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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 112497 August 4, 1994


HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF
JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER
ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF
MANILA, respondents.
The City Legal Officer for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).
Joseph Lopez for Sangguniang Panglunsod of Manila.
L.A. Maglaya for Petron Corporation.

CRUZ, J.:
The principal issue in this case is the constitutionality of Section 187 of the Local
Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue
Measures; Mandatory Public Hearings. — The procedure for approval of
local tax ordinances and revenue measures shall be in accordance with
the provisions of this Code: Provided, That public hearings shall be
conducted for the purpose prior to the enactment thereof; Provided,
further, That any question on the constitutionality or legality of tax
ordinances or revenue measures may be raised on appeal within thirty
(30) days from the effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date of receipt of the
appeal: Provided, however, That such appeal shall not have the effect of
suspending the effectivity of the ordinance and the accrual and payment of
the tax, fee, or charge levied therein: Provided, finally, That within thirty
(30) days after receipt of the decision or the lapse of the sixty-day period
without the Secretary of Justice acting upon the appeal, the aggrieved
party may file appropriate proceedings with a court of competent
jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies
and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue
Code, null and void for non-compliance with the prescribed procedure in the enactment
of tax ordinances and for containing certain provisions contrary to law and public
policy.1
In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila
revoked the Secretary's resolution and sustained the ordinance, holding inter alia that
the procedural requirements had been observed. More importantly, it declared Section
187 of the Local Government Code as unconstitutional because of its vesture in the
Secretary of Justice of the power of control over local governments in violation of the
policy of local autonomy mandated in the Constitution and of the specific provision
therein conferring on the President of the Philippines only the power of supervision over
local governments.2
The present petition would have us reverse that decision. The Secretary argues that the
annulled Section 187 is constitutional and that the procedural requirements for the
enactment of tax ordinances as specified in the Local Government Code had indeed not
been observed.
Parenthetically, this petition was originally dismissed by the Court for non-compliance
with Circular 1-88, the Solicitor General having failed to submit a certified true copy of
the challenged decision.3 However, on motion for reconsideration with the required
certified true copy of the decision attached, the petition was reinstated in view of the
importance of the issues raised therein.
We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general definition of
the judicial power to determine what are the valid and binding laws by the criterion of
their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial
courts jurisdiction over all civil cases in which the subject of the litigation is incapable of
pecuniary estimation,4 even as the accused in a criminal action has the right to question
in his defense the constitutionality of a law he is charged with violating and of the
proceedings taken against him, particularly as they contravene the Bill of Rights.
Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court
appellate jurisdiction over final judgments and orders of lower courts in all cases in
which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
In the exercise of this jurisdiction, lower courts are advised to act with the utmost
circumspection, bearing in mind the consequences of a declaration of unconstitutionality
upon the stability of laws, no less than on the doctrine of separation of powers. As the
questioned act is usually the handiwork of the legislative or the executive departments,
or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to
the higher judgment of this Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.5
It is also emphasized that every court, including this Court, is charged with the duty of a
purposeful hesitation before declaring a law unconstitutional, on the theory that the
measure was first carefully studied by the executive and the legislative departments and
determined by them to be in accordance with the fundamental law before it was finally
approved. To doubt is to sustain. The presumption of constitutionality can be overcome
only by the clearest showing that there was indeed an infraction of the Constitution, and
only when such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the challenged act must
be struck down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local
Government Code unconstitutional insofar as it empowered the Secretary of Justice to
review tax ordinances and, inferentially, to annul them. He cited the familiar distinction
between control and supervision, the first being "the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for the latter," while the second is "the
power of a superior officer to see to it that lower officers perform their functions in
accordance with law."6 His conclusion was that the challenged section gave to the
Secretary the power of control and not of supervision only as vested by the Constitution
in the President of the Philippines. This was, in his view, a violation not only of Article X,
specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of local
governments,8 and the policy of local autonomy in general.
We do not share that view. The lower court was rather hasty in invalidating the
provision.
Section 187 authorizes the Secretary of Justice to review only the constitutionality or
legality of the tax ordinance and, if warranted, to revoke it on either or both of these
grounds. When he alters or modifies or sets aside a tax ordinance, he is not also
permitted to substitute his own judgment for the judgment of the local government that
enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he
did not replace it with his own version of what the Code should be. He did not
pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did
not say that in his judgment it was a bad law. What he found only was that it was illegal.
All he did in reviewing the said measure was determine if the petitioners were
performing their functions in accordance with law, that is, with the prescribed procedure
for the enactment of tax ordinances and the grant of powers to the city government
under the Local Government Code. As we see it, that was an act not of control but of
mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not followed,
he may, in his discretion, order the act undone or re-done by his subordinate or he may
even decide to do it himself. Supervision does not cover such authority. The supervisor
or superintendent merely sees to it that the rules are followed, but he himself does not
lay down such rules, nor does he have the discretion to modify or replace them. If the
rules are not observed, he may order the work done or re-done but only to conform to
the prescribed rules. He may not prescribe his own manner for the doing of the act. He
has no judgment on this matter except to see to it that the rules are followed. In the
opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this,
and so performed an act not of control but of mere supervision.
The case of Taule v. Santos 9 cited in the decision has no application here because the
jurisdiction claimed by the Secretary of Local Governments over election contests in the
Katipunan ng Mga Barangay was held to belong to the Commission on Elections by
constitutional provision. The conflict was over jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which
provided in its Section 2 as follows:
A tax ordinance shall go into effect on the fifteenth day after its passage,
unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any
ordinance within one hundred and twenty days after receipt by him of a
copy thereof, if, in his opinion, the tax or fee therein levied or imposed is
unjust, excessive, oppressive, or confiscatory, or when it is contrary to
declared national economy policy, and when the said Secretary exercises
this authority the effectivity of such ordinance shall be suspended, either in
part or as a whole, for a period of thirty days within which period the local
legislative body may either modify the tax ordinance to meet the
objections thereto, or file an appeal with a court of competent jurisdiction;
otherwise, the tax ordinance or the part or parts thereof declared
suspended, shall be considered as revoked. Thereafter, the local
legislative body may not reimpose the same tax or fee until such time as
the grounds for the suspension thereof shall have ceased to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a tax
ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or
confiscatory. Determination of these flaws would involve the exercise
of judgment or discretion and not merely an examination of whether or not the
requirements or limitations of the law had been observed; hence, it would smack of
control rather than mere supervision. That power was never questioned before this
Court but, at any rate, the Secretary of Justice is not given the same latitude under
Section 187. All he is permitted to do is ascertain the constitutionality or legality of the
tax measure, without the right to declare that, in his opinion, it is unjust, excessive,
oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon
set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein
of certain ultra vires provisions and non-compliance with the prescribed procedure in its
enactment. These grounds affected the legality, not the wisdom or reasonableness, of
the tax measure.
The issue of non-compliance with the prescribed procedure in the enactment of the
Manila Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices of public
hearings on the proposed Manila Revenue Code that were sent to interested parties as
required by Art. 276(b) of the Implementing Rules of the Local Government Code nor
were copies of the proposed ordinance published in three successive issues of a
newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to
show that the obligatory public hearings had been held. Neither were copies of the
measure as approved posted in prominent places in the city in accordance with Sec.
511(a) of the Local Government Code. Finally, the Manila Revenue Code was not
translated into Pilipino or Tagalog and disseminated among the people for their
information and guidance, conformably to Sec. 59(b) of the Code.
Judge Palattao found otherwise. He declared that all the procedural requirements had
been observed in the enactment of the Manila Revenue Code and that the City of
Manila had not been able to prove such compliance before the Secretary only because
he had given it only five days within which to gather and present to him all the evidence
(consisting of 25 exhibits) later submitted to the trial court.
To get to the bottom of this question, the Court acceded to the motion of the
respondents and called for the elevation to it of the said exhibits. We have carefully
examined every one of these exhibits and agree with the trial court that the procedural
requirements have indeed been observed. Notices of the public hearings were sent to
interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are
found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed
ordinances were published in the Balita and the Manila Standard on April 21 and 25,
1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993
issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by
Exhibits Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this omission
does not affect its validity, considering that its publication in three successive issues of a
newspaper of general circulation will satisfy due process. It has also not been shown
that the text of the ordinance has been translated and disseminated, but this
requirement applies to the approval of local development plans and public investment
programs of the local government unit and not to tax ordinances.
We make no ruling on the substantive provisions of the Manila Revenue Code as their
validity has not been raised in issue in the present petition.
WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision
of the Regional Trial Court insofar as it declared Section 187 of the Local Government
Code unconstitutional but AFFIRMING its finding that the procedural requirements in
the enactment of the Manila Revenue Code have been observed. No pronouncement
as to costs.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN,
JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order
filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking
to enjoin respondent Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva
Vizcaya, who has filed his certificate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such, has taken his oath to support the
Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas
Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due
process guarantees of the Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section 10 of Art.
XI I-C of the Constitution and disqualification mentioned in existing laws,
which are hereby declared as disqualification for any of the elective
officials enumerated in section 1 hereof.
Any retired elective provincial city or municipal official who has received
payment of the retirement benefits to which he is entitled under the law,
and who shall have been 6,5 years of age at the commencement of the
term of office to which he seeks to be elected shall not be qualified to run
for the same elective local office from which he has retired (Emphasis
supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against
him, and that the classification provided therein is based on "purely arbitrary grounds
and, therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following
statutory provisions:
Sec 7. Terms of Office — Unless sooner removed for cause, all local
elective officials hereinabove mentioned shall hold office for a term of six
(6) years, which shall commence on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including
acts amounting to subversion, insurrection, rebellion or other similar
crimes, shall not be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan political activity
therein:
provided that a judgment of conviction for any of the aforementioned
crimes shall be conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil court
or military tribunal after preliminary investigation shall be prima fascie
evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
Section 1. Election of certain Local Officials — ... The election shall be
held on January 30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period — The election period shall be
fixed by the Commission on Elections in accordance with Section 6, Art.
XII-C of the Constitution. The period of campaign shall commence on
December 29, 1979 and terminate on January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also
question the accreditation of some political parties by respondent COMELEC, as
authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section
9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any
public office shall be it. from any form of harassment and discrimination. "The question
of accreditation will not be taken up in this case but in that of Bacalso, et als. vs.
COMELEC et als. No. L-52232) where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have challenged be declared null
and void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural
infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a
misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and
Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The
respectively contest completely different statutory provisions. Petitioner Dumlao has
joined this suit in his individual capacity as a candidate. The action of petitioners Igot
and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead
nine constraints as the reason of their joint Petition, it would have required only a
modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly
procedure.
For another, there are standards that have to be followed inthe exercise of the function
of judicial review, namely (1) the existence of an appropriate case:, (2) an interest
personal and substantial by the party raising the constitutional question: (3) the plea that
the function be exercised at the earliest opportunity and (4) the necessity that the
constiutional question be passed upon in order to decide the case (People vs. Vera 65
Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the
parties have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases
and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause
guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not been adversely affected by the
application of that provision. No petition seeking Dumlao's disqualification has been filed
before the COMELEC. There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question posed in the abstract,
a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to
be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice
Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which
reads:
"Section 2. The Commission on Elections shall have the following power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and elective
provincial and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which
provides:
Section 11. Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute
must have a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied
that neither one has been convicted nor charged with acts of disloyalty to the State, nor
disqualified from being candidates for local elective positions. Neither one of them has
been calle ed to have been adversely affected by the operation of the statutory
provisions they assail as unconstitutional Theirs is a generated grievance. They have no
personal nor substantial interest at stake. In the absence of any litigate interest, they
can claim no locus standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's
suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in
Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by
one who will sustain a direct injury in consequence of its enforcement. Yet,
there are many decisions nullifying at the instance of taxpayers, laws
providing for the disbursement of public funds, upon the theory that "the
expenditure of public funds, by an officer of the State for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds," which may be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite
standing to attack the constitutionality of a statute, the general rule is that
not only persons individually affected, but also taxpayers have sufficient
interest in preventing the illegal expenditure of moneys raised by taxation
and they may, therefore, question the constitutionality of statutes requiring
expenditure of public moneys. (Philippine Constitution Association, Inc., et
als., vs. Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51,
and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public
funds. While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is
"being extracted and spent in violation of specific constitutional protections against
abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of
Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citingPhilippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's
suit, per se is no assurance of judicial review. As held by this Court in Tan vs.
Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this
Court is vested with discretion as to whether or not a taxpayer's suit should be
entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the
constitutionality of an act of the legislature will not be determined by the courts unless
that question is properly raised and presented in appropriate cases and is necessary to
a determination of the case; i.e., the issue of constitutionality must be the very lis mota
presented."
We have already stated that, by the standards set forth in People vs. Vera, the present
is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and
Salapantan. They are actually without cause of action. It follows that the necessity for
resolving the issue of constitutionality is absent, and procedural regularity would require
that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the
Courts not being entirely without discretion in the matter. Thus, adherence to the strict
procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs.
Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the
Opinion in the Tinio and Gonzalez cases having been penned by our present Chief
Justice. The reasons which have impelled us are the paramount public interest involved
and the proximity of the elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other
candidates for local positions based on the challenged provision have already been filed
with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows
Dumlao's contention of intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal
protection is neither well taken. The constitutional guarantee of equal protection of the
laws is subject to rational classification. If the groupings are based on reasonable and
real differentiations, one class can be treated and regulated differently from another
class. For purposes of public service, employees 65 years of age, have been validly
classified differently from younger employees. Employees attaining that age are subject
to compulsory retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates
should not be more than 65 years of age at the time they assume office, if applicable to
everyone, might or might not be a reasonable classification although, as the Solicitor
General has intimated, a good policy of the law would be to promote the emergence of
younger blood in our political elective echelons. On the other hand, it might be that
persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may
not be a reasonable disqualification for elective local officials. For one thing, there can
also be retirees from government service at ages, say below 65. It may neither be
reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local
official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial,
city or municipal office, there is reason to disqualify him from running for the same office
from which he had retired, as provided for in the challenged provision. The need for new
blood assumes relevance. The tiredness of the retiree for government work is present,
and what is emphatically significant is that the retired employee has already declared
himself tired and unavailable for the same government work, but, which, by virtue of a
change of mind, he would like to assume again. It is for this very reason that inequality
will neither result from the application of the challenged provision. Just as that provision
does not deny equal protection neither does it permit of such denial (see People vs.
Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal
classification. What is proscribes is a classification which is arbitrary and unreasonable.
That constitutional guarantee is not violated by a reasonable classification based upon
substantial distinctions, where the classification is germane to the purpose of the law
and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA
30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and
Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs.
Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to
that purpose, it cannot be considered invalid "even it at times, it may be susceptible to
the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando,
The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of
the questioned provision. Well accepted is the rule that to justify the nullification of a
law, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach. Courts are practically unanimous in the pronouncement that laws
shall not be declared invalid unless the conflict with the Constitution is clear beyond
reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair
4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
compentence of the legislature to prescribe qualifications for one who desires to
become a candidate for office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of
section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge,
may be divided in two parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be
conclusive evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are aware of
the presumption of validity that attaches to a challenged statute, of the well-settled
principle that "all reasonable doubts should be resolved in favor of constitutionality," and
that Courts will not set aside a statute as constitutionally defective "except in a clear
case." (People vs. Vera, supra). We are constrained to hold that this is one such clear
case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation,
according to the fundamental law, is not synonymous with guilt. The challenged proviso
contravenes the constitutional presumption of innocence, as a candidate is disqualified
from running for public office on the ground alone that charges have been filed against
him before a civil or military tribunal. It condemns before one is fully heard. In ultimate
effect, except as to the degree of proof, no distinction is made between a person
convicted of acts of dislotalty and one against whom charges have been filed for such
acts, as both of them would be ineligible to run for public office. A person disqualified to
run for public office on the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a crime with the penalty
of arresto, which carries with it the accessory penalty of suspension of the right to hold
office during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and
therefore, may be rebutted, yet. there is "clear and present danger" that because of the
proximity of the elections, time constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome the prima facie evidence against
him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the
Courts rather than before an administrative body such as the COMELEC. A highly
possible conflict of findings between two government bodies, to the extreme detriment
of a person charged, will thereby be avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be substituted for a judicial
determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second
paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is
hereby declared valid. Said paragraph reads:
SEC. 4. Special disqualification. — In addition to violation of Section 10 of
Article XII(C) of the Constitution and disqualifications mentioned in existing
laws which are hereby declared as disqualification for any of the elective
officials enumerated in Section 1 hereof, any retired elective provincial,
city or municipal official, who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65
years of age at the commencement of the term of office to which he seeks
to be elected, shall not be qualified to run for the same elective local office
from which he has retired.
2) That portion of the second paragraph of section 4 of Batas Pambansa
Bilang 52 providing that "... the filing of charges for the commission of
such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact", is hereby
declared null and void, for being violative of the constitutional presumption
of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring:


But as regards the matter of equal protection, I reiterate my view for Peralta that Sec.
9(1) Art. XI I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as
to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is
valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code,
as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v.
Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of
Batas Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of
the Court, penned by Justice Melencio-Herrera, of the standard that must be met before
the power of judicial review may be availed of, set forth with such lucidity and force by
Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People
v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional
issues raised. It was a cause for concern, for me at least, that counsel of private parties
in not a few cases in the recent past had shown less than full awareness of the
doctrines, procedural in character, that call for application whenever the exercise of this
awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of
judicial timidity, it remains true that no cavalier disregard of tried and tested concepts
should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In
that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in
its allegiance to the philosophy of judicial self-restraint. There are, however, limits to
judicial activism. It cannot be too strongly stressed that a petition of this character must
ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is
exuberance in the exercise of judicial power, the forms of litigation are but slight
retaining walls. It is right and proper that the voice of the Solicitor General should be
heard in protest against such neglect of rudimentary precepts. Necessarily then,
whenever objections based on refusal to abide by the procedural principles are
presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the
controversy is of such a character that to resolve doubts, erase uncertainty, and assure
respect for constitutional limitations, this Tribunal must pass on the merits. This is one
such case. I therefore concur with the opinion of the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few
words may not be amiss on what for me is the proper approach to take as to the lack of
power of this Court to pass on the motives of the legislative body, on the lack of
persuasiveness of petitioner's argument based on the equal protection guarantee, and
on the fundamental concept of fairness of which the due process clause is an
embodiment, thus calling for the nullification of the disqualification of a candidate upon
the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a
known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted
and designed precisely to frustrate any bid of herein petitioner to make a political come
back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly
attuned to discriminate against herein petitioner because every condition imposed as
disqualification grounds are known to be possessed by him because he was a former
elective provincial official who has received his retirement benefits, he desires to run for
the same elective office and at the commencement of the term of office to which he now
seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang
Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The
weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the
reasons, the promptings that may lead a legislator to cast his vote for or against a
proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There
is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court
[Supreme Court of the United States] from the beginning lend no support whatever to
the assumption that the judiciary may restrain the exercise of lawful power on the
assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O'
Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court
will look to statements by legislators for guidance as to the purpose of the legislature,
because the benefit to sound decision-making in this circumstance is thought sufficient
to risk the possibility of misreading Congress' purpose. It is entirely a different matter
when we are asked to void a statute that is, under well-settled criteria, constitutional on
its face, on the basis of what fewer than a handful of Congressmen said about it. What
motivates one legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise
legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about
it." 8
2. If, however, the provision in question is susceptible to the reproach that it amounts to
a denial of equal protection, then his plea for nullification should be accorded a
sympathetic response. As the opinion of the Court makes clear, such imputation is not
deserving of credence. The classification cannot be stigmatized as lacking in rationality.
It is germane to the subject. Age, as well as the fact of retirement and the receipt of
retirement benefits are factors that can enter into any legislative determination of what
disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land
Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on
all persons under similar circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot
be denied that others similarly fall under the same ban. It was not directed at petitioner
solely. The most that can be said is that he falls within the-proscribed class. The point
was likewise raised as to why should national officials be excluded in the above
provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In
its opinion, what called for such a measure is the propensity of the local officials having
reached the retirement age and having received retirement benefits once again running
for public office. Accordingly, the provision in question was enacted. A portion of the
opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted
with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly
attaining the cure of other analogous ills certainly does not stigmatize its effort as a
denial of equal protection. We have given our sanction to the principle underlying the
exercise of police power and taxation, but certainly not excluding eminent domain, that
'the legislature is not required by the Constitution to adhere to the policy of all "or none."
' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile
and unavailing ." 11
3. That brings us to the assailed provision as to the sufficiency of the filing of charges
for the commission of such crimes as subversion, insurrection, rebellion or others of
similar nature before a civil court or military tribunal after preliminary investigation, being
a prima facie evidence of such fact and therefore justifying the disqualification of a
candidate. The opinion of the Court invoked the constitutional presumption of innocence
as a basis for its being annulled. That conclusion is well-founded. Such being the case, I
am in full agreement. I would add that such a provision is moreover tainted with
arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may
be dispensed with at will. Its disregard is a matter of serious concern. It is a
constitutional safeguard of the highest order. It is a response to man's innate sense of
justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate
the opportunity of an individual to present himself as a candidate. If, as has been
invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human
propensity to take the easy way out and to file charges, then a candidate Would be hard
put to destroy the presumption. A sense of realism for me compels a declaration of
nullity of a provision which on its face is patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and
declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and
concurs with the pronouncement that the mere filing of charges shall be prima facie
cause for disqualification is void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would
impose a special disqualification on petitioner Patricio Dumlao from running for the
elective local office of governor of his home province of Nueva Vizcaya and would in
effect bar the electors of his province from electing him to said office in the January 30
elections, simply because he is a retired provincial governor of said province "who has
received payment of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of office to
which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official
from running for the same elective office (of governor, in this case) previously held by
him and from which he has retired is arbitrary, oppressive and unreasonable. Persons
similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or
councilor of 65 is entitled to run for governor (because the disqualification is for the
retiree of 65 to run for the same elective office from which he retired) but petitioner is
barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid
distinction? Is this not an arbitrary discrimination against petitioner who has cause to
that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no
other case by a former governor similarly barred by virtue of said provision can never be
cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional
guarantee that equal protection and security shall be given under the law to every
person, under analogous if not Identical circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that
would bar 65-year old retirees from running for the same elective local office) is not
rational nor reasonable. It is not germane nor relevant to the alleged purpose of
"infusing new blood" because such "old blood" retirees may continue in local
governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor
and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which
they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other
branches of government are not in any manner disqualified to run for any local elective
office, as in the case of retired Court of First Instance Judge (former Congressman)
Alberto S. Ubay who retired with full substantial retirement benefits as such judge in
1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate
for governor of his province. And even in the case of 65-year old local elective officials,
they are disqualified only when they have received payment of the retirement benefits to
which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they
have not received such retirement benefits, they are not disqualified. Certainly, their
disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification
of petitioner, which, it is claimed, "is based on a presumption that elective local officials
who have retired and are of advanced age cannot discharge the functions of the office
they seek as those who are differently situated." 3 Such presumption is sheer
conjecture. The mere fact that a candidate is less than 65 or has "young or new blood"
does not mean that he would be more efficient, effective and competent than a mature
65year old like petition er who has had experience on the job and who was observed at
the hearing to appear to be most physically fit. Sufice it to city the outstanding case of
the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was
elected a 80 as a member of the Interim Batasan Pambansa and who has just this
month completed 81 years of age and has been hailed by the President himself as "the
best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or
disqualification. Al. the most, a minimum age to hold public office has
been required as a qualification to insure a modicum of maturity 'now
reduced to 21 years in the present batas), but no maximum age has ever
been imposed as a disqualification for elect public office since the right
and win of the people to elect the candidate of their choice for any elective
office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection
clause which mandates that all persons subjected to legislation shall be treated alike,
under like circumstances and conditions, both in the privileges conferred and in the
liabilities imposed. The guarantee is meant to proscribe undue favor and individual or
class privilege on the one hand and hostile discrimination and the oppression of in
quality on the other. The questioned provision should therefore at the least be declared
invalid in its application insofar as it would disqualify petitioner from running for the
office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly
treated. Where no valid distinction could be made as to the relevant conditions that call
for consideration, there should be none as to the privileges conferred and the liabilities
imposed. There can be no undue favoritism or partiality on the one hand or hostility on
the other. Arbitrary selection and discrimination against persons in thus ruled out. For
the principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical are analogous. If law be looked upon in terms of
burden or charges, those that full within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article
C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office
shall be free from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second
paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of
charges of subversion, insurrection, rebellion or other similar crimes before a civil court
or military tribunal after preliminary investigation prima facie evidence of the fact of
commission of an act of disloyalty to the State on the part of the candidate and
disqualify him from his candidacy. Such a provision could be the most insidious weapon
to disqualify bona fide candidates who seem to be headed for election and places in the
hands of the military and civil prosecutors a dangerous and devastating weapon of
cutting off any candidate who may not be to their filing through the filing of last-hour
charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's
disloyalty to the State and of his disqualification from office, such judgment of conviction
must be final and unappealable. This is so specifically provided in Section 22 of the
1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide
candidate substantive due process and would be grossly violative of his constitutional
right of presumption of innocence and of the above-quoted provision of the 1973
Constitution protecting candidates for public office from any form of harassment and
discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two
preceding paragraphs, in view of the urgency of the matter and the evil sought to be
avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority
seems to have been dissipated by the view that the action to nullify such second
paragraph of section 4 of the Batas in question is premature and has not been properly
submitted for ajudication under the strict procedural require . If this be the case, my
above views, termed as concurrences, should be taken as dissents against the majority
action.

