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human rights. Those are the rights
that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution.
They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of
Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I would like to
state that in the past regime, everytime we invoke the violation of human rights, the
Marcos regime came out with the defense that, as a matter of fact, they had defended the
rights of people to decent living, food, decent housing and a life consistent with human
dignity.
So, I think we should really limit the definition of human rights to political rights. Is that the
sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by the
previous speaker.
There are actually six areas where this Commission on Human Rights could act effectively:
1) protection of rights of political detainees; 2) treatment of prisoners and the prevention
of tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings and
hamletting; and 6) other crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we should, in
order to make the proposed Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the concept and jurisdictional area
of the term "human rights". I was actually disturbed this morning when the reference was
made without qualification to the rights embodied in the universal Declaration of Human
Rights, although later on, this was qualified to refer to civil and political rights contained
therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of 1948, mentioned or linked the concept of human
right with other human rights specified in other convention which I do not remember. Am I
correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on Civil and
Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal
Declaration of Human Rights here, I do not have a copy of the other covenant mentioned.
It is quite possible that there are rights specified in that other convention which may not be
specified here. I was wondering whether it would be wise to link our concept of human
rights to general terms like "convention," rather than specify the rights contained in the
convention.
As far as the Universal Declaration of Human Rights is concerned, the Committee, before
the period of amendments, could specify to us which of these articles in the Declaration
will fall within the concept of civil and political rights, not for the purpose of including these
in the proposed constitutional article, but to give the sense of the Commission as to what
human rights would be included, without prejudice to expansion later on, if the need
arises. For example, there was no definite reply to the question of Commissioner Regalado
as to whether the right to marry would be considered a civil or a social right. It is not a civil
right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights
that we felt must be envisioned initially by this provision freedom from political
detention and arrest prevention of torture, right to fair and public trials, as well as crimes
involving disappearance, salvagings, hamlettings and collective violations. So, it is limited
to politically related crimes precisely to protect the civil and political rights of a specific
group of individuals, and therefore, we are not opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking
his concept or the concept of the Committee on Human Rights with the so-called civil or
political rights as contained in the Universal Declaration of Human Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was
referring to an international instrument.

MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we understand
it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil
and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and Civil
and Political Rights and the International Covenant on Economic, Social and Cultural
Rights. The second covenant contains all the different rights-the rights of labor to organize,
the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those
that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot
stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few lawyers will
accept clients who do not pay. And so, they are the ones more abused and oppressed.
Another reason is, the cases involved are very delicate torture, salvaging, picking up
without any warrant of arrest, massacre and the persons who are allegedly guilty are
people in power like politicians, men in the military and big shots. Therefore, this Human
Rights Commission must be independent.
I would like very much to emphasize how much we need this commission, especially for
the little Filipino, the little individual who needs this kind of help and cannot get it. And I
think we should concentrate only on civil and political violations because if we open this to
land, housing and health, we will have no place to go again and we will not receive any
response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a
provision empowering the Commission on Human Rights to "investigate, on its own or on
complaint by any party, all forms of human rights violations involving civil and political
rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to
all its inhabitants, and are not connected with the organization or administration of the
government. They include the rights of property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also refer, in its
general sense, to rights capable of being enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate, directly or
indirectly, in the establishment or administration of government, the right of suffrage, the
right to hold public office, the right of petition and, in general, the rights appurtenant to
citizenship vis-a-vis the management of government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily
apparent that the delegates envisioned a Commission on Human Rights that would focus
its attention to the more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases of
disappearances, (5) salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to have any preclusive
effect, more than just expressing a statement of priority, it is, nonetheless, significant for
the tone it has set. In any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of investigatorial
jurisdiction. They have thus seen it fit to resolve, instead, that "Congress may provide for
other cases of violations of human rights that should fall within the authority of the
Commission, taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished are
the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a "People's Park". More than
that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial
notice of, is a busy national highway. The consequent danger to life and limb is not thus to
be likewise simply ignored. It is indeed paradoxical that a right which is claimed to have
been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant.
Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are not prepared to conclude that the order
for the demolition of the stalls, sari-sari stores and carinderia of the private respondents
can fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court." Accordingly, the CHR acted within its authority in
providing in its revised rules, its power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court." That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor summons,
and the like, in pursuing its investigative work. The "order to desist" (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does not possess. In Export
Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking
through Madame Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or need
protection" may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention, the Constitution would
have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is
never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from proper courts on behalf of the victims of human rights violations.
Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme
Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights and interests of a
party thereto, and for no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its findings
and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of
financial aid to the vendors affected by the demolition is not an appropriate issue in the
instant petition. Not only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the petitioners has
become moot and academic since the case before it (CHR Case No. 90-1580) has already
been fully heard, and that the matter is merely awaiting final resolution. It is true that
prohibition is a preventive remedy to restrain the doing of an act about to be done, and not
intended to provide a remedy for an act already accomplished. 38 Here, however, said
Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The
instant petition has been intended, among other things, to also prevent CHR from precisely
doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human
Rights is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from
implementing the P500.00 fine for contempt. The temporary restraining order heretofore
issued by this Court is made permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo,
Quiason and Puno, JJ., concur.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human rights, et
al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the resolution of 29
January 1991 and my dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view that the
CHR can issue a cease and desist order to maintain a status quo pending its investigation
of a case involving an alleged human rights violation; that such cease and desist order
maybe necessary in situations involving a threatened violation of human rights, which the
CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of the stalls, sari-sari
stores and carinderias as well as the temporary shanties owned by the private respondents
as posing prima facie a case of human rights violation because it involves an impairment
of the civil rights of said private respondents, under the definition of civil rights cited by
the majority opinion (pp. 20-21) and which the CHR has unquestioned authority to
investigate (Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend beyond impressive displays of
placards at street corners. Positive action and results are what count. Certainly, the cause
of human rights is not enhanced when the very constitutional agency tasked to protect and
vindicate human rights is transformed by us, from the start, into a tiger without dentures
but with maimed legs to boot. I submit the CHR should be given a wide latitude to look into
and investigate situations which may (or may not ultimately) involve human rights
violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for further
proceedings.