Separate Opinions

BARREDO, J., concurring:


But as regards the matter of equal protection, I reiterate my view for Peralta that Sec.
9(1) Art. XI I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as
to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is
valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code,
as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v.
Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of
Batas Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of
the Court, penned by Justice Melencio-Herrera, of the standard that must be met before
the power of judicial review may be availed of, set forth with such lucidity and force by
Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People
v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional
issues raised. It was a cause for concern, for me at least, that counsel of private parties
in not a few cases in the recent past had shown less than full awareness of the
doctrines, procedural in character, that call for application whenever the exercise of this
awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of
judicial timidity, it remains true that no cavalier disregard of tried and tested concepts
should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In
that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in
its allegiance to the philosophy of judicial self-restraint. There are, however, limits to
judicial activism. It cannot be too strongly stressed that a petition of this character must
ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is
exuberance in the exercise of judicial power, the forms of litigation are but slight
retaining walls. It is right and proper that the voice of the Solicitor General should be
heard in protest against such neglect of rudimentary precepts. Necessarily then,
whenever objections based on refusal to abide by the procedural principles are
presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the
controversy is of such a character that to resolve doubts, erase uncertainty, and assure
respect for constitutional limitations, this Tribunal must pass on the merits. This is one
such case. I therefore concur with the opinion of the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few
words may not be amiss on what for me is the proper approach to take as to the lack of
power of this Court to pass on the motives of the legislative body, on the lack of
persuasiveness of petitioner's argument based on the equal protection guarantee, and
on the fundamental concept of fairness of which the due process clause is an
embodiment, thus calling for the nullification of the disqualification of a candidate upon
the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a
known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted
and designed precisely to frustrate any bid of herein petitioner to make a political come
back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly
attuned to discriminate against herein petitioner because every condition imposed as
disqualification grounds are known to be possessed by him because he was a former
elective provincial official who has received his retirement benefits, he desires to run for
the same elective office and at the commencement of the term of office to which he now
seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang
Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The
weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the
reasons, the promptings that may lead a legislator to cast his vote for or against a
proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There
is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court
[Supreme Court of the United States] from the beginning lend no support whatever to
the assumption that the judiciary may restrain the exercise of lawful power on the
assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O'
Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court
will look to statements by legislators for guidance as to the purpose of the legislature,
because the benefit to sound decision-making in this circumstance is thought sufficient
to risk the possibility of misreading Congress' purpose. It is entirely a different matter
when we are asked to void a statute that is, under well-settled criteria, constitutional on
its face, on the basis of what fewer than a handful of Congressmen said about it. What
motivates one legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise
legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about
it." 8
2. If, however, the provision in question is susceptible to the reproach that it amounts to
a denial of equal protection, then his plea for nullification should be accorded a
sympathetic response. As the opinion of the Court makes clear, such imputation is not
deserving of credence. The classification cannot be stigmatized as lacking in rationality.
It is germane to the subject. Age, as well as the fact of retirement and the receipt of
retirement benefits are factors that can enter into any legislative determination of what
disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land
Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on
all persons under similar circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot
be denied that others similarly fall under the same ban. It was not directed at petitioner
solely. The most that can be said is that he falls within the-proscribed class. The point
was likewise raised as to why should national officials be excluded in the above
provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In
its opinion, what called for such a measure is the propensity of the local officials having
reached the retirement age and having received retirement benefits once again running
for public office. Accordingly, the provision in question was enacted. A portion of the
opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted
with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly
attaining the cure of other analogous ills certainly does not stigmatize its effort as a
denial of equal protection. We have given our sanction to the principle underlying the
exercise of police power and taxation, but certainly not excluding eminent domain, that
'the legislature is not required by the Constitution to adhere to the policy of all "or none."
' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile
and unavailing ." 11
3. That brings us to the assailed provision as to the sufficiency of the filing of charges
for the commission of such crimes as subversion, insurrection, rebellion or others of
similar nature before a civil court or military tribunal after preliminary investigation, being
a prima facie evidence of such fact and therefore justifying the disqualification of a
candidate. The opinion of the Court invoked the constitutional presumption of innocence
as a basis for its being annulled. That conclusion is well-founded. Such being the case, I
am in full agreement. I would add that such a provision is moreover tainted with
arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may
be dispensed with at will. Its disregard is a matter of serious concern. It is a
constitutional safeguard of the highest order. It is a response to man's innate sense of
justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate
the opportunity of an individual to present himself as a candidate. If, as has been
invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human
propensity to take the easy way out and to file charges, then a candidate Would be hard
put to destroy the presumption. A sense of realism for me compels a declaration of
nullity of a provision which on its face is patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and
declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and
concurs with the pronouncement that the mere filing of charges shall be prima facie
cause for disqualification is void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would
impose a special disqualification on petitioner Patricio Dumlao from running for the
elective local office of governor of his home province of Nueva Vizcaya and would in
effect bar the electors of his province from electing him to said office in the January 30
elections, simply because he is a retired provincial governor of said province "who has
received payment of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of office to
which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local official
from running for the same elective office (of governor, in this case) previously held by
him and from which he has retired is arbitrary, oppressive and unreasonable. Persons
similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or
councilor of 65 is entitled to run for governor (because the disqualification is for the
retiree of 65 to run for the same elective office from which he retired) but petitioner is
barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid
distinction? Is this not an arbitrary discrimination against petitioner who has cause to
that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no
other case by a former governor similarly barred by virtue of said provision can never be
cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional
guarantee that equal protection and security shall be given under the law to every
person, under analogous if not Identical circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that
would bar 65-year old retirees from running for the same elective local office) is not
rational nor reasonable. It is not germane nor relevant to the alleged purpose of
"infusing new blood" because such "old blood" retirees may continue in local
governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor
and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which
they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other
branches of government are not in any manner disqualified to run for any local elective
office, as in the case of retired Court of First Instance Judge (former Congressman)
Alberto S. Ubay who retired with full substantial retirement benefits as such judge in
1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate
for governor of his province. And even in the case of 65-year old local elective officials,
they are disqualified only when they have received payment of the retirement benefits to
which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they
have not received such retirement benefits, they are not disqualified. Certainly, their
disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification
of petitioner, which, it is claimed, "is based on a presumption that elective local officials
who have retired and are of advanced age cannot discharge the functions of the office
they seek as those who are differently situated." 3 Such presumption is sheer
conjecture. The mere fact that a candidate is less than 65 or has "young or new blood"
does not mean that he would be more efficient, effective and competent than a mature
65year old like petition er who has had experience on the job and who was observed at
the hearing to appear to be most physically fit. Sufice it to city the outstanding case of
the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was
elected a 80 as a member of the Interim Batasan Pambansa and who has just this
month completed 81 years of age and has been hailed by the President himself as "the
best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or
disqualification. Al. the most, a minimum age to hold public office has
been required as a qualification to insure a modicum of maturity 'now
reduced to 21 years in the present batas), but no maximum age has ever
been imposed as a disqualification for elect public office since the right
and win of the people to elect the candidate of their choice for any elective
office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection
clause which mandates that all persons subjected to legislation shall be treated alike,
under like circumstances and conditions, both in the privileges conferred and in the
liabilities imposed. The guarantee is meant to proscribe undue favor and individual or
class privilege on the one hand and hostile discrimination and the oppression of in
quality on the other. The questioned provision should therefore at the least be declared
invalid in its application insofar as it would disqualify petitioner from running for the
office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly
treated. Where no valid distinction could be made as to the relevant conditions that call
for consideration, there should be none as to the privileges conferred and the liabilities
imposed. There can be no undue favoritism or partiality on the one hand or hostility on
the other. Arbitrary selection and discrimination against persons in thus ruled out. For
the principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical are analogous. If law be looked upon in terms of
burden or charges, those that full within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article
C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office
shall be free from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second
paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of
charges of subversion, insurrection, rebellion or other similar crimes before a civil court
or military tribunal after preliminary investigation prima facie evidence of the fact of
commission of an act of disloyalty to the State on the part of the candidate and
disqualify him from his candidacy. Such a provision could be the most insidious weapon
to disqualify bona fide candidates who seem to be headed for election and places in the
hands of the military and civil prosecutors a dangerous and devastating weapon of
cutting off any candidate who may not be to their filing through the filing of last-hour
charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's
disloyalty to the State and of his disqualification from office, such judgment of conviction
must be final and unappealable. This is so specifically provided in Section 22 of the
1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide
candidate substantive due process and would be grossly violative of his constitutional
right of presumption of innocence and of the above-quoted provision of the 1973
Constitution protecting candidates for public office from any form of harassment and
discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two
preceding paragraphs, in view of the urgency of the matter and the evil sought to be
avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority
seems to have been dissipated by the view that the action to nullify such second
paragraph of section 4 of the Batas in question is premature and has not been properly
submitted for ajudication under the strict procedural require . If this be the case, my
above views, termed as concurrences, should be taken as dissents against the majority
action.

Separate Opinions
BARREDO, J., concurring:
But as regards the matter of equal protection, I reiterate my view for Peralta that Sec.
9(1) Art. XI I is more expensive than the equal protection clause.
AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as
to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is
valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code,
as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v.
Mingoa, 92 Phil. 856.
ABAD SANTOS, J., concurring:
concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of
Batas Pambansa Big. 52 should be one which is final and unappealable.
FERNANDO, C.J., concurring.
It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of
the Court, penned by Justice Melencio-Herrera, of the standard that must be met before
the power of judicial review may be availed of, set forth with such lucidity and force by
Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People
v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional
issues raised. It was a cause for concern, for me at least, that counsel of private parties
in not a few cases in the recent past had shown less than full awareness of the
doctrines, procedural in character, that call for application whenever the exercise of this
awesome and delicate responsibility of adjudging the validity of a statute or presidential
decree is invoked. 3While this Court cannot be accused of being bound by the letters of
judicial timidity, it remains true that no cavalier disregard of tried and tested concepts
should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In
that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in
its allegiance to the philosophy of judicial self-restraint. There are, however, limits to
judicial activism. It cannot be too strongly stressed that a petition of this character must
ever remain an orderly proceeding that cannot be oblivious of the requisites to be
complied with to justify a pronouncement on constitutional issues. Where there is
exuberance in the exercise of judicial power, the forms of litigation are but slight
retaining walls. It is right and proper that the voice of the Solicitor General should be
heard in protest against such neglect of rudimentary precepts. Necessarily then,
whenever objections based on refusal to abide by the procedural principles are
presented, this Court must rule. It would suffice if thereby the petition is dismissed for
non-observance of the controlling doctrines. There are times, however, when the
controversy is of such a character that to resolve doubts, erase uncertainty, and assure
respect for constitutional limitations, this Tribunal must pass on the merits. This is one
such case. I therefore concur with the opinion of the Court.
It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few
words may not be amiss on what for me is the proper approach to take as to the lack of
power of this Court to pass on the motives of the legislative body, on the lack of
persuasiveness of petitioner's argument based on the equal protection guarantee, and
on the fundamental concept of fairness of which the due process clause is an
embodiment, thus calling for the nullification of the disqualification of a candidate upon
the mere filing of charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a
known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted
and designed precisely to frustrate any bid of herein petitioner to make a political come
back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly
attuned to discriminate against herein petitioner because every condition imposed as
disqualification grounds are known to be possessed by him because he was a former
elective provincial official who has received his retirement benefits, he desires to run for
the same elective office and at the commencement of the term of office to which he now
seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for
invalidating such provision is the motive attributed to the Interim Batasang
Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The
weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the
reasons, the promptings that may lead a legislator to cast his vote for or against a
proposed legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of it. There
is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court
[Supreme Court of the United States] from the beginning lend no support whatever to
the assumption that the judiciary may restrain the exercise of lawful power on the
assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O'
Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court
will look to statements by legislators for guidance as to the purpose of the legislature,
because the benefit to sound decision-making in this circumstance is thought sufficient
to risk the possibility of misreading Congress' purpose. It is entirely a different matter
when we are asked to void a statute that is, under well-settled criteria, constitutional on
its face, on the basis of what fewer than a handful of Congressmen said about it. What
motivates one legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on the ground that it is unwise
legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about
it." 8
2. If, however, the provision in question is susceptible to the reproach that it amounts to
a denial of equal protection, then his plea for nullification should be accorded a
sympathetic response. As the opinion of the Court makes clear, such imputation is not
deserving of credence. The classification cannot be stigmatized as lacking in rationality.
It is germane to the subject. Age, as well as the fact of retirement and the receipt of
retirement benefits are factors that can enter into any legislative determination of what
disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land
Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on
all persons under similar circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot
be denied that others similarly fall under the same ban. It was not directed at petitioner
solely. The most that can be said is that he falls within the-proscribed class. The point
was likewise raised as to why should national officials be excluded in the above
provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In
its opinion, what called for such a measure is the propensity of the local officials having
reached the retirement age and having received retirement benefits once again running
for public office. Accordingly, the provision in question was enacted. A portion of the
opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted
with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly
attaining the cure of other analogous ills certainly does not stigmatize its effort as a
denial of equal protection. We have given our sanction to the principle underlying the
exercise of police power and taxation, but certainly not excluding eminent domain, that
'the legislature is not required by the Constitution to adhere to the policy of all "or none."
' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile
and unavailing ." 11
3. That brings us to the assailed provision as to the sufficiency of the filing of charges
for the commission of such crimes as subversion, insurrection, rebellion or others of
similar nature before a civil court or military tribunal after preliminary investigation, being
a prima facie evidence of such fact and therefore justifying the disqualification of a
candidate. The opinion of the Court invoked the constitutional presumption of innocence
as a basis for its being annulled. That conclusion is well-founded. Such being the case, I
am in full agreement. I would add that such a provision is moreover tainted with
arbitrariness and therefore is violative of the due process clause. Such a constitutional
right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may
be dispensed with at will. Its disregard is a matter of serious concern. It is a
constitutional safeguard of the highest order. It is a response to man's innate sense of
justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate
the opportunity of an individual to present himself as a candidate. If, as has been
invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled
as he is with so many complaints filed on his desk would give in to the all-too-human
propensity to take the easy way out and to file charges, then a candidate Would be hard
put to destroy the presumption. A sense of realism for me compels a declaration of
nullity of a provision which on its face is patently offensive to the Constitution.
Hence my concurrence.
TEEHANKEE, J., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and
declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and
concurs with the pronouncement that the mere filing of charges shall be prima facie
cause for disqualification is void.
I. I dissent from the majority's dismissal of the petition insofar as it upholds
the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa
Blg. 52 which would impose a special disqualification on petitioner Patricio
Dumlao from running for the elective local office of governor of his home
province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections,
simply because he is a retired provincial governor of said province "who
has received payment of the retirement benefits to which he is entitled
under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected.
To specially and peculiarly ban a 65-year old previously retired elective local official
from running for the same elective office (of governor, in this case) previously held by
him and from which he has retired is arbitrary, oppressive and unreasonable. Persons
similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or
councilor of 65 is entitled to run for governor (because the disqualification is for the
retiree of 65 to run for the same elective office from which he retired) but petitioner is
barred from doing so (although he may run for any other lesser office). Both are 65 and
are retirees, yet one is barred from running for the office of governor. What is the valid
distinction? Is this not an arbitrary discrimination against petitioner who has cause to
that "the aforesaid provision was concocted and designed precisely to frustrate any bid
of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no
other case by a former governor similarly barred by virtue of said provision can never be
cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional
guarantee that equal protection and security shall be given under the law to every
person, under analogous if not Identical circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that
would bar 65-year old retirees from running for the same elective local office) is not
rational nor reasonable. It is not germane nor relevant to the alleged purpose of
"infusing new blood" because such "old blood" retirees may continue in local
governments since they are not disqualified at all to run for any other local elective
office such as from provincial governor, vice-governor, city, municipal or district mayor
and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective office from which
they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other
branches of government are not in any manner disqualified to run for any local elective
office, as in the case of retired Court of First Instance Judge (former Congressman)
Alberto S. Ubay who retired with full substantial retirement benefits as such judge in
1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate
for governor of his province. And even in the case of 65-year old local elective officials,
they are disqualified only when they have received payment of the retirement benefits to
which they are entitled under the law (which amount to very little, compared to
retirement benefits of other executive officials and members of the judiciary). If they
have not received such retirement benefits, they are not disqualified. Certainly, their
disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification
of petitioner, which, it is claimed, "is based on a presumption that elective local officials
who have retired and are of advanced age cannot discharge the functions of the office
they seek as those who are differently situated." 3 Such presumption is sheer
conjecture. The mere fact that a candidate is less than 65 or has "young or new blood"
does not mean that he would be more efficient, effective and competent than a mature
65year old like petition er who has had experience on the job and who was observed at
the hearing to appear to be most physically fit. Sufice it to city the outstanding case of
the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was
elected a 80 as a member of the Interim Batasan Pambansa and who has just this
month completed 81 years of age and has been hailed by the President himself as "the
best foreign minister the Republic has ever had
Age has simply just never been a yardstick for qualification or
disqualification. Al. the most, a minimum age to hold public office has
been required as a qualification to insure a modicum of maturity 'now
reduced to 21 years in the present batas), but no maximum age has ever
been imposed as a disqualification for elect public office since the right
and win of the people to elect the candidate of their choice for any elective
office, no matter his age has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection
clause which mandates that all persons subjected to legislation shall be treated alike,
under like circumstances and conditions, both in the privileges conferred and in the
liabilities imposed. The guarantee is meant to proscribe undue favor and individual or
class privilege on the one hand and hostile discrimination and the oppression of in
quality on the other. The questioned provision should therefore at the least be declared
invalid in its application insofar as it would disqualify petitioner from running for the
office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly
treated. Where no valid distinction could be made as to the relevant conditions that call
for consideration, there should be none as to the privileges conferred and the liabilities
imposed. There can be no undue favoritism or partiality on the one hand or hostility on
the other. Arbitrary selection and discrimination against persons in thus ruled out. For
the principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical are analogous. If law be looked upon in terms of
burden or charges, those that full within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article
C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office
shall be free from any form of harassment and discrimination.
II. I concur with the majority's declaration of invalidity of the portion of the second
paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of
charges of subversion, insurrection, rebellion or other similar crimes before a civil court
or military tribunal after preliminary investigation prima facie evidence of the fact of
commission of an act of disloyalty to the State on the part of the candidate and
disqualify him from his candidacy. Such a provision could be the most insidious weapon
to disqualify bona fide candidates who seem to be headed for election and places in the
hands of the military and civil prosecutors a dangerous and devastating weapon of
cutting off any candidate who may not be to their filing through the filing of last-hour
charges against him.
I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's
disloyalty to the State and of his disqualification from office, such judgment of conviction
must be final and unappealable. This is so specifically provided in Section 22 of the
1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide
candidate substantive due process and would be grossly violative of his constitutional
right of presumption of innocence and of the above-quoted provision of the 1973
Constitution protecting candidates for public office from any form of harassment and
discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two
preceding paragraphs, in view of the urgency of the matter and the evil sought to be
avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority
seems to have been dissipated by the view that the action to nullify such second
paragraph of section 4 of the Batas in question is premature and has not been properly
submitted for ajudication under the strict procedural require . If this be the case, my
above views, termed as concurrences, should be taken as dissents against the majority
action.
EN BANC
[G. R. No. 140835. August 14, 2000
RAMON A. GONZALES, Petitioner, v. HON. ANDRES R. NARVASA, as Chairman,
PREPARATORY COMMISSION ON CONSTITUTIONAL REFORMS; HON.
RONALDO B. ZAMORA, as Executive Secretary; COMMISSION ON AUDIT;
ROBERTO AVENTAJADO, as Presidential Consultant on Council of Economic
Advisers/Economic Affairs; ANGELITO C. BANAYO, as Presidential Adviser
for/on Political Affairs; VERONICA IGNACIO-JONES, as Presidential Assistant/
Appointment Secretary (In charge of appointments), Respondents.
DECISION
GONZAGA-REYES, J.: chanrobles virtual law library
In this petition for prohibition and mandamus filed on December 9, 1999,
petitioner Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails
the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of presidential consultants,
advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the
presidential consultants, advisers and assistants from acting as such, and to
enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and
recommendations. In addition, petitioner seeks to enjoin the Commission on
Audit from passing in audit expenditures for the PCCR and the presidential
consultants, advisers and assistants. Finally, petitioner prays for an order
compelling respondent Zamora to furnish petitioner with information on certain
matters. chanrobles virtual law library
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his
capacity as Chairman of the PCCR, filed his Comment to the Petition. The rest of
the respondents, who are being represented in this case by the Solicitor General,
filed their Comment with this Court on March 7, 2000. Petitioner then filed a
Consolidated Reply on April 24, 2000, whereupon this case was considered
submitted for decision. chanrobles virtual law library
I. Preparatory Commission on Constitutional Reform chanrobles virtual law
library
The Preparatory Commission on Constitutional Reform (PCCR) was created by
President Estrada on November 26, 1998 by virtue of Executive Order No. 43 (E.O.
No. 43) in order to study and recommend proposed amendments and/or revisions
to the 1987 Constitution, and the manner of implementing the same.[1Petitioner
disputes the constitutionality of the PCCR on two grounds. First, he contends
that it is a public office which only the legislature can create by way of a
law.[2 Secondly, petitioner asserts that by creating such a body the President is
intervening in a process from which he is totally excluded by the Constitution the
amendment of the fundamental charter.3 chanrobles virtual law library
It is alleged by respondents that, with respect to the PCCR, this case has become
moot and academic. We agree. chanrobles virtual law library
An action is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or
dead.[4 Under E.O. No. 43, the PCCR was instructed to complete its task on or
before June 30, 1999.[5 However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the time frame for the
completion of the commissions work, viz chanrobles virtual law library
SECTION 6. Section 8 is hereby amended to read as follows: chanrobles virtual
law library
Time Frame. The Commission shall commence its work on 01 January 1999
and complete the same on or before 31 December 1999. The Commission
shall submit its report and recommendations to the President within fifteen
(15) working days from 31 December 1999. chanrobles virtual law library
The PCCR submitted its recommendations to the President on December 20, 1999
and was dissolved by the President on the same day. It had likewise spent the
funds allotted to it.[6 Thus, the PCCR has ceased to exist, having lost its raison
detre. Subsequent events have overtaken the petition and the Court has nothing
left to resolve. chanrobles virtual law library
The staleness of the issue before us is made more manifest by the impossibility
of granting the relief prayed for by petitioner. Basically, petitioner asks this Court
to enjoin the PCCR from acting as such.7 Clearly, prohibition is an inappropriate
remedy since the body sought to be enjoined no longer exists. It is well
established that prohibition is a preventive remedy and does not lie to restrain an
act that is already fait accompli.[8 At this point, any ruling regarding the PCCR
would simply be in the nature of an advisory opinion, which is definitely beyond
the permissible scope of judicial power. chanrobles virtual law library
In addition to the mootness of the issue, petitioners lack of standing constitutes
another obstacle to the successful invocation of judicial power insofar as the
PCCR is concerned. chanrobles virtual law library
The question in standing is whether a party has alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[9 In assailing the
constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen
and taxpayer.10 A citizen acquires standing only if he can establish that he has
suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.[11In Kilosbayan,
Incorporated v. Morato,[12 we denied standing to petitioners who were assailing a
lease agreement between the Philippine Charity Sweepstakes Office and the
Philippine Gaming Management Corporation, stating that, chanrobles virtual law
library
in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22,
1987, standing was denied to a petitioner who sought to declare a form of lottery
known as Instant Sweepstakes invalid because, as the Court held, chanrobles
virtual law library
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3)
minor children. But nowhere in his petition does petitioner claim that his rights
and privileges as a lawyer or citizen have been directly and personally injured by
the operation of the Instant Sweepstakes. The interest of the person assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law is invalid, but also that he has sustained or in
immediate danger of sustaining some direct injury as a result of its enforcement,
and not merely that he suffers thereby in some indefinite way. It must appear that
the person complaining has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute complained of. chanrobles virtual
law library
We apprehend no difference between the petitioner in Valmonteand the present
petitioners. Petitioners do not in fact show what particularized interest they have
for bringing this suit. It does not detract from the high regard for petitioners as
civic leaders to say that their interest falls short of that required to maintain an
action under Rule 3, d 2. chanrobles virtual law library
Coming now to the instant case, petitioner has not shown that he has sustained
or is in danger of sustaining any personal injury attributable to the creation of the
PCCR. If at all, it is only Congress, not petitioner, which can claim any injury in
this case since, according to petitioner, the President has encroached upon the
legislatures powers to create a public office and to propose amendments to the
Charter by forming the PCCR. Petitioner has sustained no direct, or even any
indirect, injury. Neither does he claim that his rights or privileges have been or
are in danger of being violated, nor that he shall be subjected to any penalties or
burdens as a result of the PCCRs activities. Clearly, petitioner has failed to
establish his locus standi so as to enable him to seek judicial redress as a
citizen. chanrobles virtual law library
A taxpayer is deemed to have the standing to raise a constitutional issue when it
is established that public funds have been disbursed in alleged contravention of
the law or the Constitution.[13, Thus payers action is properly brought only when
there is an exercise by Congress of its taxing or spending power.14 This was our
ruling in a recent case wherein petitioners Telecommunications and Broadcast
Attorneys of the Philippines (TELEBAP) and GMA Network, Inc. questioned the
validity of section 92 of B.P. No. 881 (otherwise knows as the Omnibus Election
Code) requiring radio and television stations to give free air time to the
Commission on Elections during the campaign period.[15 The Court held that
petitioner TELEBAP did not have any interest as a taxpayer since the assailed law
did not involve the taxing or spending power of Congress.[16 chanrobles virtual
law library
Many other rulings have premised the grant or denial of standing to taxpayers
upon whether or not the case involved a disbursement of public funds by the
legislature. In Sanidad v. Commission on Elections,[17 the petitioners therein
were allowed to bring a taxpayers suit to question several presidential decrees
promulgated by then President Marcos in his legislative capacity calling for a
national referendum, with the Court explaining that chanrobles virtual law library
...[i]t is now an ancient rule that the valid source of a statute Presidential Decrees
are of such nature may be contested by one who will sustain a direct injury as a
result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such funds. The breadth
of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for
the effective implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. The
interest of the aforenamed petitioners as taxpayers in the lawful expenditure of
these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. chanrobles virtual law
library
In still another case, the Court held that petitioners the Philippine Constitution
Association, Inc., a non-profit civic organization - had standing as taxpayers to
question the constitutionality of Republic Act No. 3836 insofar as it provides for
retirement gratuity and commutation of vacation and sick leaves to Senators and
Representatives and to the elective officials of both houses of Congress.[18 And
in Pascual v. Secretary of Public Works,[19 the Court allowed petitioner to
maintain a taxpayers suit assailing the constitutional soundness of Republic Act
No. 920 appropriating P85,000 for the construction, repair and improvement of
feeder roads within private property. All these cases involved the disbursement
of public funds by means of a law. chanrobles virtual law library
Meanwhile, in Bugnay Construction and Development Corporation v.
Laron,[20 the Court declared that the trial court was wrong in allowing
respondent Ravanzo to bring an action for injunction in his capacity as a taxpayer
in order to question the legality of the contract of lease covering the public
market entered into between the City of Dagupan and petitioner. The Court
declared that Ravanzo did not possess the requisite standing to bring such
taxpayers suit since [o]n its face, and there is no evidence to the contrary, the
lease contract entered into between petitioner and the City shows that no public
funds have been or will be used in the construction of the market
building. chanrobles virtual law library
Coming now to the instant case, it is readily apparent that there is no exercise by
Congress of its taxing or spending power. The PCCR was created by the
President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under section 7 of
E.O. No. 43, the amount of P3 million is appropriated for its operational expenses
to be sourced from the funds of the Office of the President. The relevant
provision states - chanrobles virtual law library
Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is
hereby appropriated for the operational expenses of the Commission to be
sourced from funds of the Office of the President, subject to the usual
accounting and auditing rules and regulations. Additional amounts shall be
released to the Commission upon submission of requirements for
expenditures. chanrobles virtual law library
The appropriations for the PCCR were authorized by the President, not by
Congress. In fact, there was no an appropriation at all. In a strict
sense, appropriation has been defined as nothing more than the legislative
authorization prescribed by the Constitution that money may be paid out of the
Treasury, while appropriation made by law refers to the act of the legislature
setting apart or assigning to a particular use a certain sum to be used in the
payment of debt or dues from the State to its creditors. [21 The funds used for the
PCCR were taken from funds intended for the Office of the President, in the
exercise of the Chief Executives power to transfer funds pursuant to section 25
(5) of article VI of the Constitution. chanrobles virtual law library
In the final analysis, it must be stressed that the Court retains the power to decide
whether or not it will entertain a taxpayers suit.[22 In the case at bar, there being
no exercise by Congress of its taxing or spending power, petitioner cannot be
allowed to question the creation of the PCCR in his capacity as a taxpayer, but
rather, he must establish that he has a personal and substantial interest in the
case and that he has sustained or will sustain direct injury as a result of its
enforcement.[23 In other words, petitioner must show that he is a real party in
interest - that he will stand to be benefited or injured by the judgment or that he
will be entitled to the avails of the suit.24 Nowhere in his pleadings does petitioner
presume to make such a representation.chanrobles virtual law library
II. Presidential Consultants, Advisers, Assistants chanrobles virtual law library
The second issue raised by petitioner concerns the presidential consultants.
Petitioner alleges that in 1995 and 1996, the President created seventy (70)
positions in the Office of the President and appointed to said positions twenty
(20) presidential consultants, twenty-two (22) presidential advisers, and twenty-
eight (28) presidential assistants.[25 Petitioner asserts that, as in the case of the
PCCR, the President does not have the power to create these
positions.26 chanrobles virtual law library
Consistent with the abovementioned discussion on standing, petitioner does not
have the personality to raise this issue before the Court. First of all, he has not
proven that he has sustained or is in danger of sustaining any injury as a result of
the appointment of such presidential advisers. Secondly, petitioner has not
alleged the necessary facts so as to enable the Court to determine if he
possesses a taxpayers interest in this particular issue. Unlike the PCCR which
was created by virtue of an executive order, petitioner does not allege by what
official act, whether it be by means of an executive order, administrative order,
memorandum order, or otherwise, the President attempted to create the positions
of presidential advisers, consultants and assistants. Thus, it is unclear what act
of the President petitioner is assailing. In support of his allegation, petitioner
merely annexed a copy of the Philippine Government Directory (Annex C) listing
the names and positions of such presidential consultants, advisers and
assistants to his petition. However, appointment is obviously not synonymous
with creation. It would be improvident for this Court to entertain this issue given
the insufficient nature of the allegations in the Petition. chanrobles virtual law
library
III. Right to Information chanrobles virtual law library
Finally, petitioner asks us to issue a writ of mandamus ordering Executive
Secretary Ronaldo B. Zamora to answer his letter (Annex D) dated October 4,
1999 requesting for the names of executive officials holding multiple positions in
government, copies of their appointments, and a list of the recipients of luxury
vehicles seized by the Bureau of Customs and turned over to
Malacanang.[27 chanrobles virtual law library
The right to information is enshrined in Section 7 of the Bill of Rights which
provides that chanrobles virtual law library
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law. chanrobles virtual law library
Under both the 197328 and 1987 Constitution, this is a self-executory provision
which can be invoked by any citizen before the courts. This was our ruling
in Legaspi v. Civil Service Commission,[29 wherein the Court classified the right
to information as a public right and when a [m]andamus proceeding involves the
assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen, and therefore, part of the general public
which possesses the right. However, Congress may provide for reasonable
conditions upon the access to information. Such limitations were embodied in
Republic Act No. 6713, otherwise knows as the Code of Conduct and Ethical
Standards for Public Officials and Employees, which took effect on March 25,
1989. This law provides that, in the performance of their duties, all public officials
and employees are obliged to respond to letters sent by the public within fifteen
(15) working days from receipt thereof and to ensure the accessibility of all public
documents for inspection by the public within reasonable working hours, subject
to the reasonable claims of confidentiality.[30 chanrobles virtual law library
Elaborating on the significance of the right to information, the Court said
in Baldoza v. Dimaano[31 that [t]he incorporation of this right in the Constitution
is a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nations
problems, nor a meaningful democratic decisionmaking if they are denied access
to information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. The information to which the
public is entitled to are those concerning matters of public concern, a term which
embrace[s] a broad spectrum of subjects which the public may want to know,
either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for
the courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.[32 chanrobles virtual
law library
Thus, we agree with petitioner that respondent Zamora, in his official capacity as
Executive Secretary, has a constitutional and statutory duty to answer petitioners
letter dealing with matters which are unquestionably of public concern that is,
appointments made to public offices and the utilization of public property. With
regard to petitioners request for copies of the appointment papers of certain
officials, respondent Zamora is obliged to allow the inspection and copying of the
same subject to the reasonable limitations required for the orderly conduct of
official business.33chanrobles virtual law library
WHEREFORE, the petition is dismissed, with the exception that respondent
Zamora is ordered to furnish petitioner with the information
requested. chanrobles virtual law library
SO ORDERED. chanrobles virtual law library
Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Ynares-Santiago, and De Leon,
Jr., JJ., concur. chanrobles virtual law library
Bellosillo, J., abroad, on official business. chanrobles virtual law library
Puno, J., vote to dismiss on the ground that the case is moot.