SIMON, JR. vs COMMISSION ON HUMAN RIGHTS
G.R. No. 100150, January 5, 1994
FACTS:
On July 23, 1990, the Commission on Human Rights (CHR) issued and order, directing the
petitioners "to desist from demolishing the stalls and shanties at North EDSA pending the
resolution of the vendors/squatters complaint before the Commission" and ordering said
petitioners to appear before the CHR.
On September 10, 1990, petitioner filed a motion to dismiss questioning CHR's jurisdiction
and supplemental motion to dismiss was filed on September 18, 1990 stating that
Commissioners' authority should be understood as being confined only to the investigation
of violations of civil and political rights, and that "the rights allegedly violated in this case
were not civil and political rights, but their privilege to engage in business".
On March 1, 1991, the CHR issued and Order denying petitioners' motion and
supplemental motion to dismiss. And petitioners' motion for reconsideration was denied
also in an Order, dated April 25, 1991.
The Petitioner filed a a petition for prohibition, praying for a restraining order and
preliminary injunction. Petitioner also prayed to prohibit CHR from further hearing and
investigating CHR Case No. 90-1580, entitled "Ferno, et.al vs. Quimpo, et.al".
ISSUE:
Is the issuance of an "order to desist" within the extent of the authority and power of the
CRH?
HELD:
No, the issuance of an "order to desist" is not within the extent of authority and power of
the CHR. Article XIII, Section 18(1), provides the power and functions of the CHR to
"investigate, on its own or on complaint by any part, all forms of human rights violation,
involving civil and political rights".
The "order to desist" however is not investigatory in character but an adjudicative power
that the it does not possess. The Constitutional provision directing the CHR to provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection may not be construed to confer jurisdiction on the
Commission to issue an restraining order or writ of injunction, for it were the intention, the
Constitution would have expressly said so. Not being a court of justice, the CHR itself has
no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued by
the Judge in any court in which the action is pending or by a Justice of the CA or of the SC.
The writ prayed for the petition is granted. The CHR is hereby prohibited from further
proceeding with CHR Case No. 90-1580.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS
D. ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm
"engaged principally in the recruitment of Filipino workers, male and female, for overseas
placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of
1988, of the Department of Labor and Employment, in the character of "GUIDELINES
GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND
HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the
measure is assailed for "discrimination against males or females;" 2 that it "does not apply
to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and
that it is violative of the right to travel. It is held likewise to be an invalid exercise of the
lawmaking power, police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their
rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended,
was passed in the absence of prior consultations. It is claimed, finally, to be in violation of
the Charter's non-impairment clause, in addition to the "great and irreparable injury" that
PASEI members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor
and Administrator of the Philippine Overseas Employment Administration, filed a Comment
informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the
deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States,
Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The
only question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as
the "state authority to enact legislation that may interfere with personal liberty or property
in order to promote the general welfare." 5 As defined, it consists of (1) an imposition of
restraint upon liberty or property, (2) in order to foster the common good. It is not capable
of an exact definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient and flexible response
to conditions and circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to
the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact
of statehood and sovereignty. It is a fundamental attribute of government that has enabled
it to perform the most vital functions of governance. Marshall, to whom the expression has
been credited, 7 refers to it succinctly as the plenary power of the State "to govern its
citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and it is not
inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted
in the conception that men in organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend thereby to enable an individual
citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to ensure communal peace, safety, good order, and welfare." 10
Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties "Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's will." 11 It is subject to the far more
overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all
its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise,
and in that event, it defeats the purpose for which it is exercised, that is, to advance the
public good. Thus, when the power is used to further private interests at the expense of
the citizenry, there is a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and
convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be
nullified. There is no question that Department Order No. 1 applies only to "female contract
workers," 14 but it does not thereby make an undue discrimination between the sexes. It is
well-settled that "equality before the law" under the Constitution 15 does not import a
perfect Identity of rights among all men and women. It admits of classifications, provided
that (1) such classifications rest on substantial distinctions; (2) they are germane to the
purposes of the law; (3) they are not confined to existing conditions; and (4) they apply
equally to all members of the same class. 16
The Court is satisfied that the classification made-the preference for female workers
rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has
befallen our female labor force abroad, especially domestic servants, amid exploitative
working conditions marked by, in not a few cases, physical and personal abuse. The sordid
tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of
torture, confirmed by testimonies of returning workers, are compelling motives for urgent
Government action. As precisely the caretaker of Constitutional rights, the Court is called
upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there is no
evidence that, except perhaps for isolated instances, our men abroad have been afflicted
with an Identical predicament. The petitioner has proffered no argument that the
Government should act similarly with respect to male workers. The Court, of course, is not
impressing some male chauvinistic notion that men are superior to women. What the Court
is saying is that it was largely a matter of evidence (that women domestic workers are
being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary
yardstick that the Government acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this Court accepts. The Court cannot,
however, say the same thing as far as men are concerned. There is simply no evidence to
justify such an inference. Suffice it to state, then, that insofar as classifications are
concerned, this Court is content that distinctions are borne by the evidence. Discrimination
in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the
Court. Under a republican regime, it is the executive branch that enforces policy. For their
part, the courts decide, in the proper cases, whether that policy, or the manner by which it
is implemented, agrees with the Constitution or the laws, but it is not for them to question
its wisdom. As a co-equal body, the judiciary has great respect for determinations of the
Chief Executive or his subalterns, especially when the legislature itself has specifically
given them enough room on how the law should be effectively enforced. In the case at bar,
there is no gainsaying the fact, and the Court will deal with this at greater length shortly,
that Department Order No. 1 implements the rule-making powers granted by the Labor
Code. But what should be noted is the fact that in spite of such a fiction of finality, the
Court is on its own persuaded that prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the
measure. Unquestionably, it is the avowed objective of Department Order No. 1 to
"enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel
that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban
on deployment will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending
review of the administrative and legal measures, in the Philippines and in the host
countries . . ." 18), meaning to say that should the authorities arrive at a means impressed
with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is
possessed of a necessary malleability, depending on the circumstances of each case.
Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE) may, upon
recommendation of the Philippine Overseas Employment Administration (POEA), lift the
suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female domestic
overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for
unconstitutionality. Had the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are similarly
circumstanced. What the Constitution prohibits is the singling out of a select person or
group of persons within an existing class, to the prejudice of such a person or group or
resulting in an unfair advantage to another person or group of persons. To apply the ban,
say exclusively to workers deployed by A, but not to those recruited by B, would obviously
clash with the equal protection clause of the Charter. It would be a classic case of what
Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an
unlawful invasion of property rights and freedom of contract and needless to state, an
invalid act. 22 (Fernando says: "Where the classification is based on such distinctions that
make a real difference as infancy, sex, and stage of civilization of minority groups, the
better rule, it would seem, is to recognize its validity only if the young, the women, and the
cultural minorities are singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law ministering to their
needs is made the basis of discriminatory legislation against them. If such be the case, it
would be difficult to refute the assertion of denial of equal protection." 23 In the case at
bar, the assailed Order clearly accords protection to certain women workers, and not the
contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas
deployment. From scattered provisions of the Order, it is evident that such a total ban has
hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar
skills defined herein to the following [sic] are authorized under these guidelines and are
exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly accredited international
organizations.
5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral
labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--Vacationing
domestic helpers and/or workers of similar skills shall be allowed to process with the POEA
and leave for worksite only if they are returning to the same employer to finish an existing
or partially served employment contract. Those workers returning to worksite to serve a
new employer shall be covered by the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may,
upon recommendation of the Philippine Overseas Employment Administration (POEA), lift
the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right.
The right to travel is subject, among other things, to the requirements of "public safety,"
"as may be provided by law." 25 Department Order No. 1 is a valid implementation of the
Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the
respondent Department of Labor's rule-making authority vested in it by the Labor Code. 27
The petitioner assumes that it is unreasonable simply because of its impact on the right to
travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid
qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police power is the domain of the legislature,
but it does not mean that such an authority may not be lawfully delegated. As we have
mentioned, the Labor Code itself vests the Department of Labor and Employment with
rulemaking powers in the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in policy
and decision-making processes affecting their rights and benefits" 29 is not well-taken. The
right granted by this provision, again, must submit to the demands and necessities of the
State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for
all. 30
"Protection to labor" does not signify the promotion of employment alone. What concerns
the Constitution more paramountly is that such an employment be above all, decent, just,
and humane. It is bad enough that the country has to send its sons and daughters to
strange lands because it cannot satisfy their employment needs at home. Under these
circumstances, the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In this case, the
Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack
or inadequacy of such protection, and as part of its duty, it has precisely ordered an
indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its
authority. It is not contested that it has in fact removed the prohibition with respect to
certain countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the
loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like
all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez
faire has never been fully accepted as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain
profits of business firms. In the ordinary sequence of events, it is profits that suffer as a
result of Government regulation. The interest of the State is to provide a decent living to its
citizens. The Government has convinced the Court in this case that this is its intent. We do
not find the impugned Order to be tainted with a grave abuse of discretion to warrant the
extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.
PASEI v. Drilon
G.R. No. 81958 June 30, 1988, Sarmiento, J.
(Labor Standards, Police Power defined)
FACTS:
Phil association of Service Exporters, Inc., is engaged principally in the recruitment of
Filipino workers, male and female of overseas employment. It challenges the constitutional
validity of Dept. Order No. 1 (1998) of DOLE entitled Guidelines Governing the Temporary
Suspension of Deployment of Filipino Domestic and Household Workers. It claims that
such order is a discrimination against males and females. The Order does not apply to all
Filipino workers but only to domestic helpers and females with similar skills, and that it is in
violation of the right to travel, it also being an invalid exercise of the lawmaking power.
Further, PASEI invokes Sec 3 of Art 13 of the Constitution, providing for worker participation
in policy and decision-making processes affecting their rights and benefits as may be
provided by law. Thereafter the Solicitor General on behalf of DOLE submitting to the
validity of the challenged guidelines involving the police power of the State and informed
the court that the respondent have lifted the deployment ban in some states where there
exists bilateral agreement with the Philippines and existing mechanism providing for
sufficient safeguards to ensure the welfare and protection of the Filipino workers.
ISSUE:
Whether or not D.O. No. 1 of DOLE is constitutional as it is an exercise of police power.
RULING:
[Police power] has been defined as the "state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general welfare." As
defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to
foster the common good. It is not capable of an exact definition but has been, purposely,
veiled in general terms to underscore its all-comprehensive embrace.