[ G. R. No.- L-7200, February 11, 1956 ]


JUAN BAUTISTA, PLAINTIFF AND APPELLANT, VS. THE MUNICIPAL COUNCIL OF
MANDALUYONG, RIZAL, ET AL., DEFENDANTS AND APPELLEES.

DECISION
REYES, J.B.L., J.:
Appeal by plaintiff Juan Bautista from an order of the Court of First Instance of Rizal
dismissing his petition in civil case No. 1649.

It appears that on February 19, 1952, plaintiff Bautista filed in the court below against
the Municipal Council and Mayor of the municipality of Mandaluyong, province of
Rizal, the following petition:

1. "Comes NOW petitioner, by and through his undersigned counsel and to this
Honorable Court, most respectively alleges:

2. That petitioner is of legal age and residing at 1067 Int. 1, Dart, Paco, Manila,
and that respondents are the Municipal Council of . Mandaluyohg, Rizal and
Bonifacio Javier, Mayor of the said municipality of Mandaluyong, Bizal,-where
they may both be served with summons;

3. That petitioner is engaged' in guard and watchman business, duly licensed


and doing business, under the firm name 'Allied Investigation Bureau', the
principal office of which is at Manila, Philippines;

4. That on September 22, 1946, the respondent Municipal Council of the


municipality of Mandaluyong, Rizal, passed and promulgated Ordinance No.
13, series of 1946, hereto' attached as Annex "A" and made an integral part
hereof;

5. That a portion of section 3 of the said ordinance is as follows: .

* * * * Provided however, only one Special Watchmen's Agency shall be


granted the exclusive privilege or right to conduct a special watchman's agency
within the territorial Jinyts of this municipality subject to the power of the
Municipal Mayor to revoke their license in view of the reasons provided
elsewhere in this Ordinance.'

6. That said ordinance wasv approved by respondent Bonifacio Javier, as Mayor


of the 'Municipality of Mandaluyon£', Rizal;

7. That the. aforementioned ordinance, is invalid, being1 in viola- tion of the law;

8. That petitioner, being1 engaged and duly licensed in the guard and watchmen
business, has contracted to guard and has in fact guards assigned to watch the
Wack Wack Golf and .County Club at Mandaluyong, Rizal;

9. That his rights as one engaged in Guard and watchmen's business arc affected
by the ordinance aforesaid. Wherefore, it is most respectively prayed of this
Honorable Court, that judgment be rendered declaring the Municipal .Ordinance
No. 13, series of 1946 of the municipality of Mandaluyong, Rizal on September
22, 1946, null and void, it being violative of the law." (Rec. App., pp. 1-3.)
The defendants, represented by the provincial fiscal, moved on March 14, 1952 for the
dismissal of the petition on the ground of lack of a cause of action, or for a bill of
particulars for failure of the petition to specify which particular law was allegedly
violated by the -ordinance in question. The said motion was set for hearing on March
19, 1952. On March 17, plaintiff's counsel filed a written motion to postpone the
hearing of defendants' motion to dismiss or for a bill of particulars, because he was
to appear in a legistration proceeding m Pampanga on the same date. The Court,
however, denied the motion for postponement in its order of March 19, 1952 and, at
the same time, planted defendants' motion to dismiss and ordered the dismissal of
the petition. Plaintiff moved but failed to have the order of dismissal reconsidered,
so he appealed to this court. For some reason or another, the records were sent' to
.the Court of Appeals, which forwarded the case to us for raising only questions of law.

We find no merit in the appeal.

In the first place, the motion was not made with the three days' advance notice
required by the rules (Rule 26), and the lower court had discretion to refuse to hear a
motion on shorter notice.

In the second place, motions for continuance are addressed to the sound discretion of
the trial court, and we can not consider the lower court's denial of appellant's motion to
postpone an abuse of discretion, for as it correctly held, appellant was represented by
the law firm of Macapagal, Punzalan, and Yabut; so the absence of one attorney did
not excuse the failure of another member of the law firm to appear at the date of the
hearing. And even granting that Attorney. Canilao, was sole counsel for appellant, he
had no right to assume that his motion to postpone would be granted (specially on less
than S days' notice) and should have sent a representative at the hearing in his behalf
to argue the merits of his motion for continuance, or else, he could have simply
submitted a written, answer or reply to the motion to dismiss, or even amended his
petition.

In the third place, appellant's petition was correctly dismissed by. the Court below; for
failure'to allege facts sufficient to constitute a cause of action. The rule is that a person
who questions the validity of a statute or law must show that he has sustained, or is in
immediate danger of sustaining, some direct injury as the result of its enforcement
(Custodio vs. President of Senate, (42 OS. Gat. 1243) November 7, 1945; Manila
Race Horse Trainers' Assn. vs. De la Fuente, (88 Phil., 60) January 11, 1951).
Appellant's petition does not show that his interests are, or about to be, adversely
affected or prejudiced by the enforcement of the ordinance which he claims to be
invalid. On the other hand, it appears that he still has a license to engage in the guard
and watchman business, and there is no showing of any threat that his license would be
revoked or cancelled.

The order appealed from is affirmed, without prejudice to appellant's right to file another
complaint alleging a sufficient cause of action. Costs against appellant Juan
Bautista. So ordered.

Parás, C. J., Padilla, Montemayor, Reyes, A., Bautista Angela, Labrador,


Concepcion, and Endencia, JJ., concur.
EN BANC

[G.R. No. 132988. July 19, 2000

AQUILINO Q. PIMENTEL JR.,, Petitioner, v. Hon.ANDER AGUIRRE in his capacity


as Executive Secretary, Hon. EMILIA BONCODIN in her capacity as Secretary of
the Department of Budget and Management, Respondents.

ROBERTO PAGDANGANAN, intervenor.

DECISION

PANGANIBAN, J.:

The Constitution vests the President with the power of supervision, not control,
over local government units (LGUs). Such power enables him to see to it that
LGUs and their officials execute their tasks in accordance with law. While he may
issue advisories and seek their cooperation in solving economic difficulties, he
cannot prevent them from performing their tasks and using available resources to
achieve their goals. He may not withhold or alter any authority or power given
them by the law. Thus, the withholding of a portion of internal revenue allotments
legally due them cannot be directed by administrative fiat.
The Case

Before us is an original Petition for Certiorari and Prohibition seeking (1) to annul
Section 1 of Administrative Order (AO) No. 372, insofar as it requires local
government units to reduce their expenditures by 25 percent of their authorized
regular appropriations for non-personal services; and (2) to enjoin respondents
from implementing Section 4 of the Order, which withholds a portion of their
internal revenue allotments.

On November 17, 1998, Roberto Pagdanganan, through Counsel Alberto C. Agra,


filed a Motion for Intervention/Motion to Admit Petition for
Intervention,[1 attaching thereto his Petition in Intervention2 joining petitioner in
the reliefs sought. At the time, intervenor was the provincial governor of Bulacan,
national president of the League of Provinces of the Philippines and chairman of
the League of Leagues of Local Governments. In a Resolution dated December
15, 1998, the Court noted said Motion and Petition.
The Facts and the Arguments

On December 27, 1997, the President of the Philippines issued AO 372. Its full
text, with emphasis on the assailed provisions, is as follows:

"ADMINISTRATIVE ORDER NO. 372

ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY 1998


WHEREAS, the current economic difficulties brought about by the peso
depreciation requires continued prudence in government fiscal management to
maintain economic stability and sustain the country's growth momentum;

WHEREAS, it is imperative that all government agencies adopt cash management


measures to match expenditures with available resources;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the


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

SECTION 1. All government departments and agencies, including state


universities and colleges, government-owned and controlled corporations and
local governments units will identify and implement measures in FY 1998 that will
reduce total expenditures for the year by at least 25% of authorized regular
appropriations for non-personal services items, along the following suggested
areas:

1. Continued implementation of the streamlining policy on organization and


staffing by deferring action on the following:

a. Operationalization of new agencies;

b. Expansion of organizational units and/or creation of positions;

c. Filling of positions; and

d. Hiring of additional/new consultants, contractual and casual personnel,


regardless of funding source.

2. Suspension of the following activities:

a. Implementation of new capital/infrastructure projects, except those


which have already been contracted out;

b. Acquisition of new equipment and motor vehicles;

c. All foreign travels of government personnel, except those associated


with scholarships and trainings funded by grants;

d. Attendance in conferences abroad where the cost is charged to the


government except those clearly essential to Philippine
commitments in the international field as may be determined by the
Cabinet;

e. Conduct of trainings/workshops/seminars, except those conducted by


government training institutions and agencies in the performance of
their regular functions and those that are funded by grants;

f. Conduct of cultural and social celebrations and sports activities, except


those associated with the Philippine Centennial celebration and
those involving regular competitions/events;

g. Grant of honoraria, except in cases where it constitutes the only source


of compensation from government received by the person
concerned;
h. Publications, media advertisements and related items, except those
required by law or those already being undertaken on a regular
basis;

i. Grant of new/additional benefits to employees, except those expressly


and specifically authorized by law; and

j. Donations, contributions, grants and gifts, except those given by


institutions to victims of calamities.

3. Suspension of all tax expenditure subsidies to all GOCCs and LGUs

4. Reduction in the volume of consumption of fuel, water, office supplies,


electricity and other utilities

5. Deferment of projects that are encountering significant implementation


problems

6. Suspension of all realignment of funds and the use of savings and reserves

SECTION 2. Agencies are given the flexibility to identify the specific sources of
cost-savings, provided the 25% minimum savings under Section 1 is complied
with.

SECTION 3. A report on the estimated savings generated from these measures


shall be submitted to the Office of the President, through the Department of
Budget and Management, on a quarterly basis using the attached format.

SECTION 4. Pending the assessment and evaluation by the Development Budget


Coordinating Committee of the emerging fiscal situation, the amount equivalent
to 10% of the internal revenue allotment to local government units shall be
withheld.

SECTION 5. The Development Budget Coordination Committee shall conduct a


monthly review of the fiscal position of the National Government and if
necessary, shall recommend to the President the imposition of additional
reserves or the lifting of previously imposed reserves.

SECTION 6. This Administrative Order shall take effect January 1, 1998 and shall
remain valid for the entire year unless otherwise lifted.

DONE in the City of Manila, this 27th day of December, in the year of our Lord,
nineteen hundred and ninety-seven."

Subsequently, on December 10, 1998, President Joseph E. Estrada issued AO 43,


amending Section 4 of AO 372, by reducing to five percent (5%) the amount of
internal revenue allotment (IRA) to be withheld from the LGUs.

Petitioner contends that the President, in issuing AO 372, was in effect exercising
the power of control over LGUs. The Constitution vests in the President, however,
only the power of general supervision over LGUs, consistent with the principle of
local autonomy. Petitioner further argues that the directive to withhold ten
percent (10%) of their IRA is in contravention of Section 286 of the Local
Government Code and of Section 6, Article X of the Constitution, providing for
the automatic release to each of these units its share in the national internal
revenue.
The solicitor general, on behalf of the respondents, claims on the other hand that
AO 372 was issued to alleviate the "economic difficulties brought about by the
peso devaluation" and constituted merely an exercise of the President's power of
supervision over LGUs. It allegedly does not violate local fiscal autonomy,
because it merely directs local governments to identify measures that will reduce
their total expenditures for non-personal services by at least 25 percent.
Likewise, the withholding of 10 percent of the LGUs IRA does not violate the
statutory prohibition on the imposition of any lien or holdback on their revenue
shares, because such withholding is "temporary in nature pending the
assessment and evaluation by the Development Coordination Committee of the
emerging fiscal situation."
The Issues

The Petition[3 submits the following issues for the Court's resolution:

"A. Whether or not the president committed grave abuse of discretion [in]
ordering all LGUS to adopt a 25% cost reduction program in violation of the
LGU[']S fiscal autonomy

"B. Whether or not the president committed grave abuse of discretion in ordering
the withholding of 10% of the LGU[']S IRA"

In sum, the main issue is whether (a) Section 1 of AO 372, insofar as it "directs"
LGUs to reduce their expenditures by 25 percent; and (b) Section 4 of the same
issuance, which withholds 10 percent of their internal revenue allotments, are
valid exercises of the President's power of general supervision over local
governments.

Additionally, the Court deliberated on the question whether petitioner had


the locus standi to bring this suit, despite respondents' failure to raise the
issue.[4 However, the intervention of Roberto Pagdanganan has rendered
academic any further discussion on this matter.
The Court's Ruling

The Petition is partly meritorious.


Main Issue:
Validity of AO 372
Insofar as LGUs Are Concerned

Before resolving the main issue, we deem it important and appropriate to define
certain crucial concepts: (1) the scope of the President's power of general
supervision over local governments and (2) the extent of the local governments'
autonomy.
Scope of President's Power of Supervision Over LGUs

Section 4 of Article X of the Constitution confines the President's power over


local governments to one of general supervision. It reads as follows:

"Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. x x x"

This provision has been interpreted to exclude the power of control. In Mondano
v. Silvosa,[5 the Court contrasted the President's power of supervision over local
government officials with that of his power of control over executive officials of
the national government. It was emphasized that the two terms -- supervision and
control -- differed in meaning and extent. The Court distinguished them as
follows:

"x x x In administrative law, supervision means overseeing or the power or


authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer ha[s] done in the performance of his duties and to substitute
the judgment of the former for that of the latter."[6

In Taule v. Santos,7 we further stated that the Chief Executive wielded no more
authority than that of checking whether local governments or their officials were
performing their duties as provided by the fundamental law and by statutes. He
cannot interfere with local governments, so long as they act within the scope of
their authority. "Supervisory power, when contrasted with control, is the power of
mere oversight over an inferior body; it does not include any restraining authority
over such body,"[8 we said.

In a more recent case, Drilon v. Lim,[9 the difference between control and
supervision was further delineated. Officers in control lay down the rules in the
performance or accomplishment of an act. If these rules are not followed, they
may, in their discretion, order the act undone or redone by their subordinates or
even decide to do it themselves. On the other hand, supervision does not cover
such authority. Supervising officials merely see to it that the rules are followed,
but they themselves do not lay down such rules, nor do they have the discretion
to modify or replace them. If the rules are not observed, they may order the work
done or redone, but only to conform to such rules. They may not prescribe their
own manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the


President.[10 The members of the Cabinet and other executive officials are
merely alter egos. As such, they are subject to the power of control of the
President, at whose will and behest they can be removed from office; or their
actions and decisions changed, suspended or reversed.[11 In contrast, the heads
of political subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the Presidents supervision only, not
control, so long as their acts are exercised within the sphere of their legitimate
powers. By the same token, the President may not withhold or alter any authority
or power given them by the Constitution and the law.
Extent of Local Autonomy

Hand in hand with the constitutional restraint on the President's power over local
governments is the state policy of ensuring local autonomy.[12

In Ganzon v. Court of Appeals,[13 we said that local autonomysignified "a more


responsive and accountable local government structure instituted through a
system of decentralization." The grant of autonomy is intended to "break up the
monopoly of the national government over the affairs of local governments, x x x
not x x x to end the relation of partnership and interdependence between the
central administration and local government units x x x." Paradoxically, local
governments are still subject to regulation, however limited, for the purpose of
enhancing self-government.[14
Decentralization simply means the devolution of national administration, not
power, to local governments. Local officials remain accountable to the central
government as the law may provide.[15 The difference between decentralization
of administration and that of power was explained in detail inLimbona v.
Mangelin[16 as follows:

"Now, autonomy is either decentralization of administration or decentralization of


power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the
base of government power and in the process to make local governments 'more
responsive and accountable,'[17 and 'ensure their fullest development as self-
reliant communities and make them more effective partners in the pursuit of
national development and social progress.'[18 At the same time, it relieves the
central government of the burden of managing local affairs and enables it to
concentrate on national concerns. The President exercises 'general
supervision'[19 over them, but only to 'ensure that local affairs are administered
according to law.'[20 He has no control over their acts in the sense that he can
substitute their judgments with his own.[21

Decentralization of power, on the other hand, involves an abdication of political


power in the favor of local government units declared to be autonomous. In that
case, the autonomous government is free to chart its own destiny and shape its
future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to 'self-immolation,'
since in that event, the autonomous government becomes accountable not to the
central authorities but to its constituency."[22

Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including
autonomous regions. Only administrative powers over local affairs are delegated
to political subdivisions. The purpose of the delegation is to make governance
more directly responsive and effective at the local levels. In turn, economic,
political and social development at the smaller political units are expected to
propel social and economic growth and development. But to enable the country
to develop as a whole, the programs and policies effected locally must be
integrated and coordinated towards a common national goal. Thus, policy-setting
for the entire country still lies in the President and Congress. As we stated
in Magtajas v. Pryce Properties Corp., Inc., municipal governments are still
agents of the national government.[23
The Nature of AO 372

Consistent with the foregoing jurisprudential precepts, let us now look into the
nature of AO 372. As its preambular clauses declare, the Order was a "cash
management measure" adopted by the government "to match expenditures with
available resources," which were presumably depleted at the time due to
"economic difficulties brought about by the peso depreciation." Because of a
looming financial crisis, the President deemed it necessary to "direct all
government agencies, state universities and colleges, government-owned and
controlled corporations as well as local governments to reduce their total
expenditures by at least 25 percent along suggested areas mentioned in AO 372.

Under existing law, local government units, in addition to having administrative


autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal
autonomy means that local governments have the power to create their own
sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to allocate their
resources in accordance with their own priorities. It extends to the preparation of
their budgets, and local officials in turn have to work within the constraints
thereof. They are not formulated at the national level and imposed on local
governments, whether they are relevant to local needs and resources or not.
Hence, the necessity of a balancing of viewpoints and the harmonization of
proposals from both local and national officials,[24 who in any case are partners
in the attainment of national goals.

Local fiscal autonomy does not however rule out any manner of national
government intervention by way of supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent with national goals. Significantly,
the President, by constitutional fiat, is the head of the economic and planning
agency of the government,[25 primarily responsible for formulating and
implementing continuing, coordinated and integrated social and economic
policies, plans and programs[26 for the entire country. However, under the
Constitution, the formulation and the implementation of such policies and
programs are subject to "consultations with the appropriate public agencies,
various private sectors, and local government units." The President cannot do so
unilaterally.

Consequently, the Local Government Code provides:[27

"x x x [I]n the event the national government incurs an unmanaged public sector
deficit, the President of the Philippines is hereby authorized, upon the
recommendation of [the] Secretary of Finance, Secretary of the Interior and Local
Government and Secretary of Budget and Management, and subject to
consultation with the presiding officers of both Houses of Congress and the
presidents of the liga, to make the necessary adjustments in the internal revenue
allotment of local government units but in no case shall the allotment be less
than thirty percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year x x x."

There are therefore several requisites before the President may interfere in local
fiscal matters: (1) an unmanaged public sector deficit of the national government;
(2) consultations with the presiding officers of the Senate and the House of
Representatives and the presidents of the various local leagues; and (3) the
corresponding recommendation of the secretaries of the Department of Finance,
Interior and Local Government, and Budget and Management. Furthermore, any
adjustment in the allotment shall in no case be less than thirty percent (30%) of
the collection of national internal revenue taxes of the third fiscal year preceding
the current one.

Petitioner points out that respondents failed to comply with these requisites
before the issuance and the implementation of AO 372. At the very least, they did
not even try to show that the national government was suffering from an
unmanageable public sector deficit. Neither did they claim having conducted
consultations with the different leagues of local governments. Without these
requisites, the President has no authority to adjust, much less to reduce,
unilaterally the LGU's internal revenue allotment.

The solicitor general insists, however, that AO 372 is merely directory and has
been issued by the President consistent with his power of supervision over local
governments. It is intended only to advise all government agencies and
instrumentalities to undertake cost-reduction measures that will help maintain
economic stability in the country, which is facing economic difficulties. Besides,
it does not contain any sanction in case of noncompliance. Being merely an
advisory, therefore, Section 1 of AO 372 is well within the powers of the
President. Since it is not a mandatory imposition, the directive cannot be
characterized as an exercise of the power of control.

While the wordings of Section 1 of AO 372 have a rather commanding tone, and
while we agree with petitioner that the requirements of Section 284 of the Local
Government Code have not been satisfied, we are prepared to accept the solicitor
general's assurance that the directive to "identify and implement measures x x x
that will reduce total expenditures x x x by at least 25% of authorized regular
appropriation" is merely advisory in character, and does not constitute a
mandatory or binding order that interferes with local autonomy. The language
used, while authoritative, does not amount to a command that emanates from a
boss to a subaltern.

Rather, the provision is merely an advisory to prevail upon local executives to


recognize the need for fisestraint in a period of economic difficulty. Indeed, all
concerned would do well to heed the President's call to unity, solidarity and
teamwork to help alleviate the crisis. It is understood, however, that no legal
sanction may be imposed upon LGUs and their officials who do not follow such
advice. It is in this light that we sustain the solicitor general's contention in
regard to Section 1.
Withholding a Part of LGUs' IRA

Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal


autonomy is the automatic release of the shares of LGUs in the national internal
revenue. This is mandated by no less than the Constitution.[28 The Local
Government Code[29 specifies further that the release shall be made directly to
the LGU concerned within five (5) days after every quarter of the year and "shall
not be subject to any lien or holdback that may be imposed by the national
government for whatever purpose."[30 As a rule, the term "shall" is a word of
command that must be given a compulsory meaning.[31 The provision is,
therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998,


of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal situation" in
the country. Such withholding clearly contravenes the Constitution and the law.
Although temporary, it is equivalent to a holdback, which means "something held
back or withheld, often temporarily."[32 Hence, the "temporary" nature of the
retention by the national government does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times


of national crisis, Section 4 thereof has no color of validity at all. The latter
provision effectively encroaches on the fiscal autonomy of local governments.
Concededly, the President was well-intentioned in issuing his Order to withhold
the LGUs IRA, but the rule of law requires that even the best intentions must be
carried out within the parameters of the Constitution and the law. Verily, laudable
purposes must be carried out by legal methods.
Refutation of Justice Kapunan's Dissent

Mr. Justice Santiago M. Kapunan dissents from our Decision on the grounds that,
allegedly, (1) the Petition is premature; (2) AO 372 falls within the powers of the
President as chief fiscal officer; and (3) the withholding of the LGUs IRA is
implied in the President's authority to adjust it in case of an unmanageable public
sector deficit.
First, on prematurity. According to the Dissent, when "the conduct has not yet
occurred and the challenged construction has not yet been adopted by the
agency charged with administering the administrative order, the determination of
the scope and constitutionality of the executive action in advance of its
immediate adverse effect involves too remote and abstract an inquiry for the
proper exercise of judicial function."

This is a rather novel theory -- that people should await the implementing evil to
befall on them before they can question acts that are illegal or unconstitutional.
Be it remembered that the real issue here is whether the Constitution and the law
are contravened by Section 4 of AO 372, not whether they are violated by the acts
implementing it. In the unanimous en banc case Taada v. Angara,33 this Court
held that when an act of the legislative department is seriously alleged to have
infringed the Constitution, settling the controversy becomes the duty of this
Court. By the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy
even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty. Said the Court:

"In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. 'The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld.'34 Once a 'controversy as to the application or
interpretation of a constitutional provision is raised before this Court x x x , it
becomes a legal issue which the Court is bound by constitutional mandate to
decide.'[35

xxx

"As this Court has repeatedly and firmly emphasized in many cases,[36 it will not
shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or
department of the government."

In the same vein, the Court also held in Tatad v. Secretary of the Department of
Energy:[37

"x x x Judicial power includes not only the duty of the courts to settle actual
controversies involving rights which are legally demandable and enforceable, but
also the duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. The courts, as guardians of the Constitution, have
the inherent authority to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where the statute violates
the Constitution, it is not only the right but the duty of the judiciary to declare
such act unconstitutional and void."

By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws, as in the present case, settling the dispute becomes
the duty and the responsibility of the courts.
Besides, the issue that the Petition is premature has not been raised by the
parties; hence it is deemed waived. Considerations of due process really
prevents its use against a party that has not been given sufficient notice of its
presentation, and thus has not been given the opportunity to refute it.[38

Second, on the President's power as chief fiscal officer of the country. Justice
Kapunan posits that Section 4 of AO 372 conforms with the President's role as
chief fiscal officer, who allegedly "is clothed by law with certain powers to ensure
the observance of safeguards and auditing requirements, as well as the legal
prerequisites in the release and use of IRAs, taking into account the
constitutional and statutory mandates."[39 He cites instances when the President
may lawfully intervene in the fiscal affairs of LGUs.

Precisely, such powers referred to in the Dissent have specifically been


authorized by law and have not been challenged as violative of the
Constitution. On the other hand, Section 4 of AO 372, as explained earlier,
contravenes explicit provisions of the Local Government Code (LGC) and the
Constitution. In other words, the acts alluded to in the Dissent are indeed
authorized by law; but, quite the opposite, Section 4 of AO 372 is bereft of any
legal or constitutional basis.

Third, on the President's authority to adjust the IRA of LGUs in case of an


unmanageable public sector deficit. It must be emphasized that in striking down
Section 4 of AO 372, this Court is not ruling out any form of reduction in the IRAs
of LGUs. Indeed, as the President may make necessary adjustments in case of an
unmanageable public sector deficit, as stated in the main part of this Decision,
and in line with Section 284 of the LGC, which Justice Kapunan cites. He,
however, merely glances over a specific requirement in the same provision -- that
such reduction is subject to consultation with the presiding officers of both
Houses of Congress and, more importantly, with the presidents of the leagues of
local governments.

Notably, Justice Kapunan recognizes the need for "interaction between the
national government and the LGUs at the planning level," in order to ensure that
"local development plans x x x hew to national policies and standards." The
problem is that no such interaction or consultation was ever held prior to the
issuance of AO 372. This is why the petitioner and the intervenor (who was a
provincial governor and at the same time president of the League of Provinces of
the Philippines and chairman of the League of Leagues of Local Governments)
have protested and instituted this action. Significantly, respondents do not deny
the lack of consultation.

In addition, Justice Kapunan cites Section 287[40 of the LGC as impliedly


authorizing the President to withhold the IRA of an LGU, pending its compliance
with certain requirements. Even a cursory reading of the provision reveals that it
is totally inapplicable to the issue at bar. It directs LGUs to appropriate in their
annual budgets 20 percent of their respective IRAs for development projects. It
speaks of no positive power granted the President to priorly withhold any
amount. Not at all.

WHEREFORE, the Petition is GRANTED. Respondents and their successors are


hereby permanently PROHIBITEDfrom implementing Administrative Order Nos.
372 and 43, respectively dated December 27, 1997 and December 10, 1998, insofar
as local government units are concerned.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Kapunan, J., see dissenting opinion.

Purisima, and Ynares-Santiago, JJ., join J. Kapunan in his dissenting opinion.


DISSENTING OPINION

KAPUNAN, J.:

In striking down as unconstitutional and illegal Section 4 of Administrative Order


No. 372 ("AO No. 372"), the majority opinion posits that the President exercised
power of control over the local government units ("LGU), which he does not have,
and violated the provisions of Section 6, Article X of the Constitution, which
states:

SEC. 6. Local government units shall have a just share, as determined by law, in
the national taxes which shall be automatically released to them.

and Section 286(a) of the Local Government Code, which provides:

SEC. 286. Automatic Release of Shares. - (a) The share of each local government
unit shall be released, without need of any further action, directly to the
provincial, city, municipal or barangay treasurer, as the case may be, on a
quarterly basis within five (5) days after the end of each quarter, and which shall
not be subject to any lien or holdback that may be imposed by the national
government for whatever purpose.

The share of the LGUs in the national internal revenue taxes is defined in Section
284 of the same Local Government Code, to wit:

SEC. 284. Allotment of Internal Revenue Taxes. - Local government units shall
have a share in the national internal revenue taxes based on the collection of the
third fiscal year preceding the current fiscal year as follows:

(a) On the first year of the effectivity of this Code, thirty percent (30%);

(b) On the second year, thirty-five (35%) percent; and

(c) On the third year and thereafter, forty percent (40%).

Provided, That in the event that the national government incurs an unmanageable
public sector deficit, the President of the Philippines is hereby authorized, upon
the recommendation of Secretary of Finance, Secretary of Interior and Local
Government and Secretary of Budget and Management, and subject to
consultation with the presiding officers of both Houses of Congress and the
presidents of the liga, to make the necessary adjustments in the internal revenue
allotment of local government units but in no case shall the allotment be less
than thirty percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year: Provided, further, That in the
first year of the effectivity of this Code, the local government units shall, in
addition to the thirty percent (30%) internal revenue allotment which shall include
the cost of devolved functions for essential public services, be entitled to receive
the amount equivalent to the cost of devolved personal services.

xxx
The majority opinion takes the view that the withholding of ten percent (10%) of
the internal revenue allotment ("IRA") to the LGUs pending the assessment and
evaluation by the Development Budget Coordinating Committee of the emerging
fiscal situation as called for in Section 4 of AO No. 372 transgresses against the
above-quoted provisions which mandate the "automatic" release of the shares of
the LGUs in the national internal revenue in consonance with local fiscal
autonomy. The pertinent portions of AO No. 372 are reproduced hereunder:
ADMINISTRATIVE ORDER NO. 372

ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY 1998

WHEREAS, the current economic difficulties brought about by the peso


depreciation requires continued prudence in government fiscal management to
maintain economic stability and sustain the countrys growth momentum;

WHEREAS, it is imperative that all government agencies adopt cash management


measures to match expenditures with available resources; NOW THEREFORE, I,
FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby order and direct:

SECTION 1. All government departments and agencies, including x x x local


government units will identify and implement measures in FY 1998 that will
reduce total appropriations for non-personal services items, along the following
suggested areas:

xxx

SECTION 4. Pending the assessment and evaluation by the Development Budget


Coordinating Committee of the emerging fiscal situation the amount equivalent to
10% of the internal revenue allotment to local government units shall be withheld.

xxx

Subsequently, on December 10, 1998, President Joseph E. Estrada issued


Administrative Order No. 43 (AO No. 43), amending Section 4 of AO No. 372, by
reducing to five percent (5%) the IRA to be withheld from the LGUs, thus:
ADMINISTRATIVE ORDER NO. 43

AMENDING ADMINISTRATIVEORDER NO. 372 DATED 27 DECEMBER 1997


ENTITLED "ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY
1998"

WHEREAS, Administrative Order No. 372 dated 27 December 1997 entitled


"Adoption of Economy Measures in Government for FY 1998" was issued to
address the economic difficulties brought about by the peso devaluation in 1997;

WHEREAS, Section 4 of Administrative Order No. 372 provided that the amount
equivalent to 10% of the internal revenue allotment to local government units
shall be withheld; and,

WHEREAS, there is a need to release additional funds to local government units


for vital projects and expenditures.

NOW, THEREFORE, I, JOSEPH EJERCITO ESTRADA, President of the Republic of


the Philippines, by virtue of the powers vested in me by law, do hereby order the
reduction of the withheld Internal Revenue Allotment (IRA) of local government
units from ten percent to five percent.

The five percent reduction in the IRA withheld for 1998 shall be released before 25
December 1998.

DONE in the City of Manila, this 10th day of December, in the year of our Lord,
nineteen hundred and ninety eight.

With all due respect, I beg to disagree with the majority opinion.

Section 4 of AO No. 372 does not present a case ripe for adjudication. The
language of Section 4 does not conclusively show that, on its face, the
constitutional provision on the automatic release of the IRA shares of the LGUs
has been violated. Section 4, as worded, expresses the idea that the withholding
is merely temporary which fact alone would not merit an outright conclusion of
its unconstitutionality, especially in light of the reasonable presumption that
administrative agencies act in conformity with the law and the Constitution.
Where the conduct has not yet occurred and the challenged construction has not
yet been adopted by the agency charged with administering the administrative
order, the determination of the scope and constitutionality of the executive action
in advance of its immediate adverse effect involves too remote and abstract an
inquiry for the proper exercise of judicial function. Petitioners have not shown
that the alleged 5% IRA share of LGUs that was temporarily withheld has not yet
been released, or that the Department of Budget and Management (DBM) has
refused and continues to refuse its release. In view thereof, the Court should not
decide as this case suggests an abstract proposition on constitutional issues.

The President is the chief fiscal officer of the country. He is ultimately


responsible for the collection and distribution of public money:

SECTION 3. Powers and Functions. - The Department of Budget and Management


shall assist the President in the preparation of a national resources and
expenditures budget, preparation, execution and control of the National Budget,
preparation and maintenance of accounting systems essential to the budgetary
process, achievement of more economy and efficiency in the management of
government operations, administration of compensation and position
classification systems, assessment of organizational effectiveness and review
and evaluation of legislative proposals having budgetary or organizational
implications.1

In a larger context, his role as chief fiscal officer is directed towards "the nation's
efforts at economic and social upliftment"2for which more specific economic
powers are delegated. Within statutory limits, the President can, thus, fix "tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the
government,3 as he is also responsible for enlisting the country in international
economic agreements.4 More than this, to achieve "economy and efficiency in the
management of government operations," the President is empowered to create
appropriation reserves,5 suspend expenditure appropriations,6 and institute cost
reduction schemes.7

As chief fiscal officer of the country, the President supervises fiscal development
in the local government units and ensures that laws are faithfully executed.8 For
this reason, he can set aside tax ordinances if he finds them contrary to the Local
Government Code.9 Ordinances cannot contravene statutes and public policy as
declared by the national govemment.10 The goal of local economy is not to "end
the relation of partnership and inter-dependence between the central
administration and local government units,"11 but to make local governments
"more responsive and accountable" [to] "ensure their fullest development as self-
reliant communities and make them more effective partners in the pursuit of
national development and social progress."12

The interaction between the national government and the local government units
is mandatory at the planning level. Local development plans must thus hew to
"national policies and standards13 as these are integrated into the regional
development plans for submission to the National Economic Development
Authority. "14 Local budget plans and goals must also be harmonized, as far as
practicable, with "national development goals and strategies in order to optimize
the utilization of resources and to avoid duplication in the use of fiscal and
physiesources."15

Section 4 of AO No. 372 was issued in the exercise by the President not only of
his power of general supervision, but also in conformity with his role as chief
fiscal officer of the country in the discharge of which he is clothed by law with
certain powers to ensure the observance of safeguards and auditing
requirements, as well as the legal prerequisites in the release and use of IRAs,
taking into account the constitutional16 and statutory17mandates.