The petitioner has shown no satisfactory reason why the contested measure should be
nullified. There is no question that Department Order No. 1 applies only to "female contract
workers," but it does not thereby make an undue discrimination between the sexes. It is
well-settled that "equality before the law" under the Constitution does not import a perfect
Identity of rights among all men and women. It admits of classifications, provided that (1)
such classifications rest on substantial distinctions; (2) they are germane to the purposes
of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all
members of the same class.
The Court is satisfied that the classification made-the preference for female workers
rests on substantial distinctions.
PASEI vs DRILON Edit 0 1
PASEI vs DRILON
163 SCRA 380
Facts:Petitioner, Phil association of Service Exporters, Inc., is engaged principally in the
recruitment of Filipino workers, male and female of overseas employment. It challenges
the constitutional validity of Dept. Order No. 1 (1998) of DOLE entitled Guidelines
Governing the Temporary Suspension of Deployment of Filipino Domestic and Household
Workers. It claims that such order is a discrimination against males and females. The
Order does not apply to all Filipino workers but only to domestic helpers and females with
similar skills, and that it is in violation of the right to travel, it also being an invalid exercise
of the lawmaking power. Further, PASEI invokes Sec 3 of Art 13 of the Constitution,
providing for worker participation in policy and decision-making processes affecting their
rights and benefits as may be provided by law. Thereafter the Solicitor General on behalf of
DOLE submitting to the validity of the challenged guidelines involving the police power of
the State and informed the court that the respondent have lifted the deployment ban in
some states where there exists bilateral agreement with the Philippines and existing
mechanism providing for sufficient safeguards to ensure the welfare and protection of the
Filipino workers.
Issue:Whether or not there has been a valid classification in the challenged Department
Order No. 1.
Decision:SC in dismissing the petition ruled that there has been valid classification, the
Filipino female domestics working abroad were in a class by themselves, because of the
special risk to which their class was exposed. There is no question that Order No.1 applies
only to female contract workers but it does not thereby make an undue discrimination
between sexes. It is well settled hat equality before the law under the constitution does not
import a perfect identity of rights among all men and women. It admits of classification,
provided that:
1. Such classification rests on substantial distinctions
2. That they are germane to the purpose of the law
3. They are not confined to existing conditions
4. They apply equally to al members of the same class
In the case at bar, the classifications made, rest on substantial distinctions.
Dept. Order No. 1 does not impair the right to travel. The consequence of the deployment
ban has on the right to travel does not impair the right, as the right to travel is subjects
among other things, to the requirements of public safety as may be provided by law.
Deployment ban of female domestic helper is a valid exercise of police power. Police power
as been defined as the state authority to enact legislation that may interfere with personal
liberty or property in order to promote general welfare. Neither is there merit in the
contention that Department Order No. 1 constitutes an invalid exercise of legislative power
as the labor code vest the DOLE with rule making powers.
SECOND DIVISION
[G.R. No. 134625. August 31, 1999]
UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR ROGER
POSADAS, DR. EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR. ISAGANI MEDINA,
DR. MARIA SERENA DIOKNO, DR. OLIVIA CAOILI, DR. FRANCISCO NEMENZO II,
DEAN PACIFICO AGABIN, CARMELITA GUNO, and MARICHU LAMBINO, petitioners,
vs. HON. COURT OF APPEALS and AROKIASWAMY WILLIAM MARGARET CELINE,
respondents.
DECISION
MENDOZA, J.:
For review before the Court is the decision of the Court of Appeals[1] in CA-G.R. SP No.
42788, dated December 16, 1997, which granted private respondents application for a writ
of mandatory injunction, and its resolution, dated July 13, 1998, denying petitioners motion
for reconsideration.
The antecedent facts are as follows:
Private respondent Arokiaswamy William Margaret Celine is a citizen of India and holder of
a Philippine visitors visa. Sometime in April 1988, she enrolled in the doctoral program in
Anthropology of the University of the Philippines College of Social Sciences and Philosophy
(CSSP) in Diliman, Quezon City.
After completing the units of course work required in her doctoral program, private
respondent went on a two-year leave of absence to work as Tamil Programme Producer of
the Vatican Radio in the Vatican and as General Office Assistant at the International Right
to Life Federation in Rome. She returned to the Philippines in July 1991 to work on her
dissertation entitled, Tamil Influences in Malaysia, Indonesia and the Philippines.
On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department of
Anthropology, wrote a letter to Dr. Maria Serena Diokno, CSSP Associate Dean and
Graduate Program Director, certifying that private respondent had finished her dissertation
and was ready for her oral defense. Dr. Rolda suggested that the oral defense be held on
January 6, 1993 but, in a letter, dated February 2, 1993, Dr. Serena Diokno rescheduled it
on February 5, 1993. Named as members of the dissertation panel were Drs. E. Arsenio
Manuel, Serafin Quiason, Sri Skandarajah, Noel Teodoro, and Isagani Medina, the last
included as the deans representative.
After going over private respondents dissertation, Dr. Medina informed CSSP Dean
Consuelo Joaquin-Paz that there was a portion in private respondents dissertation that was
lifted, without proper acknowledgment, from Balfours Cyclopaedia of India and Eastern and
Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour 1885 reprint) and from
John Edyes article entitled Description of the Various Classes of Vessels Constructed and
Employed by the Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon
for their Coasting Navigation in the Royal Asiatic Society of Great Britain and Ireland
Journal, volume I, pp. 1-14 (1833).[2]
Nonetheless, private respondent was allowed to defend her dissertation on February 5,
1993. Four (4) out of the five (5) panelists gave private respondent a passing mark for her
oral defense by affixing their signatures on the approval form. These were Drs. Manuel,
Quiason, Skandarajah, and Teodoro. Dr. Quiason added the following qualification to his
signature:
Ms. Arokiaswamy must incorporate the suggestions I made during the successful defense
of her Ph.D. thesis.[3]
Dr. Medina did not sign the approval form but added the following comment:
Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga revisions
ng dissertation.[4]
Dr. Teodoro added the following note to his signature:
Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel ang bound
copies.[5]
In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel, private
respondent requested a meeting with the panel members, especially Dr. Medina, to discuss
the amendments suggested by the panel members during the oral defense. The meeting
was held at the deans office with Dean Paz, private respondent, and a majority of the
defense panel present.[6] During the meeting, Dean Paz remarked that a majority vote of
the panel members was sufficient for a student to pass, notwithstanding the failure to
obtain the consent of the Deans representative.
On March 24, 1993, the CSSP College Faculty Assembly approved private respondents
graduation pending submission of final copies of her dissertation.
In April 1993, private respondent submitted copies of her supposedly revised dissertation
to Drs. Manuel, Skandarajah, and Quiason, who expressed their assent to the dissertation.
Petitioners maintain, however, that private respondent did not incorporate the revisions
suggested by the panel members in the final copies of her dissertation.
Private respondent left a copy of her dissertation in Dr. Teodoros office on April 15, 1993
and proceeded to submit her dissertation to the CSSP without the approvals of Dr. Medina
and Dr. Teodoro, relying on Dean Pazs March 5, 1993 statement.
Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the approval form.
[7]
Dean Paz then accepted private respondents dissertation in partial fulfillment of the course
requirements for the doctorate degree in Anthropology.
In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern over
matters related to her dissertation. She sought to explain why the signature of Dr. Medina
was not affixed to the revision approval form. Private respondent said that since she
already had the approval of a majority of the panel members, she no longer showed her
dissertation to Dr. Medina nor tried to obtain the latters signature on the revision approval
form. She likewise expressed her disappointment over the CSSP administration and
charged Drs. Diokno and Medina with maliciously working for the disapproval of her
dissertation, and further warned Dean Paz against encouraging perfidious acts against her.
On April 17, 1993, the University Council met to approve the list of candidates for
graduation for the second semester of school year 1992-1993. The list, which was
endorsed to the Board of Regents for final approval, included private respondents name.
On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for Academic
Affairs, requesting the exclusion of private respondents name from the list of candidates
for graduation, pending clarification of the problems regarding her dissertation. Her letter
reads:[8]
Abril 21, 1993
Dr. Milagros Ibe
Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.
Mahal na Dr. Ibe,
Mahigpit ko pong hinihiling na hwag munang isama ang pangalan ni Ms. Arokiaswam[y]
William Margaret Celine sa listahan ng mga bibigyan ng degri na Ph.D. (Anthropology)
ngayon[g] semester, dahil sa mga malubhang bintang nya sa ilang myembro ng panel
para sa oral defense ng disertasyon nya at sa mga akusasyon ng ilan sa mga ito sa kanya.
Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang degri kay
Ms. Arokiaswam[y]. Kelangan po ito para mapangalagaan ang istandard ng pinakamataas
na degree ng Unibersidad.
(Sgd.)
CONSUELO JOAQUIN-PAZ, Ph.D.
Dekano
Apparently, however, Dean Pazs letter did not reach the Board of Regents on time, because
the next day, April 22, 1993, the Board approved the University Councils recommendation
for the graduation of qualified students, including private respondent. Two days later, on
April 24, 1993, private respondent graduated with the degree of Doctor of Philosophy in
Anthropology.
On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21,
1993, that she would not be granted an academic clearance unless she substantiated the
accusations contained in her letter dated April 17, 1993.
In her letter, dated April 27, 1993, private respondent claimed that Dr. Medinas
unfavorable attitude towards her dissertation was a reaction to her failure to include him
and Dr. Francisco in the list of panel members; that she made the revisions proposed by
Drs. Medina and Teodoro in the revised draft of her dissertation; and that Dr. Diokno was
guilty of harassment.
In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged private
respondent with plagiarism and recommended that the doctorate granted to her be
withdrawn.[9]
On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty members
from various disciplines and chaired by Dr. Eva Duka-Ventura, to investigate the plagiarism
charge against private respondent. Meanwhile, she recommended to U.P. Diliman
Chancellor, Dr. Emerlinda Roman, that the Ph.D. degree conferred on private respondent
be withdrawn.[10]
In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges
against her.[11]
On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at least
ninety (90) instances or portions in private respondents thesis which were lifted from
sources without proper or due acknowledgment.
On July 28, 1993, the CSSP College Assembly unanimously approved the recommendation
to withdraw private respondents doctorate degree and forwarded its recommendation to
the University Council. The University Council, in turn, approved and endorsed the same
recommendation to the Board of Regents on August 16, 1993.
On September 6, 1993, the Board of Regents deferred action on the recommendation to
study the legal implications of its approval.[12]
Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor Emerlinda
Roman summoned private respondent to a meeting on the same day and asked her to
submit her written explanation to the charges against her.
During the meeting, Chancellor Roman informed private respondent of the charges and
provided her a copy of the findings of the investigating committee.[13] Private respondent,
on the other hand, submitted her written explanation in a letter dated September 25,
1993.
Another meeting was held on October 8, 1993 between Chancellor Roman and private
respondent to discuss her answer to the charges. A third meeting was scheduled on
October 27, 1993 but private respondent did not attend it, alleging that the Board of
Regents had already decided her case before she could be fully heard.