However, the phrase "automatic release" of the LGUs' shares does not mean that
the release of the funds is mechanical, spontaneous, self-operating or reflex.
IRAs must first be determined, and the money for their payment collected.18 In
this regard, administrative documentations are also undertaken to ascertain their
availability, limits and extent. The phrase, thus, should be used in the context of
the whole budgetary process and in relation to pertinent laws relating to audit
and accounting requirements. In the workings of the budget for the fiscal year,
appropriations for expenditures are supported by existing funds in the national
coffers and by proposals for revenue raising. The money, therefore, available for
IRA release may not be existing but merely inchoate, or a mere expectation. It is
not infrequent that the Executive Department's proposals for raising revenue in
the form of proposed legislation may not be passed by the legislature. As such,
the release of IRA should not mean release of absolute amounts based merely on
mathematical computations. There must be a prior determination of what exact
amount the local government units are actually entitled in light of the economic
factors which affect the fiscal situation in the country. Foremost of these is
where, due to an unmanageable public sector deficit, the President may make the
necessary adjustments in the IRA of LGUs. Thus, as expressly provided in Article
284 of the Local Government Code:

x x x (I)n the event that the national government incurs an unmanageable


public sector deficit, the President of the Philippines is hereby
authorized, upon the recommendation of Secretary of Finance, Secretary
of Interior and Local Government and Secretary of Budget and
Management and subject to consultation with the presiding officers of
both Houses of Congress and the presidents of the "liga," to make the
necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty
percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year. x x x.
Under the aforecited provision, if facts reveal that the economy has sustained or
will likely sustain such "unmanageable public sector deficit," then the LGUs
cannot assert absolute right of entitlement to the full amount of forty percent
(40%) share in the IRA, because the President is authorized to make an
adjustment and to reduce the amount to not less than thirty percent (30%). It is,
therefore, impractical to immediately release the full amount of the IRAs and
subsequently require the local government units to return at most ten percent
(10%) once the President has ascertained that there exists an unmanageable
public sector deficit.

By necessary implication, the power to make necessary adjustments (including


reduction) in the IRA in case of an unmanageable public sector deficit, includes
the discretion to withhold the IRAs temporarily until such time that the
determination of the actual fiscal situation is made. The test in determining
whether one power is necessarily included in a stated authority is: "The exercise
of a more absolute power necessarily includes the lesser power especially where
it is needed to make the first power effective."19 If the discretion to suspend
temporarily the release of the IRA pending such examination is withheld from the
President, his authority to make the necessary IRA adjustments brought about by
the unmanageable public sector deficit would be emasculated in the midst of
serious economic crisis. In the situation conjured by the majority opinion, the
money would already have been gone even before it is determined that fiscal
crisis is indeed happening.

The majority opinion overstates the requirement in Section 286 of the Local
Government Code that the IRAs "shall not be subject to any lien or holdback that
may be imposed by the national government for whatever purpose" as proof that
no withholding of the release of the IRAs is allowed albeit temporary in nature.

It is worthy to note that this provision does not appear in the Constitution.
Section 6, Art X of the Constitution merely directs that LGUs "shall have a just
share" in the national taxes "as determined by law" and which share shall be
automatically released to them. This means that before the LGUs share is
released, there should be first a determination, which requires a process, of what
is the correct amount as dictated by existing laws. For one, the Implementing
Rules of the Local Government Code allows deductions from the IRAs, to wit:

Article 384. Automatic Release of IRA Shares of LGUs:

xxx

(c) The IRA share of LGUs shall not be subject to any lien or hold back that
may be imposed by the National Government for whatever purpose unless
otherwise provided in the Code or other applicable laws and loan contract on
project agreements arising from foreign loans and international
commitments, such as premium contributions of LGUs to the Government
Service Insurance System and loans contracted by LGUs under foreign-
assisted projects.

Apart from the above, other mandatory deductions are made from the IRAs prior
to their release, such as: (1) total actual cost of devolution and the cost of city-
funded hospitals;20 and (2) compulsory contributions21 and other
remittances.22 It follows, therefore, that the President can withhold portions of
IRAs in order to set-off or compensate legitimately incurred obligations and
remittances of LGUs.

Significantly, Section 286 of the Local Government Code does not make mention
of the exact amount that should be automatically released to the LGUs. The
provision does not mandate that the entire 40% share mentioned in Section 284
shall be released. It merely provides that the "share" of each LGU shall be
released and which "shall not be subject to any lien or holdback that may be
imposed by the national government for whatever purpose." The provision on
automatic release of IRA share should, thus, be read together with Section 284,
including the proviso on adjustment or reduction of IRAs, as well as other
relevant laws. It may happen that the share of the LGUs may amount to the full
forty percent (40%) or the reduced amount of thirty percent (30%) as adjusted
without any law being violated. In other words, all that Section 286 requires is the
automatic release of the amount that the LGUs are rightfully and legally entitled
to, which, as the same section provides, should not be less than thirty percent
(30%) of the collection of the national revenue taxes. So that even if five percent
(5%) or ten percent (10%) is either temporarily or permanently withheld, but the
minimum of thirty percent (30%) allotment for the LGUs is released pursuant to
the President's authority to make the necessary adjustment in the LGUS' share,
there is still full compliance with the requirements of the automatic release of the
LGUs' share.

Finally, the majority insists that the withholding of ten percent (10%) or five
percent (5%) of the IRAs could not have been done pursuant to the power of the
President to adjust or reduce such shares under Section 284 of the Local
Government Code because there was no showing of an unmanageable public
sector deficit by the national government, nor was there evidence that
consultations with the presiding officers of both Houses of Congress and the
presidents of the various leagues had taken place and the corresponding
recommendations of the Secretary of Finance, Secretary of Interior and Local
Government and the Budget Secretary were made.

I beg to differ. The power to determine whether there is an unmanageable public


sector deficit is lodged in the President. The President's determination, as fiscal
manager of the country, of the existence of economic difficulties which could
amount to "unmanageable public sector deficit" should be accorded respect. In
fact, the withholding of the ten percent (10%) of the LGUs' share was further
justified by the current economic difficulties brought about by the peso
depreciation as shown by one of the "WHEREASES" of AO No. 372.23 In the
absence of any showing to the contrary, it is presumed that the President had
made prior consultations with the officials thus mentioned and had acted upon
the recommendations of the Secretaries of Finance, Interior and Local
Government and Budget.24

Therefore, even assuming hypothetically that there was effectively a deduction of


five percent (5%) of the LGUs' share, which was in accordance with the
President's prerogative in view of the pronouncement of the existence of an
unmanageable public sector deficit, the deduction would still be valid in the
absence of any proof that the LGUs' allotment was less than the thirty percent
(30%) limit provided for in Section 284 of the Local Government Code.

In resume, the withholding of the amount equivalent to five percent (5%) of the
IRA to the LGUs was temporary pending determination by the Executive of the
actual share which the LGUs are rightfully entitled to on the basis of the
applicable laws, particularly Section 284 of the Local Government Code,
authorizing the President to make the necessary adjustments in the IRA of LGUs
in the event of an unmanageable public sector deficit. And assuming that the said
five percent (5%) of the IRA pertaining to the 1998 Fiscal Year has been
permanently withheld, there is no showing that the amount actually released to
the LGUs that same year was less than thirty percent (30%) of the national
internal revenue taxes collected, without even considering the proper deductions
allowed by law.

WHEREFORE, I vote to DISMISS the petition.


EN BANC

G.R. No. 141284 August 15, 2000

INTEGRATED BAR OF THE PHILIPPINES, petitioner,


vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B.
AGLIPAY, and GEN. ANGELO REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the "Marines") to join the Philippine National Police (the "PNP") in visibility
patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and
the Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces
of the Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and
Local Government were tasked to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.2 Task Force Tulungan was placed under the leadership of the Police Chief
of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of
the AFP and the PNP Chief.3 In the Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols.4 The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.5 Invoking his powers as Commander-in-Chief under Section 18, Article VII of
the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to
assist the PNP in preventing or suppressing criminal or lawless violence.6 Finally, the
President declared that the services of the Marines in the anti-crime campaign are
merely temporary in nature and for a reasonable period only, until such time when the
situation shall have improved.7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-above
the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro
Manila and to preserve the internal security of the state against insurgents and
other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of


high-profile crimes perpetrated by organized crime syndicates operating in Metro
Manila. This concept requires the military and police to work cohesively and unify
efforts to ensure a focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside from
neutralizing crime syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is achieved. Hand-in-
hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units
are responsible for the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force


"TULUNGAN" shall be organized to provide the mechanism, structure, and
procedures for the integrated planning, coordinating, monitoring and assessing
the security situation.

xxx.8

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa
(SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic Airport.9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS


VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD
JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE


MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON


THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION


IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT
SHOULD REALLY BE UNDER THE CONSTITUTION.10

Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.

Without granting due course to the petition, the Court in a Resolution,11 dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the President
in deploying the Marines, contending, among others, that petitioner has no legal
standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the President’s factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of


standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.12

The IBP has not sufficiently complied with the requisites of standing in this case.

"Legal standing" or locus standi has been defined as a personal and substantial interest
in the case such that the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged.13 The term "interest" means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.14 The gist of the question of
standing is whether a party alleges "such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional
questions."15

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged
that any of its members has been arrested or that their civil liberties have been violated
by the deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed "injury" not personal in character, it is likewise too vague, highly speculative
and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP
has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.16 In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.17 Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure.18 In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order
are under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather
than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion. What the
IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment."19

The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties’ formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues raised.
Thus, while the parties are in agreement that the power exercised by the President is
the power to call out the armed forces, the Court is of the view that the power involved
may be no more than the maintenance of peace and order and promotion of the general
welfare.20 For one, the realities on the ground do not show that there exist a state of
warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In the
words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the President’s powers as protector
of the peace. [Rossiter, The American Presidency]. The power of the President to keep
the peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but
is also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the President’s exercising
as Commander-in-Chief powers short of the calling of the armed forces, or suspending
the privilege of the writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.
xxx21

Nonetheless, even if it is conceded that the power involved is the President’s power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.

We now address the Solicitor General’s argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is


appropriate for court review.22 It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are "political questions." The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.

As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government." Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question."

The 1987 Constitution expands the concept of judicial review by providing that "(T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."25 Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court.27 When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.29 Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion.30A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise
to justiciable controversy.31

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the President’s decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military.
In the performance of this Court’s duty of "purposeful hesitation" 32 before declaring an
act of another branch as unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the President’s judgment. To doubt is to
sustain.

There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power. Section 18, Article VII of the Constitution, which embodies
the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.

xxx

The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:

xxx

Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the President’s
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where the terms
are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.33 That the intent of the Constitution is exactly what its letter
says, i.e., that the power to call is fully discretionary to the President, is extant in the
deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as
may be necessary to suppress lawless violence; then he can suspend the privilege of
the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of
the writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: "The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: "The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion." So we feel that
that is sufficient for handling imminent danger, of invasion or rebellion, instead of
imposing martial law or suspending the writ of habeas corpus, he must necessarily have
to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.34

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

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that "whenever it becomes necessary," the
President may call the armed forces "to prevent or suppress lawless violence, invasion
or rebellion." The implication is that the President is given full discretion and wide
latitude in the exercise of the power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always accessible
to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence


network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President’s exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, "[V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila..."35 We do not doubt the veracity of the President’s assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does
it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of
the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is "militarized" in violation of Section 3, Article II36 of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which sufficiently provides
the metes and bounds of the Marines’ authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures. 38 It is their
responsibility to direct and manage the deployment of the Marines. 39 It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.40 In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the police force. Neither does
it amount to an "insidious incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.41

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no "insidious incursion" of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in
the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms


persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse
to requesting the assistance of the military in the implementation and execution of
certain traditionally "civil" functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:

1. Elections;42

2. Administration of the Philippine National Red Cross;43

3. Relief and rescue operations during calamities and disasters;44

4. Amateur sports promotion and development;45

5. Development of the culture and the arts;46

6. Conservation of natural resources;47

7. Implementation of the agrarian reform program;48

8. Enforcement of customs laws;49

9. Composite civilian-military law enforcement activities;50

10. Conduct of licensure examinations;51

11. Conduct of nationwide tests for elementary and high school students;52

12. Anti-drug enforcement activities;53

13. Sanitary inspections;54

14. Conduct of census work;55

15. Administration of the Civil Aeronautics Board;56

16. Assistance in installation of weather forecasting devices; 57

17. Peace and order policy formulation in local government units. 58

This unquestionably constitutes a gloss on executive power resulting from a systematic,


unbroken, executive practice, long pursued to the knowledge of Congress and, yet,
never before questioned.59 What we have here is mutual support and cooperation
between the military and civilian authorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted,60 and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act61 of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the


Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts63 apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to
the exercise of military power which was regulatory, proscriptive, or
compulsory64 George Washington Law Review, pp. 404-433 (1986), which discusses
the four divergent standards for assessing acceptable involvement of military personnel
in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL
AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief.1âwphi1 A mere threat of
some future injury would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,66 8(k)67 and 9(a)68of Annex A. These soldiers,
second, also have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And
last, these soldiers apply no coercive force. The materials or equipment issued to them,
as shown in No. 8(c)70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.71

It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the President’s determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and
De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-34854 November 20, 1978

FORTUNATO R. PAMIL, petitioner-appellant,


vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of
Bohol, Branch III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees.

Urbano H. Lagunay for petitioner.

Cristeto O. Cimagala for respondents.

FERNANDO, J.:

The novel question raised in this certiorari proceeding concerns the eligibility of an
ecclesiastic to an elective municipal position. Private respondent, Father Margarito R.
Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque,
Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then filed by
petitioner, himself an aspirant for the office, for his disqualification 2 based on this
Administrative Code provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons receiving salaries or
compensation from provincial or national funds, or contractors for public works of the
municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father
Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was
impliedly repealed by the Election Code of 1971. The matter was then elevated to this
Tribunal by petitioner. It is his contention that there was no such implied repeal, that it is
still in full force and effect. Thus was the specific question raised.

There is no clear-cut answer from this Tribunal. After a lengthy and protracted
deliberation, the Court is divided on the issue. Seven members of the Court are of the
view that the judgment should be affirmed as the challenged provision is no longer
operative either because it was superseded by the 1935 Constitution or repealed.
Outside of the writer of this opinion, six other Justices are of this mind They are Justices
Teehankee, Muñoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them,
the overriding principle of the supremacy of the Constitution or, at the very least, the
repeal of such provision bars a reversal. 4 The remaining five members of this Court,
Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other
hand, hold the position that such a prohibition against an ecclesiastic running for
elective office is not tainted with any constitutional infirmity.

The vote is thus indecisive. While five members of the Court constitute a minority, the
vote of the remaining seven does not suffice to render the challenged provision
ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are
concerned, must be accorded respect. The presumption of validity calls for its
application. Under the circumstances, certiorari lies. That is the conclusion arrived at by
the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and
Guerrero. They have no choice then but to vote for the reversal of the lower court
decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of
municipal mayor. With the aforesaid five other members, led by the Chief Justice,
entertaining no doubt as to his lack of eligibility, this petition for certiorari must be
granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of
this opinion sets forth the reasons why there are constitutional objections to the
continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned.

1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it
is now under the present Charter, it is explicitly declared: "No religious test shall be
required for the exercise of civil or political rights." 5 The principle of the paramount
character of the fundamental law 6 thus comes into play. There are previous rulings to
that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer
of this opinion would hold.

2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine
Islands shall continue in force until the inauguration of the Commonwealth of the
Philippines; thereafter, such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the Congress of the
Philippines, and all references in such laws to the government or officials of the
Philippines shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution." 7 It was first applied in People v.
Linsangan, 8 decided in December, 1935, barely a month after that Constitution took
effect. This Court held that Section 2718 of the Revised Administrative Code that would
allow the prosecution of a person who remains delinquent in the payment of cedula
tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad
Santos, after setting forth that the Constitution prohibits the imprisonment for debt or
non-payment of poll tax: 10 "It seems too clear to require demonstration that section
2718 of the Revised Administrative Code is inconsistent with section 1, clause 12, of
Article Ill of the Constitution in that, while the former authorizes imprisonment for non-
payment of the poll or cedula tax, the latter forbids it. It follows that upon the
inauguration of the Government of the Commonwealth, said section 2718 of the
Revised Administrative Code became inoperative, and no judgment of conviction can be
based thereon." 11

De los Santos v. Mallare 12 came next. The President, under the Revised Administrative
Code, could remove at pleasure any of the appointive officials under the Charter of the
City of Baguio. 13 Relying on such a provision, the then President Quirino removed
petitioner De los Santos, who was appointed City Engineer of Baguio on July 16, 1946,
and chose in his place respondent Gil R. Mallare. Why such a power could not pass the
test of validity under the 1935 Constitution was pointed out by Justice Tuason thus: "So,
unlike legislation that is passed in defiance of the Constitution, assertive and menacing,
the questioned part of section 2545 of the Revised Administrative Code does not need a
positive declaration of nullity by the court to put it out of the way. To all intents and
purposes, it is non-existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before the petitioner was appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited
provision of the 1935 Constitution, as authoritatively construed, Article 145 of the
Revised Penal Code was found to be inoperative. As therein provided, the penalty
of prision correccional is imposed on any public officer or employee who, while the
Congress was in regular or special session, would arrest or search a member thereof,
except in case he had committed a crime punishable by a penalty higher than prision
mayor. This Court ruled that the Revised Penal Code extended unduly the legislative
privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then
was contrary to and in defiance of the clear expression of the will of the Constitutional
Convention of 1934 that such immunity was never intended to exempt members of a
legislative body from an arrest for a criminal offense, the phrase treason, felony and
breach of the peace being all-inclusive. Reference was likewise made to the prevailing
American doctrine to that effect as enunciated by Williamson v. United States. 17

3. It would be an unjustified departure from a settled principle of the applicable


construction of the provision on what laws remain operative after 1935 if the plea of
petitioner in this case were to be heeded. The challenged Administrative Code
provision, certainly insofar as it declares ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with the religious freedom guaranteed by
the Constitution. To so exclude them is to impose a religious test. Torcaso v.
Watkins 18 an American Supreme Court decision, has persuasive weight. What was
there involved was the validity of a provision in the Maryland Constitution prescribing
that "no religious test ought ever to be required as a disqualification for any office or
profit or trust in this State, other than a declaration of belief in the existence of God ..."
Such a constitutional requirement was assailed as contrary to the First Amendment of
the United States Constitution by an appointee to the office of notary public in Maryland,
who was refused a commission as he would not declare a belief in God. He failed in the
Maryland Court of Appeals but prevailed in the United States Supreme Court, which
reversed the state court decision. It could not have been otherwise. As emphatically
declared by Justice Black: "this Maryland religious test for public office unconstitutionally
invades the appellant's freedom of belief and religion and therefore cannot be enforced
against him." 19

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith
suffices to disqualify for a public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an express constitutional
mandate. It is not a valid argument against this conclusion to assert that under the
Philippine Autonomy Act of 1916, there was such a prohibition against a religious test,
and yet such a ban on holding a municipal position had not been nullified. It suffices to
answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided
under the 1935 Constitution, it was assumed that there was no conflict with the
fundamental law.

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

5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give
it binding force. The attack on the continuing effectivity of Section 2175 having failed, it
must be, as noted at the outset, given full force and application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and
set aside. Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty
of the municipality of Albuquerque, Bohol, there being a failure to elect. No
pronouncement as to costs.

Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Separate Opinions

CASTRO, C.J., concurring:

While I concur in the result, certain overriding considerations, set forth below, constrain
me to dissent from the opinion penned by Justice Fernando as well as the written
concurrence of Justice Teehankee and Muñoz Palma.

1.

I reject Justice Teehankee's argument that section 2175 of the Administrative


Code 1 has been repealed by section 23 of the Election Code of 1971. 2 Nor can I
accept the conclusion reached by Justice Fernando that the said provision of the
Administrative Code has been superseded or rendered inoperative by the specific
provisions of the 1935 and 1973 Constitutions that forbid the requirement of a religious
test for the exercise of civil or political rights.

The thrust of section 23 of the Election Code of 1971 is simple: what is the effect of the
filing of certificates of candidacy by appointive, elective and other officials of the
government? The said section is therefore of no relevance (except to the extent that it
allows members of the Armed Forces to run for elective positions). Upon the other
hand, section 2175 of the Administrative Code treats of a disparate matter, which is the
absolute disqualification of the classes of persons enumerated therein.
Nor does the proscription contained in the said section 2175 prescribe a
religious test for tile exercise of civil or political rights. I have searchingly analyzed this
provision, and I am unable to infer from it any requirement of a religious test.

On the complementary question of implied repeal, it is a time-honored cardinal rule of


legal hermeneutics that for a later provision of law to be considered as having repealed
a prior provision, there must be such absolute repugnance between the two that the
prior provision must give way. I do not discern any such repugnance.

2.

Since section 2175 of the Administrative Code has not been superseded, and has been
neither expressly nor impliedly repealed in so far as the absolute disqualification of
ecclesiastics is concerned, it is perforce the controlling law in the case at bar. Careful
note must be taken that the absolute disqualification is couched in the most compelling
of negative terms. The law reads: "In no case shall there be elected or appointed to a
municipal office ecclesiastics (emphasis supplied)

Should an ecclesiastic be erroneously allowed by this Court to hold a municipal office,


through the happenstance of a procedural technicality or by the mischief of
circumlocution or otherwise, then the Court would be particeps criminis in the negation
of the unequivocal and imperious mandate of the law. The law admits of no exception;
there can therefore be none. And the Court has no constitutional warrant to legislate
thru any manner of exercise in semantics.

3.

I wish to make of record some grave misgiving about allowing ecclesiastics to be


elected to governmental offices.

Our Lord Jesus Christ preached love, charity, compassion and mercy throughout His
earthly existence — and these four virtues, to my mind, make up His timeless gospel.
Unhappily, however, history has not infrequently been an anguished witness to religious
intolerance and persecution by ecclesiastics, whether they were Catholics or
Protestants.

Adverting to my own personal experience as a practicing Catholic, I still hear, once in a


great while, sermons or homilies by Catholic priests, delivered from the pulpit or from
the altar, declaring that the Catholic way of life is "the way to salvation," thereby
inescapably implying (without explicitly stating) that the adherents of other Christian
sects and other religious faiths may be damned from birth.

It is thus entirely possible that the election of ecclesiastics to municipal offices may
spawn small religious wars instead of promote the general community welfare and
peace - and these religious wars could conceivably burgeon into internecine
dimensions. Where then would we consign Pope John XXIII's ecumenism?

Should the majority of the mayoralties of the Philippines be someday occupied by


militant Catholic ecclesiastics, is it improbable that the next development will be a
determined nationwide campaign by the Catholic Church for the election of ecclesiastics
to our national legislative body? And if this eventuality should come, what then of our
cherished tradition of separation of Church and State? For my part, with history in
perspective, the obvious logical and inevitable consequence is too frightful to
contemplate.

In my view, all ecclesiastics — whoever they are, whatever their faiths, wherever they
may be — should essentially be pastors, immersing themselves around the clock in the
problems of the disadvantaged and the poor. But they cannot be effective pastors if they
do not dissociate themselves completely from every and all bane of politics.

TEEHANKEE, J., dissenting:

I dissent from the judgment reversing and setting aside respondent judge's appealed
resolution of March 4, 1972 which dismissed herein petitioner's petition below of quo
warranto for disqualification of respondent as the duly elected and qualified mayor of
Alburquerque, Bohol in the 1971 elections due to his being allegedly ineligible therefor
as an ecclesiastic and instead entering a new judgment ordering him to vacate the said
office on the ground of "there being a failure to elect."

I. I hold on the sole issue joined by the parties in the court below and in this Court on
appeal that the archaic Revised Administrative Code provision barring ecclesiastic inter
alia from election or reappointment to a municipal office has n repealed by the
provisions of the Election Code of 1971, as correctly ruled earlier by the Commission on
Elections (in denying a separate petition filed by the same petitioner for annulment of
respondent's certificate of candidacy) and by respondent judge in the case at bar.