On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President, alleging
that some members of the U.P. administration were playing politics in her case.[14] She
sent another letter, dated December 14, 1993, to Dr. Armand Fabella, Chairman of the
Board of Regents, complaining that she had not been afforded due process and claiming
that U.P. could no longer withdraw her degree since her dissertation had already been
accepted by the CSSP.[15]
Meanwhile, the U.P. Office of Legal Services justified the position of the University Council
in its report to the Board of Regents. The Board of Regents, in its February 1, 1994 and
March 24, 1994 meetings, further deferred action thereon.
On July 11, 1994, private respondent sent a letter to the Board of Regents requesting a re-
investigation of her case. She stressed that under the Rules and Regulations on Student
Conduct and Discipline, it was the student disciplinary tribunal which had jurisdiction to
decide cases of dishonesty and that the withdrawal of a degree already conferred was not
one of the authorized penalties which the student disciplinary tribunal could impose.
On July 28, 1994, the Board of Regents decided to release private respondents transcript of
grades without annotation although it showed that private respondent passed her
dissertation with 12 units of credit.
On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 94-94
constituting a special committee composed of senior faculty members from the U.P. units
outside Diliman to review the University Councils recommendation to withdraw private
respondents degree. With the approval of the Board of Regents and the U.P. Diliman
Executive Committee, Posadas created a five-man committee, chaired by Dr. Paulino B.
Zafaralla, with members selected from a list of nominees screened by Dr. Emerenciana
Arcellana, then a member of the Board of Regents. On August 31, 1994, the members of
the Zafaralla committee and private respondent met at U.P. Los Baos.
Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private respondent a
copy of her transcript of grades and certificate of graduation.
In a letter to Chancellor Posadas, dated September 1, 1994, private respondent requested
that the Zafaralla committee be provided with copies of the U.P. Charter (Act No. 1870),
the U.P. Rules and Regulations on Student Conduct and Discipline, her letter-response to
Chancellor Roman, dated September 25, 1993, as well as all her other communications.
On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committees report,
signed by its chairman, recommending the withdrawal of private respondents doctorate
degree. The report stated:[16]
After going through all the pertinent documents of the case and interviewing Ms.
Arokiaswamy William, the following facts were established:
1. There is overwhelming evidence of massive lifting from a published source word for
word and, at times, paragraph by paragraph without any acknowledgment of the source,
even by a mere quotation mark. At least 22 counts of such documented liftings were
identified by the Committee. These form part of the approximately ninety (90) instances
found by the Committee created by the Dean of the College and subsequently verified as
correct by the Special Committee. These instances involved the following forms of
intellectual dishonesty: direct lifting/copying without acknowledgment, full/partial lifting
with improper documentation and substitution of terms or words (e.g., Tamil in place of
Sanskrit, Tamilization in place of Indianization) from an acknowledged source in support of
her thesis (attached herewith is a copy of the documents for reference); and
2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of plagiarism.
Fact is, she informed the Special Committee that she had been admitting having lifted
several portions in her dissertation from various sources since the beginning.
In view of the overwhelming proof of massive lifting and also on the admission of Ms.
Arokiaswamy William that she indeed plagiarized, the Committee strongly supports the
recommendation of the U.P. Diliman Council to withdraw the doctoral degree of Ms.
Margaret Celine Arokiaswamy William.
On the basis of the report, the University Council, on September 24, 1994, recommended
to the Board of Regents that private respondent be barred in the future from admission to
the University either as a student or as an employee.
On January 4, 1995, the secretary of the Board of Regents sent private respondent the
following letter:[17]
4 January 1995
Ms. Margaret Celine Arokiaswamy William
Department of Anthropology
College of Social Sciences and Philosophy
U.P. Diliman, Quezon City
Dear Ms. Arokiaswamy William:
This is to officially inform you about the action taken by the Board of Regents at its 1081st
and 1082nd meetings held last 17 November and 16 December 1994 regarding your case,
the excerpts from the minutes of which are attached herewith.
Please be informed that the members present at the 1081st BOR meeting on 17 November
1994 resolved, by a majority decision, to withdraw your Ph.D. degree as recommended by
the U.P. Diliman University Council and as concurred with by the External Review Panel
composed of senior faculty from U.P. Los Baos and U.P. Manila. These faculty members
were chosen by lot from names submitted by the University Councils of U.P. Los Baos and
U.P. Manila.
In reply to your 14 December 1994 letter requesting that you be given a good lawyer by
the Board, the Board, at its 1082nd meeting on 16 December 1994, suggested that you
direct your request to the Office of Legal Aid, College of Law, U.P. Diliman.
Sincerely yours,
(Sgd.)
VIVENCIO R. JOSE
Secretary of the University
and of the Board of Regents
On January 18, 1995, private respondent wrote a letter to Commissioner Sedfrey Ordoez,
Chairman of the Commission on Human Rights, asking the commissions intervention.[18]
In a letter, dated February 14, 1995, to Secretary Ricardo Gloria, Chairman of the Board of
Regents, she asked for a reinvestigation of her case. She also sought an audience with the
Board of Regents and/or the U.P. President, which request was denied by President Javier,
in a letter dated June 2, 1995.
On August 10, 1995, private respondent then filed a petition for mandamus with a prayer
for a writ of preliminary mandatory injunction and damages, which was docketed as Civil
Case No. Q-95-24690 and assigned to Branch 81 of the Regional Trial Court of Quezon City.
[19] She alleged that petitioners had unlawfully withdrawn her degree without justification
and without affording her procedural due process. She prayed that petitioners be ordered
to restore her degree and to pay her P500,000.00 as moral and exemplary damages and
P1,500,000.00 as compensation for lost earnings.
On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the petition
for mandamus for lack of merit.[20] Private respondent appealed to the Court of Appeals,
which on December 16, 1997, reversed the lower court. The dispositive portion of the
appellate courts decision reads:[21]
WHEREFORE, the decision of the court a quo is hereby reversed and set aside.