The sole issue joined in the case at bar by the parties is on the purely legal question of
whether section 2175 of the Revised Administrative Code which bars from election or
appointment to a municipal office "ecclesiastics, soldiers im active service, persons
receiving salaries or compensation from provincial or national funds or contractors for
public work of the municipality" is still im force or has beam repealed by the provisions
of the Election Code of 1971, Particularly section 23 1 thereof which allows "every
person holdimg a public appointive office or position, including active members of the
Armed Forces" to run for any public elective office but provides for their cessation in
office ipso facto excludes eccessiastics and municipal public works contractors from
those declared ineligible or disqualified form funning for an elective office.

This is incontrovertible from the record.

Respondent judge's pre-trial order of January 25, 1972 defining the sole issue of law as
joined and submitted by the parties expressly records that

The parties agreed during this pre-trial conference that the question of
whether or not respondent resigned from the Catholic hierarchy as a priest
is immaterial to the issues raise in the instant resolution by the Court
purely on question of law, that is whether or not the provisions of the
Revised Administrative Code which prohibits ecclesiatics for m running for
municipal elective position. 2

and gave the parties ten days to file their respective memoranda, and declared the case
submitted for resolution upon expiration of the period.

Petitioner sole assingment of error in his applelants brief at bat is "(T)hat the court a
quo erred in ruling that section superseded by the provisions of Republic Act No. 6388,
otherwise known as the Election Code of 1971." 3 And his only argument in support
thereof-insofar as is relevant to this Court's judgement-was as follows:

The repealing clause of the Election Code of 1971 does not mention the
Revised Administrative Code or Section 2175 thereof as among those
expressly repealed. In the absence of inconsistency with any of the
provisions of the Election Code, Sec. 2175 is neither repeal. ed, expressly
or impliedly, nor revoked or superseded by any existing law, and therefore
must continue to stand in full force and effect.

It is the intent of Congress to retain prohibitions of ecclesiastics from


holding municipal office in order to maintain in. violate the great principle
underlying the Philippine Constitution, that is — THE COMPLETE
SEPARATION OF THE CHURCH AND STATE. The preservation of this
principle is precisely the moving spirit of the legislature in passing Sec.
2175 of the Revised Administrative Code and in EXCLUDING
ecclesiastics from the enumeration of persons in Sec. 23 Of the Election
Code of 1971. To allow ecclesiastics to run for a municipal office means
an absolute abandonment of this principle.

For a number of cases, the Supreme Court has disqualified ecclesiastics


from assuming a municipal office. In an Identical case of Pedro Villar vs.
Gaudencio Paraiso, No. L-8014, March 14, 1955; 96 Phil. 659, the
Supreme Court disqualified respondent Gaudencio Paraiso, then a
minister of the United Church of Christ, from the office of Mayor of Rizal,
Nueva Ecija for being an ecclesiastic and therefore ineligible to hold a
municipal office. 4

Now, prior to the filing of the case below, petitioner (who was the incumbent mayor of
Alburquerque, Bohol) had before the 1971 — elections filed a petition with the
Commission on Elections 5 for the annulment of the certificate of candidacy as an
independent candidate (Liberal Party guest candidate) for the elective position of mayor
of the municipality of Alburquerque, Bohol of his lone opponent, herein respondent
Reverend Margarito R. Gonzaga, Catholic parish priest of the municipality of Jagna
Bohol on the ground of the latter's being barred from election to said office as an
ecclesiastic.

The Comelec unanimously denied the petition, ruling that respondent was eligible for
the office since section 2175 of the Revised Administrative Code had been repealed by
force of the M. Mendoza, members.

Election Code of 1971 which in "Section 249 (thereof) expressly repeals R.A. No. 180,
R.A. No. 3588 and all other laws, executive orders, rules and regulations, or parts
thereof, inconsistent with the Code." 6

The Comelec ruled that soldiers in active service and persons receiving salaries or
compensation from provincial or national funds "are obviously now allowed to run for a
public elective office because under Sec. 23 of the Election Code of 1971 6 every
person holding a public appointive office or position, including active members of the
Armed Forces' shall ipso facto cease in their office or position on the date they file their
'certificates of candidacy. 'This implies that they are no longer disqualified from running
for an elective office."

The Comelec further ruled that as to the two remaining categories formerly banned
under the Revised Administrative Code, "ecclesiastics and contractors for public works
of the municipality are allowed to run for municipal elective offices under the
maxim, 'Inclusio unius est exclusio alterius', they being not included in the enumeration
of persons ineligible under the New Election Code. The rule is that all persons
possessing the necessary qualifications,"except those expressly disqualified by the
election code, are eligible to run for public office."

Respondent judge, expressing agreement with the Comelec ruling in that case, held
that respondent is not disqualified nor ineligible to hold the position of mayor of
Alburquerque to which he had been duly elected and proclaimed. Respondent judge
prescinded from the fact that respondent had resigned his position as parish priest of
another town, Jagna and his resignation accepted on September 7, 1971 by the Bishop
of Tagbilaran and that his authority to solemnize marriages had at his request of
September 7, 1971 been cancelled on October 22, 1971 by Director of the National
Library Serafin D. Quiason 7 all before the November, 1971 elections (unlike in Vilar vs.
Paraiso 8 wherein this Court upheld the trial court's refusal to give credence to the
"supposed resignation" of therein respondent as a minister of his church). He bypassed
also the well-taken procedural question that petitioner not having appealed the adverse
Comelec ruling in the earlier case to this Court was bound thereby as the law of the
case and could no longer bring this second action on the same question after his defeat
in the elections.

In my view, the Comelec ruling and respondent court's resolution agreeing therewith
stand on solid ground. As the Comelec stressed in its ruling, the Election Code of 1971
as the applicable law in this case expressly enumerates allthose
declared ineligible or disqualified from candidacy or if elected, from holding office, viz,
nuisance candidates under section 31, those disqualified on account of having been
declared by final decision of a component court or tribunal guilty of terrorism, election
overspending, solicitation or receipt of prohibited contributions or violation of certain
specified provisions of the Code under section 25, or having been likewise declared
disloyal to the constituted government under section 27 or those presidential appointees
who prematurely seek to run for elective office without complying with the compulsory
waiting periods of 150 days (for national office) and 120 days (for any other elective
office) after the termination of their tenure of office under section 78. All other persons
possessing the necessary qualifications and not similarly expressly declared ineligible
or disqualified by the said Election Code, such as ecclesiastics the respondent or
contractors for municipal public works cannot but be deemed eligible for public office.
Thus, ecclesiastics' eligibility for national office has universally been conceded and has
never been questioned.

As already stated above, appointive public office holders and active members of the
Armed Forces are no longer disqualified from running for an elective office, because
section 23 of the 1971 Election Code manifestly allows them to do so and provides that
they" shall ipso facto cease in (their) office or position on the date (they) file (their)
certificate of candidacy." Ecclesiastics and municipal public works contractors are no
longer included in the extensive enumeration of persons ineligible under the said
Election Code. Under the maxim of "Inclusio unius exclusio alterius" and the general
rule that all persons possessed of the necessary qualifications except those expressly
disqualified by the Election Code are eligible to run for public office, the ban against
them in section 2175 of the Revised Administrative Code must be deemed set aside
under the 1971 Election Code's repealing clause.

The wisdom or desirability of the elimination of such prohibitions are of course beyond
the province and jurisdiction of the courts. Aside from such prohibition being at war with
the Constitutional injunction that "no religious test shall be required for the exercise-of
civil or political rights," the Legislators must have considered that there was no longer
any rhyme or reason for the archaic ban against ecclesiastics' election to
a municipal office when there is no such ban against their running for national office and
after all, vox populi est vox Dei. As to the lifting of the ban against municipal public
works contractors, suffice it to state that there are other laws, e.g. the Anti-Graft and
Corrupt Practices Act which if properly enforced should provide more than adequate
safeguards for the public interests.

There is no gainsaying that the Election Code of 1971 is a subsequent comprehensive


legislation governing elections and candidates for public office and its enactment, under
the established rules of statutory construction, "(as) a code upon a given subject matter
contemplates a systematic and complete body of law designed to function within the
bounds of its expressed limitations as the sole regulatory law upon the subject to which
it relates, ... The enactment of a code operates to repeal all prior laws upon the same
subject matter where, because of its comprehensiveness, it inferentially purports to be a
complete treatment of the subject matter. ..." 9

The repeal of the ban is further made manifest in the light of the 250 sections of the
1971 Election Code since "(T)he intent to repeal all former laws upon the subject is
made apparent by the enactment of subsequent comprehensive legislation establishing
elaborate inclusions and exclusions of the persons, things and relationships ordinarily
associated with the subject. Legislation of this sort which operates to revise the entire
subject to which it relates, by its very comprehensiveness gives strong implication of a
legislative intent not only to repeal former statutory law upon the subject, but also to
supersede the common law relating to the same subject." 10

As a pure question of law, on the sole issue joined by the parties, therefore, I hold that
the ban in section 217 of the Administrative Code against the election of ecclesiastics
(and the three other categories therein mentioned) to a municipal office has been
repealed by the provisions of the Election Code of 1971, which nowhere in its all-
embracing and comprehensive text mentions-ecclesiastics (as well as the three other
categories in the aforesaid Administrative Code provision) as among those ineligible or
disqualified to run for public office (national or local).

II. On the constitutional dimension given motu proprio to the case in the main opinion of
Mr. Justice Fernando, by way of "Constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned" 11 , I concur with the
main opinion, concurred in by five other members of the Court, viz, Justices Munoz
Palma, Concepcion Jr., Santos, Fernandez and Guerrero that the archaic Administrative
Code provision declaring ecclesiastics ineligible for election or appointment to a
municipal office is inconsistent with and violative of the religious freedom guaranteed b
the 1935 Constitution 12 and that to so bar them from office is to impose a religious test
in violation of the Constitutional mandate that "No religious test shall be required for the
exercise of civil or political rights."

Both the 1935 Constitution (which is applicable to the case at bar) and the 1973
Constitution guarantee in practically Identical terms the fullest religious freedom. To
assure that there is no impediment to the fullest exercise of one's religious freedom, the
Constitution prohibits that there be a state established union and thereby decrees that
there must be separation of church and state. (The 1973 Constitution redundantly
stresses in its General Provisions, Article XV, section 15 that "(T)he separation of
church and state shall be inviolable."). The free exercise of one's religion and freedom
of expression of religious doctrines and beliefs (positive as well as negative) and the
freedom to perform religious rites and practices are guaranteed by the Constitution's
mandate that "no law shall be made ... prohibiting the free exercise (of religion)" and
that "the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed." In order to assure the fullest
freedom of the individual in this regard and to prevent that the State negate or dilute
religious freedom by according preference to one religious organization as against
others, the Constitution finally commands that "no religious test shall be required for the
exercise of civil or political rights."

It is conceded that the non-religious test clause constitutionally bars the state from
disqualifying a non-believer, an atheist or an agnostic from voting or being voted for a
public office for it is tantamount to a religious test and compelling them to profess a
belief in God and a religion. By the same token, the same clause is equally applicable to
those at the opposite end, let us call them the full believers who in their love of
God and their fellowmen have taken up the ministry of their church or the robe of the
priest: to disqualify them from being voted for and elected to a municipal office (under
the questioned Administrative Code provision) is to exact a religious test for the
exercise of their political rights for it amounts to compelling them to shed off their
religious ministry or robe for the exercise of their political right to run for public office.

Stated in modern context, the Satanist is concededly not disqualified under the
questioned Administrative Code provision from election to municipal office. To enforce
the same statute's disqualification against ecclesiastics is to wrongfully invade the
ecclesiastic's freedom of belief and religion and to impose upon him a religious test in
flagrant violation of the Constitution. In contrast to the Satanist who is not subjected to a
religious test and disqualified for his picking up Satan's robe against God, the
ecclesiastic is disqualified for professing the profoundent religious belief in God and
wearing His cross on his lapel — he is to be barred simply because he is an
ecclesiastic.

I hold, therefore, that aside from the strictly legal question presented by the parties and
correctly resolved by the Comelec in the earlier case and by the lower court in the case
at bar, to wit, that the ban in section 2175 of the Revised Administrative Code against
the election of ecclesiastics (among others) to a municipal office has been repealed by
the 1971 Election Code, it is also correct to declare by way of obiter dictum (since it has
not been raised or placed in issue in the case at bar) as the main opinion principally
holds, that this archaic provision of the Administrative Code of 1917 must also be
deemed as no longer operative by force of the constitutional mandate that all laws
inconsistent with and violative of the Constitution shall cease to be in force. 13

The main thrust of the five separate concurrences for upholding the questioned ban of
ecclesiastics from public (municipal office) is the fear of "religious intolerance and
persecution by ecclesiastics" and the "oppression, abuses, misery, immorality and
stagnation" wreaked by the friars during the Spanish regime. But it is not appreciated
therein that this was due to the union of the State and the Church then — a situation
that has long ceased since before the turn of the century and is now categorically
proscribed by the Constitution. As His Eminence, Jaime L. Cardinal Sin, recently
observed:

Union of the Church and the State invariably ends in the Church being
absorbed, manipulated or dominated by the State, or in the State being
dominated by the Church. Usually, it is the former eventuality that takes
place, for the Church possess no armed or coercive power comparable to
what the State has.

At the beginning of her history, the Church invested the kings of recently
converted countries with the office and title of Protectors of the Church.
This was all-right so long as the kings were good and holy men, like St.
Stephen of Hungary, or at least reasonable decent men, like Charlemagne
of France. but saintly and decent men are often succeeded by scoundrels
and the protectors - in the wry observation of the King of Slam wound up
'protecting the Church out of everything that she possessed.

When, in some rare instances, it is the Church that dominates the State,
the result is what we know as clericalism.

Both alternatives, it is obvious, are undesirable. When the Church is


dominated by the State, she becomes a tool for the furtherance of wordly
aims. And when the State is dominated by the Church, then the Church
tends to get confused as to her nature, Identity, role and sion The Church,
after an, is a supernatural society. Consequently, she is weakened when
she places her reliance on temporal power and resources rather than on
the grace of Almighty God. Clericalism provokes the natural reaction of
separation, by which is meant the isolation and strict confinement of the
Church to the sacristy. It is the placing the Church under house arrest. 14

Historians have noted that with the imposition of the separation of state and church by
the American regime, "(T)he Catholic Church, however, derived under the principle of
separation of Church and State positive benefits and advantages. Her freedom was
greatly enhanced. She was no longer subject to the various forms of supervision and
control imposed upon her during the Spanish regime. She was freed from government
intervention in the making of appointments to positions in the ecclesiastical system, in
the creation of parishes and in the establishment of institutions of religious character." 15

The Spanish era of "religious intolerance and oppression" and the new era of separation
of state and church easily led to the passage of the ban against ecclesiastics. There
was deep prejudice and resentment against the Spanish friars which rubbed off on the
Filipino Catholic parish priests. Catholics and the new religious groups of Aglipayans
and Protestants were reported to have harbored great mistrust of each other and fear
that one group would very likely use political power as an instrument for religious
domination over the others.

But it cannot be denied that the situation has radically changed since then. Specially
after Vatican 11 in 1965, the spirit of ecumenism, mutual respect, and cooperation have
marked the relations between Catholics, Protestants, Aglipayans, Iglesia ni Kristo and
other religious denominations.

For Catholics, the Vatican synod declared: "that the human person has a right to
religious freedom. This freedom means that all men are to be immune from coercion on
the part of the individuals or of social groups and of any human power, in such wise that
in matters religious no one is to be forced to act in a manner contrary to his own beliefs.
Nor is anyone to be restrained from acting in accordance with his own beliefs, whether
privately or publicly, whether alone or in association with others, within limits. 16

Vatican II also declared that "Cooperation among all Christians vividly expresses that
bond which already unites them ... It should contribute to a just appreciation of the
dignity of the human person, the promotion of the blessings of peace, the application of
Gospel principles to social life, the advancement of the arts and sciences in a Christian
spirit. Christians should also work together in the use of every possible means to relieve
the afflictions of our times, such as famine and natural disasters, illiteracy and poverty,
lack of housing and the unequal distribution of wealth. Through such cooperation, all
believers in Christ are able to learn easily how they can understand each other better
and esteem each other more, and how the road to the unity of Christians may be made
smooth.17

If the friars then grabbed the so-called friar lands through oppressive exploitation of the
masses, the priests of todayhave taken up the cudgels for the masses and are at the
forefront of their struggle for social justice and a just society.

The days are long gone when the Priest is supposed to confine himself to the sacristy
and devote himself solely to spiritual, not temporal, matters. Where the State fails of
falters, the priest must needs help minister to this temporal power has resulted from
their adjusting themselves to tile realities and imperatives of the present day world.

As already indicated above, it is to be noted that the only statutory prohibition was to
ban ecclesiastics from appointment or election to municipal office. There is no ban
whatsoever against their election to or holding of national office, which by its nature and
scope is politically more significant and powerful compared to a local office.
The national experience with ecclesiastics who have been elected to national offices
has shown that contrary to the unfounded fears of religious prejudice and narrow-
mindedness expressed in some of the concurring opinions, they have discharged their
task with great competence and honor, since there is basically no incompatibility
between their religious and lay offices, as witness the elections and participation of
Msgr. Gregorio Aglipay as delegate to the Malolos Congress of 1898, Minister Enrique
Sobrepena and Philippine Independent Church Bishop Servando Castro as delegates to
the 1934-1935 Constitutional Convention, Frs. Pacifico Ortiz and Jorge Kintanar and
three other priests as delegates to the 1971 Constitutional Convention. and again Fr.
Jorge Kintanar as member of the current Interim Batasang Pambansa.

As far as local offices are concerned, the best proof of the Filipino ecclesiastic's
capacity to discharge his political office competently and with detachment from his
religious ministry or priesthood is the very case of respondent Fr. Gonzaga, who as far
as the record shows has efficiently discharged the role of mayor of Alburquerque since
his assumption of office on January 1, 1972 up to the present to the satisfaction of his
constituents and without any complaints. The question of whether a priest or cleric
should exercise his political right of seeking public office, national or local, is after all
best left to the decision of his church and his own judgment. After all, it is to be
presumed that no responsible person would seek public office knowing that his
ecclesiastical duties would be a hindrance to his rendering just and efficient public
service. Here, respondent after his decision to run for election in his hometown of
Alburquerque, duly resigned his position of parish priest in another town, that of Jagna
Bohol long before the holding of the election. The main thing is that the Constitutional
mandate of no religious test for the exercise of one's civil or political rights must be
respected. The ecclesiastic is free to seek public office and place his personal merits
and qualifications for public service before the electorate who in the ultimate analysis
will pass judgment upon him.

Father Jose Burgos of the famed Gomburza martyrs took up in his manifesto of 1864
the battle of the native clergy against the Spanish friars who had found their parishes to
be lucrative positions and refused to give them up to the Filipino seculars who were
increasing in number and improving in caliber. He boldly accused the friars of
"enrichment, greed and immorality" and they marked him as their greatest enemy.

As the historians now assess it, "Indeed, whether or not Father Burgos meant it, his
manifesto of 1864 galvanized and fused the scattered and isolated areas of discontent
in the land, so that Filipino nationalism which had its birth pangs in Mactan finally
emerged full-grown. The travail of the Filipino clergy served to galvanize Filipino
nationalism, existing since Lapulapu in unintegrated and undeveloped form from
Tuguegarao to Taglibi from Sulu to Sarrat and Sagada. As in Spain itself, nationalism in
the Philippines needed an infusion of liberalism before it could acquire content and
direction. And, perhaps without meaning to do so, it was the peculiar contribution of
the Filipino clergy,much respected and most influential among the people, to give
substance and meaning to their fellow Filipinos' love of freedom and country. 18

Thus, "the dispute between secular and regular clergy over the parishes......... became a
nationalist movement, which joined forces with the lay reformists who had come into the
open ..." and "(T)he new movement blew like a wind of change through every level and
layer of society except the impregnable ranks of the friars. Then, suddenly, it became a
whirlwind that sucked three pious secular priests into its vortex For the Cavite Mutiny of
1872 exploded and they were accused of complicity, court-martialed and garroted. 19

It was our national hero, Dr. Jose Rizal, who "captured the historic galvanizing mission
which the martyr priests accomplished for their people and country, as well as the
cruelty and inhumanity of the revenge in the guise of justice inflicted upon them, when in
1891 he dedicated his second novel El Filibusterismo [Subversion] 20 to the three martyr
priests in the following words: ['The Church, by refusing to unfrock you, has put in doubt
the crime charged against you; the Government by enshrouding your trial in mystery
and pardoning your coaccused has implied that some mistake was committed when
your fate was decided; and the whole of the Philippines in paying homage to your
memory and calling you martyrs totally rejects your guilt.']" 21

It would indeed be an ironic twist of history if the martyrdom of Frs. Burgos, Gomez and
Zamora in the defense of freedom and the dignity and rights of the Filipino clergy which
galvanized Filipino nationalism and eventually overthrew the Spanish regime were to be
set at naught and the Filipino ecclesiastics were to remain banned from seeking public
office to serve their fellowmen, because the spectre of the friars who abused and
maltreated the people continues to haunt us and we would now visit their sins upon our
own clergy.

III. The disposition of the case and judgment granting quo warranto - notwithstanding
that there stand seven votes for affirming respondent judge's dismissal of
the quo warranto, namely, Justices Fernando, Teehankee, Muñoz Palma, Concepcion
Jr., Santos, Fernandez and Guerrero, on the ground that the questioned provision
barring ecclesiastics from municipal office has been superseded and rendered
inoperative by the no-religious test clause of the Constitution and by the Election Code
of 1971 and only five votes for upholding as in full force and effect the questioned ban
on ecclesiastics, namely, the Chief Justice and Justices Barredo, Makasiar, Antonio and
Aquino is contrary to the Rule of Court providing that where the Court in banc is equally
divided in opinion and no decision by eight Justices is reached (as required by Article X,
section 2 [2] of the 1973 Constitution for the pronouncement of a judgment) the
appealed judgment or order shall stand affirmed. Since the lower court dismissed
the quo warrantopetition and allowed respondent to remain in office, such dismissal
should stand affirmed, rather than the judgment now rendered granting the quo
warranto petition and ordering respondent to vacate the office.

As stated in the main opinion, seven Justices are for affirmance of the appealed
judgment "as the challenged provision is no longer operative either because it was
superseded by the 1935 Constitution or repealed" while five Justices hold that "such a
prohibition against an ecclesiastic running for elective office is not tainted with any
constitutional infirmity." 22 The writer of the main opinion, however, joined by four others
[namely, Justices Concepcion Jr., Santos, Fernandez and Guerrero] invoke the legal
principle that "the presumption of validity [of a law] calls for its application" and therefore
have voted with the minority of five [namely, the Chief Justice and Justices Barredo,
Makasiar, Antonio and Aquino] to reverse and set aside the judgment a quo and to
order that "respondent Gonzaga ... immediately ... vacate the mayoralty of the
municipality of Alburquerque, Bohol, there being a failure to elect. 23

As a preliminary observation, it should be noted that the judgment or dispositive portion


of the main opinion ordering respondent Gonzaga to vacate his office "there being a
failure to elect", is not correct, since said respondent was duly elected and
proclaimed after his candidacy and qualification for the office had been precisely upheld
before the holding of the 1971 elections by the Commission on Elections which
dismissed the same herein petitioner's petition with it to annul respondent's certificate of
candidacy, on exactly the same ground as here, based on section 2175 of the
Administrative Code, which dismissal was not appealed by petitioner and is therefore
the law of the case.

Be that as it may, the question confronting the Court is what is the applicable law in a
case like this where there is an inconclusive or indecisive vote of seven to five for
affirming the appealed judgment?
To begin with, the applicable law is not the Constitutional provision which requires a
qualified vote of at least ten members of this Court to declare unconstitutional a law,
treaty or executive agreement. 24 In Such constitutional cases, failure to reach the
qualified vote of ten members results in a declaration that the constitutionality of the
questioned law is deemed upheld. Concededly, the present action is not one to declare
unconstitutional the questioned provision banning ecclesiastics from municipal office.
The action was filed by petitioner precisely invoking the law's ban in order to disqualify
respondent. The lower court merely sided with the Comelec's ruling in an earlier case
filed by petitioner for the same purpose of disqualifying respondent, and dismissed the
case below upholding respondent's defense that the law had been repealed by the 1971
Election Code. This was the sole issue both before the lower court and this Court.

As shown hereinabove, the sole issue joined by the parties in the court below and in this
Court on appeal was whether or not the questioned provision banning ecclesiastics from
municipal office has been repealed or not by the 1971 Election Code. Concededly, a
minimum of eight votes as required by the Constitution for the pronouncement of a
judgment is needed to declare that the same has been repealed under this sole issue,
or superseded or rendered inoperative by virtue of the 1935 Constitutional provisions
guaranteeing freedom of religion and prohibiting religious tests for the exercise of civil
and political rights under the supplementary issue of repeal by force of the Constitution
raised motu proprio in the main opinion. 25

The applicable law, then, in non-constitutional cases such as that at bar is found in Rule
56, section 11 of the Rules of Court, which was designed specifically to cover such
cases where the necessary majority of a minimum eight votes "for the pronouncement
of a judgment, 26 cannot be had and provides that the appealed judgment shall stand
affirmed.

The appealed judgment in the case at bar dismissing the quo warranto action
must stand affirmed under the cited Rule which provides that:

SEC. 11. Procedure if opinion is equally divided. — Where the court in


banc is equally divided in opinion, or the necessary majority cannot be
had, the case shall be reheard, and if on re- hearing no decision is
reached, the action shall be dismissed if originally commenced in the
court; in appealed cases, the judgment or order appealed from shall stand
affirmed and on all incidental matters, the petition or motion shall be
denied. (Rule 56)

As restated in Moran's Comments, "(I)n appealed cases, the above provision states that
the judgment or order appealed from shall stand affirmed. This refers to civil cases, the
rule in criminal cases being that provided by section 3 of Rule 125, which states that in
such cases the judgment of conviction of the lower court shall be reversed and the
defendant acquitted. If the judgment appealed from declares a law or a treaty
unconstitutional, or imposes death penalty and the concurrence of at least eight [now
ten Justices cannot be had, the Supreme Court shall so declare, and in such case the
validity or constitutionality of the act or treaty involved shall be deemed upheld, or the
penalty next lower to death shall be imposed." 27

Apparently, the five members of the Court headed by the writer of the main opinion
found themselves in a conflict between the principle of presumption of validity of a law
which normally calls for its implementation by the executive department - until declared
invalid by the courts and their view that the challenged legal provision barring
ecclesiastics from municipal office is no longer operative either because it has been
superseded by the Constitution or repealed by the 1971 Election Code. In such case, it
is submitted with all due respect that they erred in joining votes with the minority of five
opining to the contrary, for the cited Rule expressly provides that in such a case of
a split Court with neither side obtaining the necessary number of votes for the
pronouncement of a judgment upholding their conflicting views, the appealed judgment
shall stand affirmed.

For the appealed judgment to stand affirmed does not mean that "the Court would
be particeps criminis in the negation of the unequivocal and imperious mandate of the
law." 28 It would simply be the law of the case, because of the inconclusive vote. It is just
the same as if petitioner had not appealed or if his appeal had been dismissed for
failure to prosecute the same.

If the lower court had ruled in favor of petitioner and respondent were the appellant, the
appealed judgment (against respondent in this example) would stand affirmed, despite
the seven votes in his favor. But the vote would be inconclusive just the same. The
issue of whether or not the challenged law is deemed superseded by the Constitution or
repealed by the 1971 Election Code would have to be left for another case and another
time.

Put in another way, even assuming that the lower court erred in adjudging that the
questioned law has been repealed, under the cited and applicable Rule, this Court
would need 8 votes to overturn such judgment, just as it would need the same number
of votes for this Court to overturn the judgment if it had been the other way around. This
is the necessary consequence in cases where this Court cannot arrive at a majority one
way or the other.

The same situation has happened more frequently in appeals from criminal convictions
by the lower courts wherein the applicable rule is the reverse, with Rule 125, section 3
providing that where the necessary majority of eight votes for affirming the judgment of
conviction or acquitting the accused cannot be had, "the judgment of conviction of the
lower court shall be reversed and the defendant acquitted. 29

The provisions of the Penal Code and Statutes are generally absolute provisions
against the commission of the criminal acts therein defined. But the failure of the Court
to obtain the necessary majority of eight votes (in non-capital cases) for
the pronouncement of a judgment affirming the conviction (and resulting in the acquittal
of the accused) does not connote in any manner that this Court has thereby become
a particeps criminis in the violation of the criminal law. Neither does it mean that the
Court has thereby rendered the penal statute void or ineffectual with the accused's
acquittal in the specific criminal case. To cite an example, in the case of Ramirez vs.
Court of Appeals, 71 SCRA 231 (June 10, 1976), the accused was therein acquitted of
the crime of falsification on a 4 to 5 vote (out of 11 Justices with 2 abstentions), but it
cannot be said that the prevailing opinion thereby obliterated the crime of falsification
under Art. 172 of the Revised Penal Code simply because of the alleged repeal of CB
Circular 20 by CB Circular 133 which served as the main reason for dividing the Court in
the case.

If the majority were to follow the same approach in these criminal cases where there is
a similar division of the Court as to whether a particular penal statute or provision has
been repealed or rendered inoperative and the necessary majority cannot be had, as in
the cited case of Ramirez, supra - then even those who vote for acquittal (as those who
voted for declaring the questioned law inoperative) must cross over and join those
voting contrarily for affirmance of conviction in order to uphold the principle applied
herein by the majority that "the presumption of validity [of a law] calls for its application"
— in violation of the cited Rules governing a divided Court's failure to reach the
necessary majority.

In closing, it should be borne in mind that petitioner's action to disqualify respondent and
to be proclaimed as Alburquerque Bohol mayor in his stead is an exercise in futility
because (a) the office's term has long expired and (b) more importantly, even if the term
may be deemed as not having expired, this Court has consistently held that a petitioner
in such disqualification proceedings cannot be proclaimed as elected to the office (in
lieu of a disqualified respondent) which is the only thing that petitioner has vainly sought
herein — to be proclaimed and seated as mayor vice the respondent who defeated him
in the election. As held in Vilar vs. Paraiso, supra: 30 "(A)s to the question whether,
respondent being ineligible, petitioner can be declared elected, having obtained second
place in the elections, our answer is simple: this Court has already declared that this
cannot be done in the absence of an express provision authorizing such declaration.
Our law not only does not contain any such provision but apparently seems to prohibit
it,"

BARREDO, J., concurring:

My vote is to grant the petition and to declare respondent Rev. Fr. Margarito R.
Gonzaga disqualified under Section 2175 of the Revised Administrative Code from
being mayor of Alburquerque Bohol, which position he has assumed by virtue of his
winning in the local elections held in 1971, for which reason he should be ordered to
vacate the same. I would, however, limit the grounds for my vote to the considerations
hereinunder stated, for it is not the danger of any form or degree of church control of
state affairs that I perceive in allowing an ecclesiastic to be elected as mayor, the
occurrence of such a contingency being probably quite remote now with the character of
the Filipino clergy who are a far cry from the friars during the Spanish times. I just
cannot imagine how a duly ordained minister of God whose sacred life mission is
supposed to be to serve God and to advance and defend the interests of His church
above all other interests can properly act as a government official committed to enforce
state policies which may conflict with the fundamental tenets of that church.

I agree with the Chief Justice and Justice Makasiar that the trial court's ruling, following
that of the Commission on Elections, to the effect that Section 2175 of the Revised
Administrative Code has been repealed by Section 23 of the Election Code of 1971 is
not legally correct. More than merely declaring ecclesiastics ineligible to a municipal
office, the Administrative Code provisions enjoins in the most unequivocal terms their
incapacity to hold such office whether by election or appointment. Indeed, the word
"ineligible" in the title of the section is inappropriate. If said Election Code provision has
any incompatibility with the above-mentioned Administrative Code provision, it is only by
implication and only insofar as members of the Armed Forces of the Philippines are
concerned, in the sense that said army men are now allowed to run for election to
municipal offices provided that they shall be deemed to automatically cease in their
army positions upon the filing of their respective certificates of candidacy. Section 23
does not define who are qualified to be candidates for public elective positions, nor who
are disqualified. It merely states what is the effect of the filing of certificates of
candidacy by those referred to therein, which do not include ecclesiastics Thus, the
inconsistency contemplated in Section 249 of the Code as productive of repealing effect
does not exist in the case of Section 23 thereof vis-a-vis Section 2175 of the Revised
Administrative Code.

Accordingly, the only way respondent Fr. Gonzaga can legally hold to the mayorship he
is occupying, is for Section 2175 to be declared as violative of the constitutional
injunction in Section 1 (7) of the 1935 Constitution of the Philippines which was in force
in 1971 that "No religious test shall be required for the exercise of civil or political rights"
as contended by him. On this score, it is my considered view that there is no
repugnancy at all between Section 2175, on the one hand, and the freedom of religion
provision of the Old Constitution, which, incidentally, is reproduced textually in the New
Charter, and the principle of separation of church and state, on the other.
The "no religious test" provision is founded on the long cherished principle of separation
of church and state which the framers of our 1973 Constitution opted to include as an
express provision in the fundamental law by ordaining that such separation "shall be
inviolable" (Art. XV, Sec. 15), not as a redundancy but in order to comprehend situations
which may not be covered by the provisions on religious freedom in the Bill of Rights.
(Art. IV, Sec. 8.) It simply means that no public office may be denied to any person, by
reason of his religious belief, including his non-belief. Whether he believes in God or
not, or, believing in God, he expresses and manifests his belief in one way or another,
does not disqualify him. But when he becomes a religious or an ecclesiastic he
becomes one who does not merely belong to his church, congregation or denomination
or one who entertains his own religious belief; he becomes the official minister of his
church with distinct duties and responsibilities which may not always be compatible with
the posture of absolute indifference and impartiality to all religious beliefs which the
government and all its officials must maintain at all times, on all occasions and in every
aspect of human life and individual endeavor precisely because of the separation of
church and state and the full enjoyment of religious freedom by everyone. There is no
known safeguard against witting or unwitting, patent or latent discrimination that a
religious may lapse into when confronted with a situation where opposing religious
interests maybe involved. And yet, it is in such a predicament that paramount public
interest would demand that he should neither hesitate nor equivocate. Having in mind
the imperfection of all human beings, I cannot believe that any religious, found in such
unenviable situation would be able to successfully acquit himself from all suspicion of
concealed interest in favor of his own church. What is worse, any attempt on his part to
look the other way just to avoid such suspicion of partiality might only result in more
impropriety or injustice. Indeed, as I see it, even the day of perfect and sincere
ecumenism is not yet here.

It is already a matter of deep anxiety for everyone in any political unit concerned that a
devout Catholic or Protestant or Muslim layman holding a public office therein may find
it extremely difficult, if not impossible, to dissociate his religious thinking from his
judgment or motivations as he acts in the performance of his duties. Certainly, it would
be a graver problem if the official should happen to be a religious minister, since his
graver responsibility to his church in the premises could imaginably outweigh in his
decision process the demands of the general public interest. As a simple matter of good
government principle, the possibility of such an undesirable contingency must be
avoided. To my mind, it is just as objectionable for an official of the civil government to
try to take part in running any religious denomination or order, as it is for a religious to
involve himself in the running of the affairs of government as an official thereof. The
observations of Justice Teehankee anent some religious leaders named by him who
have occupied positions in the national government either as delegates to the
Constitutional Conventions of 1934 and 1971 or as members of the national legislature
are, I regret to say, misplaced. Apart from the fact that they were too few to decisively
impress the inalienable religious principles of their respective churches on the ultimate
decisions of the conventions or the legislative bodies where they sat regarding matters
in which said churches were interested, one has to be utterly naive to expect that Father
Kintanar for instance, will not be guided exclusively by the doctrines and declared
official position of the Roman Catholic Church related to such controversial subjects as
divorce, annulment of marriages and birth control, to cite only a few. Withal, Section
2175 covers only municipal offices, for the simple reason that it is in the lowest levels of
the government structure where the officials constantly deal directly and personally with
the people that the risks of religious influences in the daily affairs of public
administration can easily be exerted to the detriment of the principle of separation of
church and state. My impression is that if any religious is now being allowed to hold any
particular office that requires religious background and approach, it is mostly in
conjunction with other officials with whom he can only act in common, such as, in the
Board of Pardons and Parole, where he can exert at most only a degree of
recommendatory influence and he decides nothing conclusively for the state. In any
event, the spectacle of a priest and a politician being one and the same person may vet
be an attempt to mix oil with water, if it would not be doing what the Scriptures do not
permit: honor both God and Mammon

Of course, a Filipino priest or a nun does not cease to be a citizen endowed with all
political rights as such. I maintain, however, that the choice by any religious of the high
and noble vocation of dedicating his or her life to God and His Church should, in the
very nature of things and for the best interests of tile community as a whole, be deemed
as a virtual waiver or renunciation of the prerogative to hold a public office, for the
reasons of inevitable incompatibility I have discussed earlier, and it is but logical that the
law give effect to such renunciation, for the sake of both, the church and the state. As
Mr. Justice Ramon C. Aquino aptly puts it, it is not his or her religious belief but the
exclusivistic character of the vocation he or she has embraced that constitutes the bar
to any political ambition he or she may entertain. Just as the very Ideal itself. of religious
freedom has been held to yield to the demands of the public interest, it is not illogical,
much less legally untenable, to construe the "no religious test" provision in th e
Constitution as not constituting a prohibition against banning an ecclesiastic from
holding a municipal office due to the incompatibility between his commitment to his
vocations, on one hand, and his loyalty and dedication to his public office both of which
require his full and entire devotion.

MAKASIAR, J., concurring:

It grieves me to dissent on constitutional and legal grounds from my brilliant and learned
colleagues, Justice Enrique M. Fernando, Justice Claudio Teehankee and Justice
Cecilia Munoz Palma, whose scholarly dissertations always command respect; because
my discusssion will be a catalogue of the dangers po by the Church in which I was born
and nurtured like my two sons and two daughters - the Roman Catholic Church, in
whose service my late lamented father wanted to be, studying as he did for the
priesthood in a Catholic seminary

I fully concur with the no less incisive opinions of Chief Justice Fred Ruiz Castro, and
Justices Antonio P. Barredo, Felix Q. Antonio and Ramon C. Aquino. I only wish to add
some thoughts avoiding as far as possible restating the citations in their opinions.

But first, we shall apply the legal scalpel to dissect Section 23 of the Election Code of
1971, which, in the opinion of the trial judge, impliedly repealed Section 2175 of the
Revised Administrative Code. This issue which was not discussed extensively by Mr.
Justice Fernando in his opinion, is the centerpiece of the opinion of Mr. Justice
Teehankee who concurs with him.

The two alleged conflicting legal provisions are hereunder quoted:

Sec. 23. Candidate holding appointive office or position. Every person


holding a public appointive office or position, including active members of
the Armed Forces of the Philippines and every officer or employee in
government-owned or controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of candidacy: Provided,
That the filing of a certificate of candidacy shall not affect whatever civil,
criminal or administrative liabilities which he may have incurred (Election
Code of 1971, emphasis supplied).

Section. 2175. Persons ineligible to municipal office. — In no case shall


there be elected or appointed to a municipal office ecclesiastics, soldiers
in active service, persons receiving salaries or compensation from
provincial or national funds, or contractors for public works of the
municipality (Revised Administrative Code, emphasis supplied).

Basic is the rule that implied repeals are not favored unless there is such an
irreconcilable repugnancy between the two laws that both statutes cannot stand
together.

It is patent that the two legal provisions are compatible with each other. Section 23 of
the Election Code does not enumerate the persons disqualified for a public elective or
appointive office; but merely prescribes the effect of filing a certificate of candidacy by
an appointive public officer or employee or by active members of the Armed Forces of
the Philippines or by an officer or employee in a government-owned or controlled
corporation.' Section 23 states that upon the filing of his certificate of candidacy, such
appointive officer or employee or member of the Armed Forces shall "ipso facto cease
in his office or position ..." The obvious purpose is to prevent such candidate from taking
advantage of his position to the prejudice of the opposing candidates not similarly
situated.

On the other hand, Section 2175 of the Revised Administrative Code provides for an
absolute disqualification and enumerates the persons who are so absolutely disqualified
to run for or be appointed to a municipal office which enumeration includes not only
public officers but also private individuals like contractors and ecclesiastics Section 23
of the Election Code of 1971 applies only to public officers and employees, including
those in government-owned or controlled corporations and members of the Armed
Forces, but not to private citizens, like contractors or ecclesiastics Hence, a contractor
who is not employed in any government office or government-owned or controlled
corporation or in the Armed Forces, need not vacate his private employment., if any,
upon his filing a certificate of candidacy. likewise, if he were qualified in the absence of
the absolute e disqualifications in Section 2175 of the Revised Administrative Code, a
priest or minister is not ipso facto divested of his position in his church tile moment he
files his certificate of candidacy.

The fact that the Commission on Elections prior to the elections in 1971 denied
petitioner's petition for th annulment of the certificate of candidacy of private respondent,
is not conclusive on the Supreme Court, the final arbiter on legal questions and does
not constitute res judicata. The COMELEC's opinion may be persuasive, but never
binding on the Supreme Court. Moreover, the petition should have been dismissed as
premature then, because the issue might have been rendered moot and academic
should the candidate sought to be disqualified before the election loses the election. At
any rate, Section 219 of the Election Code of 1971 authorizes any voter to file quo
warrantoproceedings against any local officer-elect on the ground of ineligibility within
fifteen (15) days after the proclamation of his election. The adverse opinion on the part
of the COMELEC prior to the election, did not bar the petition for quo warranto under
Section 219 of the Election Code of 1971.

Moreover, unlike the 1973 Constitution, the 1973 Constitution did not est n the
COMELEC any power to decide contests relating to the election, returns and
qualifications of elective officials, whether national or local. Under the 1973 Constitution
the COMELEC is not conferred the power to decide contests relating to the election,
returns and qualifications of municipal elective officials. However, the 1973 Constitution
constitutes the COMELEC the sole judge of all contests relating to the elections, returns
and qualifications of the members of the National Assembly and the elective provincial
and city officials (Section 2[21, Art. XII, 1973 Constitution); but su h determination by the
COMELEC is still subject to review by the Supreme Court (Section I [1], Art. XI 1, 1973
Constitution), which therefore is the ultimate arbiter of such election issues.
If the implied repeal theory were sustained, then Section 23 of t tie Election Code of
1971, if construed to allow ecclesiastics and other ministers of religion to run for or be
appointed to a municipal office collides with tile Constitution as the same violates the
separation of church and state expressly enjoined b Section 15 of Article XV, Section
18(2) of Article VIII, and Section 8 of Article IV of the 1973 Constitution for the reasons
hereinafter stated.

II

WE shall proceed to marshal the forces with which to lay siege on the citadel erected by
Mr. Just ice Fernando to sustain his theory that Section 2175 of the Revised
Administrative Code was abrogatd by the no-religious test clause of Section 1(7) of the
Bill of Rights [Art. III of the 1935 Constitution, which is re-stated as Section 8 of the Bill
of Rights (Article IV) of the 1973 Constitution.

As above stated, repeals by implication are abhorred unless there is a clear showing of
complete and total incompatibility between the two laws. And WE believe that there is
no such irreconcilable repugnancy between Section 2175 of the Revised Administrative
Code and the no-religious test clause of the Bill of Rights.

On the other hand, the proposition advanced by my brethren, Justices Fernando and
Teehankee, clashes inevitably with the doctrine of separation of Church and State
expressly prohibited by Section 15 of Article XV of the 1973 Constitution, condemned by
Section 8 of the Bill of Rights (Article IV), and proscribed by Section 8 of Article XII and
Section i 8(2) of Article VI I I of the 197 3 Constitution.

Section 15 of Article XV categorically declares that:

The separation of Church and State shall be inviolable.

Section 8 of the Bill of Rights (Article IV) reads:

No law shall be made respecting an establishment of religion, or


prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference shall
forever be allowed. No religious test shall be required for the exercise of
civil or political rights.

Section 18(2) of Article VI I I states:

No public money or property shall ever be appropriated, applied, paid, or


used, directly or indirectly, for the use, benefit, or support of any sect
church denomination, sectarian institution, or system of religion, or for the
use, benefit, or support of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher, minister,
or dignitary, is assigned to the armed forces, or to any penal institution on
government orphanage or leprosarium.

Section 8 of Article XII commands that:

No religious sect shall be registered as a political party, ...

To stress, Section 2175 of the Revised Administrative Code, does not provide for a
religious test for the exercise of civil and political rights. The said section merely defines
a disqualification for a public office. It prohibits priests or ministers of any religion, and
the other persons specified in said Section 2175, from running for or being ap silted to a
municipal public office. It does not deprive such specified individuals of their political
right of suffrage — to elect a public official.

A citizen, who Is a Catholic, Protestant, Muslim, Aglipayan or a member of the Iglesia ni


Kristo, but who is not a priest or a minister of any religion, sect or denomination, can run
for a municipal elective office. Section 2175 does not inquire into the religion or lack of it
on the part of an ordinary citizen. If it does, all citizens would be disqualified for election
or appointment to a local public office; and there would be no need to single out soldiers
in active service, persons receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality, along with ecclesiastics All
these persons. whether priests or ministers or soldiers or contractors or employees of
the national or provincial government, profess some religion or religious belief. To
repeat, one is disqualified under Section 2175, not by reason of his religion or lack of it,
but because of his religious profession or vocation.

The separation of Church and State implicit in the Bill of Rights (Sec. 1, par. 'i of Art. III
of the 1935 Constitutions and Sec. 8, Article IV, 1973 Constitution), has been expressly
stated and therefore stressed in Section 15 of Article XV of the 1973 Constitution, which
categorically enjoins that "the separation of Church and State shall be inviolable." This
basic principle which underlies the structure of our government was the sharp reaction
to the historical lesson learned by mankind in general that the fusion of government and
religion tends to destroy government and degrade religion Engel vs.Vitale 370 US 421
because it invariably degenerates into tyranny. The terror that was the Inquisition
claimed for its victims physicist and astronomer Galileo Galilei and philosopher
Giordano Bruno among thousands of other victims.

The view herein enunciated by Justice Fernando and Teehankee will again usher in the
era of religious intolerance and oppression which characterized the Spanish regime of
about 400 years in the Philippines. It will resurrect in our political life that diabolic
arrangement which permits tile "encroachment of Church upon the jurisdiction of the
government, and the exercise of political power by tile religious, in short, the union of
the State and the Church — which historically spawned abuses on the part of the friars
that contributed to the regressiveness, the social and political backwardness of the
Filipinos during tile Spanish Era and bring about a truly theocratic state — the most
dangerous form of absolutism, according to Lord Acton that great liberal Catholic and
illustrious scholar (Senator Claro M. Recto "The Evil of Religious Test in our Democracy
, speech delivered before the Central Philippine University on February 19, 1960).