Respondents are ordered to restore to petitioner her degree of Ph.D. in Anthropology.
No pronouncement as to costs.
SO ORDERED.
Hence, this petition. Petitioners contend:
I entitled, there being no other plain, speedy, and adequate remedy in the ordinary course
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE WRIT OF
MANDAMUS AND ORDERING PETITIONERS TO RESTORE RESPONDENTS DOCTORAL
DEGREE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE DOCTORAL
DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE RECALLED WITHOUT VIOLATING HER
RIGHT TO ENJOYMENT OF INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING PETITIONERS OF
THEIR RIGHT TO SUBSTANTIVE DUE PROCESS.[22]
Petitioners argue that private respondent failed to show that she had been unlawfully
excluded from the use and enjoyment of a right or office to which she is entitled so as to
justify the issuance of the writ of mandamus. They also contend that she failed to prove
that the restoration of her degree is a ministerial duty of U.P. or that the withdrawal of the
degree violated her right to the enjoyment of intellectual property.
On the other hand, private respondent, unassisted by counsel, argue that petitioners acted
arbitrarily and with grave abuse of discretion in withdrawing her degree even prior to
verifying the truth of the plagiarism charge against her; and that as her answer to the
charges had not been forwarded to the members of the investigating committees, she was
deprived of the opportunity to comment or refute their findings.
In addition, private respondent maintains that petitioners are estopped from withdrawing
her doctorate degree; that petitioners acted contrary to 9 of the U.P. Charter and the U.P.
Rules and Regulations on Student Conduct and Discipline of the University, which
according to her, does not authorize the withdrawal of a degree as a penalty for erring
students; and that only the college committee or the student disciplinary tribunal may
decide disciplinary cases, whose report must be signed by a majority of its members.
We find petitioners contention to be meritorious.
Mandamus is a writ commanding a tribunal, corporation, board or person to do the act
required to be done when it or he unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is
of law.[23] In University of the Philippines Board of Regents v. Ligot-Telan,[24] this Court
ruled that the writ was not available to restrain U.P. from the exercise of its academic
freedom. In that case, a student who was found guilty of dishonesty and ordered
suspended for one year by the Board of Regents, filed a petition for mandamus and
obtained from the lower court a temporary restraining order stopping U.P. from carrying
out the order of suspension. In setting aside the TRO and ordering the lower court to
dismiss the students petition, this Court said:
[T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction
of May 29, 1993. The issuance of the said writ was based on the lower courts finding that
the implementation of the disciplinary sanction of suspension on Nadal would work
injustice to the petitioner as it would delay him in finishing his course, and consequently, in
getting a decent and good paying job. Sadly, such a ruling considers only the situation of
Nadal without taking into account the circumstances, clearly of his own making, which led
him into such a predicament. More importantly, it has completely disregarded the
overriding issue of academic freedom which provides more than ample justification for the
imposition of a disciplinary sanction upon an erring student of an institution of higher
learning.
From the foregoing arguments, it is clear that the lower court should have restrained itself
from assuming jurisdiction over the petition filed by Nadal. Mandamus is never issued in
doubtful cases, a showing of a clear and certain right on the part of the petitioner being
required. It is of no avail against an official or government agency whose duty requires the
exercise of discretion or judgment.[25]
In this case, the trial court dismissed private respondents petition precisely on grounds of
academic freedom but the Court of Appeals reversed holding that private respondent was
denied due process. It said:
It is worthy to note that during the proceedings taken by the College Assembly culminating
in its recommendation to the University Council for the withdrawal of petitioners Ph.D.
degree, petitioner was not given the chance to be heard until after the withdrawal of the
degree was consummated. Petitioners subsequent letters to the U.P. President proved
unavailing.[26]

As the foregoing narration of facts in this case shows, however, various committees had
been formed to investigate the charge that private respondent had committed plagiarism
and, in all the investigations held, she was heard in her defense. Indeed, if any criticism
may be made of the university proceedings before private respondent was finally stripped
of her degree, it is that there were too many committee and individual investigations
conducted, although all resulted in a finding that private respondent committed dishonesty
in submitting her doctoral dissertation on the basis of which she was conferred the Ph.D.
degree.
Indeed, in administrative proceedings, the essence of due process is simply the
opportunity to explain ones side of a controversy or a chance to seek reconsideration of
the action or ruling complained of.[27] A party who has availed of the opportunity to
present his position cannot tenably claim to have been denied due process.[28]
In this case, private respondent was informed in writing of the charges against her[29] and
afforded opportunities to refute them. She was asked to submit her written explanation,
which she forwarded on September 25, 1993.[30] Private respondent then met with the
U.P. chancellor and the members of the Zafaralla committee to discuss her case. In
addition, she sent several letters to the U.P. authorities explaining her position.[31]
It is not tenable for private respondent to argue that she was entitled to have an audience
before the Board of Regents. Due process in an administrative context does not require
trial-type proceedings similar to those in the courts of justice.[32] It is noteworthy that the
U.P. Rules do not require the attendance of persons whose cases are included as items on
the agenda of the Board of Regents.[33]
Nor indeed was private respondent entitled to be furnished a copy of the report of the
Zafaralla committee as part of her right to due process. In Ateneo de Manila University v.
Capulong,[34] we held:
Respondent students may not use the argument that since they were not accorded the
opportunity to see and examine the written statements which became the basis of
petitioners February 14, 1991 order, they were denied procedural due process. Granting
that they were denied such opportunity, the same may not be said to detract from the
observance of due process, for disciplinary cases involving students need not necessarily
include the right to cross examination. An administrative proceeding conducted to
investigate students participation in a hazing activity need not be clothed with the
attributes of a judicial proceeding. . .
In this case, in granting the writ of mandamus, the Court of Appeals held:
First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology. After
graduation, the contact between U.P. and petitioner ceased. Petitioner is no longer within
the ambit of the disciplinary powers of the U.P. As a graduate, she is entitled to the right
and enjoyment of the degree she has earned. To recall the degree, after conferment, is not
only arbitrary, unreasonable, and an act of abuse, but a flagrant violation of petitioners
right of enjoyment to intellectual property.
Second. Respondents aver that petitioners graduation was a mistake.
Unfortunately this mistake was arrived at after almost a year after graduation. Considering
that the members of the thesis panel, the College Faculty Assembly, and the U.P. Council
are all men and women of the highest intellectual acumen and integrity, as respondents
themselves aver, suspicion is aroused that the alleged mistake might not be the cause of
withdrawal but some other hidden agenda which respondents do not wish to reveal.
At any rate, We cannot countenance the plight the petitioner finds herself enmeshed in as
a consequence of the acts complained of. Justice and equity demand that this be rectified
by restoring the degree conferred to her after her compliance with the academic and other
related requirements.
Art. XIV, 5 (2) of the Constitution provides that [a]cademic freedom shall be enjoyed in all
institutions of higher learning. This is nothing new. The 1935 Constitution[35] and the 1973
Constitution[36] likewise provided for the academic freedom or, more precisely, for the
institutional autonomy of universities and institutions of higher learning. As pointed out by
this Court in Garcia v. Faculty Admission Committee, Loyola School of Theology,[37] it is a
freedom granted to institutions of higher learning which is thus given a wide sphere of
authority certainly extending to the choice of students. If such institution of higher learning
can decide who can and who cannot study in it, it certainly can also determine on whom it
can confer the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained through
fraud, a university has the right to revoke or withdraw the honor or distinction it has thus
conferred. This freedom of a university does not terminate upon the graduation of a
student, as the Court of Appeals held. For it is precisely the graduation of such a student
that is in question. It is noteworthy that the investigation of private respondents case
began before her graduation. If she was able to join the graduation ceremonies on April 24,
1993, it was because of too many investigations conducted before the Board of Regents
finally decided she should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the
constitutional grant of academic freedom, to quote again from Garcia v. Faculty Admission
Committee, Loyola School of Theology, is not to be construed in a niggardly manner or in a
grudging fashion.
Under the U.P. Charter, the Board of Regents is the highest governing body of the
University of the Philippines.[38] It has the power to confer degrees upon the
recommendation of the University Council.[39] It follows that if the conferment of a degree
is founded on error or fraud, the Board of Regents is also empowered, subject to the
observance of due process, to withdraw what it has granted without violating a students
rights. An institution of higher learning cannot be powerless if it discovers that an
academic degree it has conferred is not rightfully deserved. Nothing can be more
objectionable than bestowing a universitys highest academic degree upon an individual
who has obtained the same through fraud or deceit. The pursuit of academic excellence is
the universitys concern. It should be empowered, as an act of self-defense, to take
measures to protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their education, the USC
as an educational institution is also entitled to pursue its academic freedom and in the
process has the concomitant right to see to it that this freedom is not jeopardized.[40]
In the case at bar, the Board of Regents determined, after due investigation conducted by
a committee composed of faculty members from different U.P. units, that private
respondent committed no less than ninety (90) instances of intellectual dishonesty in her
dissertation. The Board of Regents decision to withdraw private respondents doctorate was
based on documents on record including her admission that she committed the offense.
[41]
On the other hand, private respondent was afforded the opportunity to be heard and
explain her side but failed to refute the charges of plagiarism against her. Her only claim is
that her responses to the charges against her were not considered by the Board of Regents
before it rendered its decision. However, this claim was not proven. Accordingly, we must
presume regularity in the performance of official duties in the absence of proof to the
contrary.[42]
Very much the opposite of the position of the Court of Appeals that, since private
respondent was no longer a student of the U.P., the latter was no longer within the ambit of
disciplinary powers of the U.P., is private respondents contention that it is the Student
Disciplinary Tribunal which had jurisdiction over her case because the charge is dishonesty.
Private respondent invokes 5 of the U.P. Rules and Regulations on Student Conduct and
Discipline which provides:
Jurisdiction. All cases involving discipline of students under these rules shall be subject to
the jurisdiction of the student disciplinary tribunal, except the following cases which shall
fall under the jurisdiction of the appropriate college or unit;
(a) Violation of college or unit rules and regulations by students of the college, or
(b) Misconduct committed by students of the college or unit within its classrooms or
premises or in the course of an official activity;
Provided, that regional units of the University shall have original jurisdiction over all cases
involving students of such units.
Private respondent argues that under 25 (a) of the said Rules and Regulations, dishonesty
in relation to ones studies (i.e., plagiarism) may be punished only with suspension for at
least one (1) year.
As the above-quoted provision of 5 of the Rules and Regulations indicates, the jurisdiction
of the student disciplinary tribunal extends only to disciplinary actions. In this case, U.P.
does not seek to discipline private respondent. Indeed, as the appellate court observed,
private respondent is no longer within the ambit of disciplinary powers of the U.P. Private
respondent cannot even be punished since, as she claims, the penalty for acts of
dishonesty in administrative disciplinary proceedings is suspension from the University for
at least one year. What U.P., through the Board of Regents, seeks to do is to protect its
academic integrity by withdrawing from private respondent an academic degree she
obtained through fraud.
WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the petition for
mandamus is hereby DISMISSED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.