When a priest is allowed to run for an elective position, in the stirring language of the
erudite Claro M. Recto, he same will re-establish "a tyrannical regime that engaged in
the most vicious political and religious persecution against dissenters. The Church in
the Philippines was responsible for the execution of Fathers Gomez, Burgos and
Zamora, of Rizal and other Filipino patriots" (speech delivered on February 15, 1958
before the Supreme Council of the Ancient and Accepted Scottish Rite of Free
Masonry).

No doubt Section 2175 was designed to preserve the indestructible wall of separation
between Church and State the basic pillar of our democratic regime. The no-religious
test clause of the Constitution only implements and supplements one's freedom to
entertain views of his relations to his Creator and to preach, propagate and evangelize
his religious belief. But such no-religious test does not guarantee him the right to run for
or be appointed to a public office and thereafter to use such public office to compel the
citizenry to conform to his religious belief, thereby to gain for his Church dominance
over the State.

A priest or minister, once elected or appointed to a municipal office, necessarily enjoys


the salary pertaining to the office. This would be a direct violation of the prohibition
under Section 18(2) of Article VIII of the 1973 Constitution which was contained in
paragraph 3 of Section 23 of Article VI of the 1935 Constitution. Not only public funds
will be appropriated for his salary but the priest or minister thus elected or appointed as
a municipal officer employee will also directly or indirectly enjoy the use or benefit of any
property of the municipality. The only exception where such appropriation of public
money or property can be validly made in favor of such priest or minister is when he is
assigned to the Armed Forces or to any penal institution or government orphanage or
leprosarium.

What will necessarily follow would be the Church fielding its own candidates for
municipal offices all over the country even without registering as a political party. Such
support by the Church, although not registered as a political party, remains a
circumvention of the absolute prohibition specified in Section 8 of Article XII of the 1973
Constitution. And when the majority of the winning candidates for elective offices in tile
towns all over the country are supported by the Church, these officials will naturally be
beholden to the Church and will utilize — covertly or overtly — their office to further the
interests of the Church. When the Church achieves such political dominance, then the
Church will have the power to persuade the electorate or citizenry to amend the
Constitution to eliminate all the provisions on separation of Church and State, the
establishment of state religion and the utilization of public funds or property by the
Church or by any of its priests or ministers and the prohibition against the registration of
a religious sect as a political party.

The history of mankind, including our own history, to which Mr. Justice Jose P. Laurel
appealed in Aglipay vs. Ruiz (64 Phil. 201, 205), and our jurisprudence furnish the
formidable evidence of the dangers that religious supremacy poses to our country and
people.

Once a particular church or religion controls or is merged with the State, we shall bid
goodbye to all our liberties; because all other churches, religions, sects or
denominations and all other dissenters of whatever hue or persuasion, will not be
tolerated.

Just recently, columnist Teodoro F. Valencia recounted in his column of August 5, 1978
that a certain "Jose B. Marabe of Davao City reports that in the town fiesta of Talalora
West Samar, barrio officials were compelled to become Aglipayans because the mayor
turned Aglipayan. Those who did not obey were denied barangay aid" (Over a Cup of
Coffee, Daily Express, August 511978, p. 5).

Former Senator Claro M. Recto, the father of the 1935 Constitution, painfully narrates:

And yet we have been witnesses to the fact in the last two elections that
religious organizations, priests and nuns, bishops and archbishops
descended upon the political arena, not only to urge the faithful to support
their own favorite candidates for national positions, but to enjoin them from
voting for certain candidates whom the hierarchy considered enemies of
the church, under threat of ex-communication and eternal damnation The
confessional and the pulpit have been utilized for these purposes.

xxx xxx xxx

In the elections of 1955 the hierarchy made the first try. The hierarchy
gave several candidates for the Senate their imprimatur and their blessing
and not only enjoined the faithful to work and vote for them but also
enjoined them not to vote for candidates whom they had declared
anathema. Their agents conducted the campaign first in whispers and
through handbills and newspaper articles and caricatures in the
hierarchy's own press organ, but later the confessional and, in certain
areas, the pulpits became campaign platforms. Religious lay
organizations, priests and nuns, schools of both sexes, took active part in
the campaign. This was the church militant and the hierarchy were
successful to a certain extent. They were able to elect at least two
senators, although they failed to prevent the election of one they most
hated, abused and maligned. Pleased and encouraged by their initial
victory the hierarchy made a second try in the general elections. They put
up candidates for all national offices, President, Vice-President, Senators
and Representatives. They failed to elect the President, however, because
the hierarchy were hopelessly divided on the Presidency, as seen in the
advertisements which appeared in a section of the local press. Bishops in
league with a Filipino Archbishop, were backing one candidate. Those
owing fealty to a foreign diplomatic representative of the Church went all-
out for another candidate. They were all one, however, in enjoining the
faithful from voting for a third candidate, the same one they had fought
bitterly but unsuccessfully in the preceding senatorial elections.

Happily for the winning candidate for Vice-President, they were all united
for him. Not that the other three candidates for the office were reputed
enemies of the church. But one of them, orthodox in his faith and a regular
observant, they disliked for having sponsored and voted for the Rizal Bill.
They discarded another supposedly because of his allegedly non-too-
exemplary private life. And as to a third one, an acknowledged Catholic
leader, it was their belief that it would be wasting votes on him as he was
never given a chance to win. The victor, being the sole candidate of the
church for Vice- President, could not but win, thus justifying the name with
which he was christened, the Spanish word for God-given: Diosdado. The
church was also successful in electing two senators. Not that the
remaining six were not Catholics, but that they were not particularly
favorites.

It is thus undeniable that while the Constitution enjoins the state from
requiring any religious test for the exercise of political rights, it is the
church that in practice has of late required such a test according to its own
standards.

What was the cause of this sudden political belligerence on the part of the
hierarchy? Why this recent unabashed attempt to dominate the state
through the ballot box? No better answer can be given except that the
hierarchy must have reached a decision to implement the policy
announced in Rome in 1948, not exactly by the Vatican, but by the official
organ of a powerful religious organization reputed to be adviser to Popes,
in a leading article which proclaimed the following:

The Roman Catholic Church, convinced through its devisee prerogatives,


of being the only true church, must demand the right of freedom for herself
alone, because such a right can only be possessed by truth, never by
error. As to other religions, the Church will certainly never draw the sword,
but she will require that by legitimate means they shall not be allowed to
propagate false doctrine. Consequently, in a state where the majority of
the people are Catholic, the Church will require that legal existence be
denied to error, and that if religious minorities actually exist, they shall
have only a de facto existence without opportunity to spread their beliefs
... In some countries, Catholics will be obliged to ask full religious freedom
for all, resigned at being forced to co-habitate where they alone should
rightfully be allowed to live. But in doing this the Church does not
renounce her thesis, which remains the most imperative of her laws, but
merely adapts herself to de facto conditions, which must be taken into
account in practical affairs ...

This is the essence, not of religious freedom, but of sectarian intolerance:


the church, when a minority in a given country, urges freedom of worship
and co-existence along with others; but when in the majority, it denies that
freedom to other faith denominations, and claims a monopoly on truth. '4
Certainly this was not the view of the founders of the American Republic
when they instituted the principle of religious freedom.

xxx xxx xxx

The policy announced in Rome in 1948, to which I already referred, can


find no more adequate and conclusive refutation than in the following
statement by Dr. John B. Bury, Regius Professor of Modern History,
University of Cambridge, in his A History of Freedom of Thought:

A state with an official religious but perfectly tolerant of all creeds and
cults, finds that a society had arisen in its midst which is
uncompromisingly hostile to all creeds but is own and which, if it had the
power, would suppress all but its own. The government in self-defense
decides to check the dissemination of these subversive Ideas and makes
the profession of that creed a crime, not on account of its particular tenets
but on account of the social consequences of those tenets The members
of the society cannot without violating their consciences and incurring
damnation abandon their exclusive doctrine. The principle of freedom of
conscience is asserted as superior to all obligations to the State, and the
State, confronted by this new claim, is unable to admit it. Persecution is
the result. (pp. 4748).

What is to happen when obedience to the law is inconsistent with


obedience to an invisible master? Is it incumbent on the State to respect
the conscience of the individual at all costs, or within what limits? The
christians did not attempt a solution, the general problem did not interest
them. They claimed the right of freedom exclusively for themselves from a
non-Christian government; and it is hardly going too far to suspect that
they would have applauded the government if it had suppressed the
Gnostic sects whom they hated and calumniated

In any case, when a Christian State was established, they would


completely forget the principles which they had invoked. The martyrs died
for conscience, but not for liberty. Today the greatest of the Churches
demands freedom of conscience in the modern States which she does not
control, but refuses to admit that, where she had the power, it would be
incumbent on her to concede it. (pp. 49-50)

During the two centuries in which they had been a forbid. den t the
Christians had claimed toleration on the ground that religious belief is
voluntary and not a thing which can be enforced. When their faith became
the predominant creed and had the power of 'he State behind it, they
abandoned this view. They embarked or 'he hopeful enterprise of bringing
about a complete uniformity in men's opinions on the mysteries of the
universe, and began a more or less definite policy of coercing thought.
This policy was adopted by Emperors and Governments partly on political
grounds; religious divisions, bitter as they were, seemed dangerous to the
unity of the State. But the fundamental principle lay in the doctrine that
salvation is to be found exclusively in the Christian Church. The profound
conviction that those who did not believe in its doctrines would be damned
eternally, and that God punishes theological error as if it were the most
heinous of crimes, has naturally led to persecution. It was a duty to
impose on men the only true doctrine, seeing that their own eternal
interests were at stake, and to hinder errors from spreading, heretics were
more than ordinary criminals and the pain that man could inflict on them
were nothing to the tortures awaiting them in hell. To rid the earth of men
who, however virtuous, were through their religious errors, enemies of the
Almighty, was a plain duty. Their virtues were no excuse. We must
remember that according to the humane doctrine of the Christians, pagan
that is, merely human virtues were vices, and infants who died unbaptized
passed the rest of time in creeping on the floor of hell. The intolerance
arising from such views could not but differ in kind and intensity from
anything that the world had yet witnessed.' (pp. 52-53)" [The Church and
State Under the Constitution, Lawyers Journal March 31, 1958, pp. 83-84]

Section 2175 of the Revised Administrative Code does not therefore clash with the no-
religious test guarantee; because the same is indispensable to the very survival of this
republic against religious intolerance and hegemony If the 1971 Coninstitutional
Convention was not profoundly apprehensive of the evil effects of the fusion of the
Church and State, it would not have expressly reaffirmed the inviolability of such
separation, as heretofore stated, in Section 15 of Article XV of the 1973 Constitution.
Such deep conviction of the Filipino people was first given expression in 1899, even
before the beginning of the American regime, by our ancestors who, by reason of their
having been subject to the indignities generated by the union of Church and State, to
insure that such oppression will no longer abide, incorporated expressly in the Malolos
Constitution of the First Philippine Republic that the state recognizes the equality of all
religous worships and the separation of the Church and State" (Art. V, Title 111, Malolos
Constitution).

As a living witness to the religious tyranny during the Spanish regime, Justice Florentino
'Torres of this Supreme Tribunal affirmed before the Philippine Commission in 1900 the
abuses of the friars (see Agoncillo and Alfonso, A History of the Filipino People. 1960
ed. p. 11; 5 quoted in the dissenting opinion of Justice Antonio).

Professor Renato Constantino recounts:

But the fundamental cause for the warning zeal and ensuing corruption of
the friars was their accquisition of property.

A letter to Governor Dasmarinas from Bishop Domingo Salazar dated


March 21, 1591. recounts in passing how the religious in Mexico obtained
the revocation of a loyal prohibition against their owning property. the
religious contended that there were too many disadvantages in having the
friars live alone. They proposed the establishment of houses to be
manned by at least four ecclesiastics But this raised the problem of their
support. Declaring that they did not want their missionaries to be a burden
to their flock, the Dominicans and the Augustinians suggested that the
best solution ,one estates in the native would be for the king grant them
some estates in the native proposal ran counter to a royal order that the
clergy should not own lands in the Indian villages: but the religious,
through Bishop Salazar himself. succeeded in persuading the king to
revoke his decree.

xxx xxx xxx


The friars also bought land from tile natives with the money they obtained
from church fees, from trade, or from the profits gained from the produce
of lands which utilized forced labor. With their prestige and power, it was
easy for them to pressure villagers into selling them their lands at very low
prices.

Other landholdings were acquired through the foreclosure of mortgages.


The story of how friars became mortgagees often began innocuously
enough. Living as they did among the people, the religious were in the
best position to appreciate the possibilities of agricultural development.
Seeing that the obstacle to more extensive cultivation was lack of capital,
many priests entered into partnership with farmers, advancing them
money for seeds, work animals and tools. The priests received half of the
harvest.

Although this arrangement favored the money lender who received a fat
share without working, at least he ran the same risk as the farmer of
getting little if the harvest was poor. But when the dependence on priestly
capital had become more or less established, the friars began to demand
that their advances be regarded as loans payable at a fixed rate of interest
whether the harvests were good or bad. The risks were now borne by the
tillers alone, and in bad seasons they ran into debt.

When such debts accumulated, the friars forced the farmers to mortgage
their land to them and eventually foreclosed the mortgage. The friars then
obtained title to such lands and the farmer-owners were either driven
away or became tenants.

xxx xxx xxx

Some friar lands were obtained through outright usurpation. With the help
of corrupt surveyors and other government official, religious corporations
were able to expand their landholdings. Additional hectares of land outside
original boundaries of friar property were simply gobbled up each time a
new survey was undertaken. Many times, the priests just claimed pieces
of land, drew maps of them, had them titled, and set themselves up as
owners.

The original native settlers who had tired the land for years were
summarily declared to be squatters. When the natives protested, they
were asked for legal proofs of ownership of the land in question. More
often than not, they could not show any legal document attesting to their
ownership of the land. The natives did not have 'titulos reales since their
claim to the land was based on de facto possession.

xxx xxx xxx

Taxes, tributes, exorbitant rents and arbitrary increases of the same,


forced labor and personal services — all these intensified the hardships of
natives who now had to give up a good part of their produce to their
landlords. In addition, some administrators practiced other petty cruelties
which caused much suffering among the people.

In 1745, in the Jesuit ranches of Lian and Nasugbu, Batangas, for


example, the people accused the religious not only of usurping the
cultivated lands and the hills that belonged to them but also of refusing to
allow the tenants to get wood, rattan and bamboo for their personal use
unless they paid the sums charge by the friars.

In Bulacan, villagers complained that the religious cheated them out of


their lands and then cruelly proceeded to deny them the right to fish in the
rivers, to cut firewood, and to gather wild fruits from the forests. The friars
would not even allow their carabaos to graze on the hills since the
religious now claimed all these areas as their own. "In Cavite, Manila and
Bulacan, small landholders complained that since the friars, owned the
land through which the rivers passed, they had to agree to the friars' terms
if they wanted water for irrigation purposes.

Lessees of friar lands protested bitterly that their landlords raised their
rents almost every year and particularly whenever they saw that through
the farmers' labor the land had become more productive. In some cases,
they even imposed a surtax on trees planted by the tenants. When they
accepted rental payments in kind, the administrators of the friar estates
arbitrarily fixed the prices of these products, naturally at lower than
prevailing prices.

Aside from institutional exploitation, exactions of a personal nature were


rampant. Curates charged a bewildering number of fees for all sorts of
rites, from baptism to burial. The natives paid even if it meant selling their
last possessions because they had been taught that such rites were
indispensable to the salvation of their souls.

Friars made money selling rosaries, scapulars and other religious objects.
They required from their flock all kinds of personal services and gifts of
food for the convent table.

Priests often administered corporal punishment, usually whippings on


natives who dared disobey their orders or disregard their caprices.
Unmarried girls were compelled to report to the convent to pound rice and
sweep the church floors. The large number of Filipinos today who have a
priest somewhere in their family trees attests to the frequency with which
the vows of celibacy were transgressed.

Of course, the cruelty capriciousness and frequency of abuses depended


on the character of the individual priest - and there were good and bad.
However, it cannot be denied that the virtually unchallenged power of the
friar in most communities had a corrupting influence on most.

The people's mounting resentment led them to commit various acts of


defiance, to refuse to pay the unjust taxes imposed by friar estate
administrators, and finally to resort to armed rebellion. So serious were the
clerics abuses that by 1751, the king was moved to issue a royal decree
ordering local government authorities

to exercise hereafter the utmost vigilance in order that the


Indians of the said villages may not be molested by the
religious, and that the latter should be kept in check in the
unjust acts which they may in future attempt ...

But by that time such a directive could hardly be enforced. The friars had
become too powerful not only because of their spiritual hold over both the
Spanish officials and the natives, but also by virtue of their established
economic power. In addition, they had become a ubiquitous presence in
the local machinery of administration.

Against the power of his friar landlord, a tenant found it impossible to


prosecute his interests or have his complaints heard. A poor tenant could
not afford the costs of a lawsuit, granting that he knew the first thing about
litigation procedures. Besides, what chance had he against such a
powerful figure as a friar? If a friar wanted a tenant evicted, the cleric
could easily prevail upon a judge to issue the order. and he could as easily
avail himself of government forces to execute the decision. Recalcitrant
tenants were often evicted en masse there were so many landless
peasants to take their places, anyway.

Exploitation, with its concomitant personal cruelties and abuses, was part
and parcel of the imperative of property expansion once the friars' right to
property had been recognized. Economic power enhanced political power,
and political power was used time and again to expand economic power
and to oppose any attempts by government to frustrate economic
expansion.

By the end of the Spanish occupation, the friar were in possession of more
than 185,000 hectares or about one-fifteenth of the land under cultivation.
Of this total, around 110,000 hectares were in the vicinity of Manila.

xxx xxx xxx

The early ascendancy of the Church over the State was made possible by
the success with which the friars undertook, almost single-handedly, the
pacification of t lie country.

Since this success was due in large measure to the native's acceptance of
the new religion, Spanish power in most communities rested on the
influence of the religious. The prevalent opinion at that time that 'in each
friar ill the Philippines the king had a captain general and a whole army is
a recognition of this fact.

Moreover, in more than half of the villages in tile islands there was no
other Spaniard, and therefore no other colonial authority the friar. This
state of affairs obtained almost to tile end of Spanish rule.

Other factors contributed to friar ascendancy. The friars knowledge of the


land and of the people was invariably superior to that of the government
functionary. The Spanish alcaldes mayores were dependent on the
religious not only because t he latter spoke I lie native dialects but also
because the tenure of these government officials was temporary while that
of the parish priest was more or less permanent.

A more fundamental basis of the great political power of the religious was
the Spanish concept of the union of Church and State. The friar was
entrusted with an ever-growing number of civil duties within the community
until there was no aspect of community life in which he did not have a
hand.

He was inspector of primary schools, and of taxation;


president of the board of health, charities, of urban taxation,
of statistics, of prisons; formerly, president of the board of
public works. He was a member of the provincial board and
the board for partitioning crown lands. He was censor of the
municipal budget, of plays comedies and dramas in the
native language given at the counselor of matters in regard
to the correctness of cedulas, municipal council, the police
force, the schools, and the drawing of lots for army service.

Economic power through landholding and through investments in foreign


and internal trade, political power through extensive participation in
government, and spiritual control over both the native population and
fellow Spaniards — all these combined to make the friar the principal
figure in each community, and the Church the dominant power in the
country.

xxx xxx xxx

Time and again, governors complained of the abuses of the clergy and
appealed to the Spanish monarch to curtail their powers. As early as
1592, Governor Dasmarinas was already railing against friar power. He
wrote:

And the friars say the same thing — namely, that they will
abandon their doctrinas (i.e., Christian villages) if their power
over the Indians is taken away. This power is such that the
Indians recognize no other king or superior than tile father of
the doctrine and are more attentive to his commands than to
those of the governor, Therefore the friars make use of them
by the hundreds, as slaves, in their rowing, works, services,
and in other ways, without paying them, and whipping them
as if they were highway men. In whatever pertains to the
fathers there is no grief or pity felt for the Indians; but as for
some service of your Majesty, or a public work, in which an
Indian may be needed, or as for anything ordered from them,
the religious are bound to gainsay it, place it on one's
conscience, hinder it, or disturb everything.

In 1636, Governor Sebastian Hurtado de Corcuera wrote the king


objecting to the increase in the number of religious in the islands.
According to him, the friars had reduced the natives to virtual slavery by
forcing them to sell to the religious at their rice and cloth at prices set by
the latter who then monopolized the business in these items. And yet, the
governor complained, when assessments of rice, cloth d wine were levied
on the people by the government, these same friars objected on the
ground that the natives were too poor to pay what was demanded.

xxx xxx xxx

Abuses such as the friar's excessive interference in the natives' daily life,
personal insult, corporal punishment such as whipping and lashing of both
men and women for the slightest offense, onerous fees for confessions
and other religious rites, sexual offenses against native women, and the
native virtual reduction to a slave and servant of the friar — all these were
being committed as early as the second or third decade of occupation. But
these wrongs were still inflicted and also accepted on an individual basis
and they varied in intensity and frequency depending on the personality of
each priest. Furthermore, since punishments were meted out on a variety
of individual offenses, there was no common grievance strong enough to
call forth united action, although there is no doubt that resentment were
building up.

But when the religious orders began to acquire property, their abuses took
on a different complexion. As landlords, they became economic exploiters
whose abuses threatened the economic survival of the natives. Such
abuses were no longer inflicted by an individual on separate individuals.
Neither were they occasional or dependent on a particular friar.

Exploitation was basic and permanent, and enforced by an institution on


groups of men constituting practically the entire community. Moreover, this
kind of exploitation could not be justified in any way as part of the friar's
religious mission. All these factors transformed isolated resentments into
common and bitter grievances that erupted in revolts against the friars.

That native disaffection with the religious orders had a profoundly material
basis is proved by the fact that discontent exploded in revolts precisely in
areas where friars were known to hold large tracts of agricultural land. In
the provinces of Cavite, Laguna, Manila, Bulacan and Morong (now Rizal),
the religious owned more than one-half of the total agricultural land. It is
not mere coincidence that these provinces experienced many agrarian
uprisings and became the strongholds of the Philippine Revolution.

To summarize: the attitude of the natives to the Church in the course of its
economic and political ascendancy changed from initial obedience due to
awe and fear; to loyalty and subservience arising from acceptance of the
Catholic religion and experience with the power of priests within the
colonial hierarchy, but accompanied by personal resentments; to
generalized or group hostility because of common experience with
economic exploitation by the friars; and finally, to the violently anti-friar
sentiments of the masses during the Revolution (see Chapters 9 and 10)
which resulted in demands for their expulsion and in the rise of an
indigenous Church.

It is very clear that this transformation in the realm of consciousness was a


response to a material stimulus — the transformation of the Church from a
colonial accessory to the principal apparatus of colonial appropriation and
exploitation" (The Philippines — A Past Revisited, 1975, pp. 66 to 80).

Again, we have to summon the prodigious intellect of that great nationalist, Claro M.
Recto, himself a victim of the most vicious campaign against his candidacy in 1957
waged by the dominant Catholic church, which refused to heed the injunction of Christ,
explicit from His answer to the Pharisees when they attempted to entrap Him into
opposing the power of Rome, to "render unto Caesar the things that are Caesar's and
unto God the things that are God's". Recto, with his keen and prophetic mind, easily
discerned the dangers posed by church interference in our democratic system. In his
speedch delivered on February 19, 1960 on the occasion of the conferment upon him of
the degree of Doctor of Humanities, honoris causa by the Central Philippine University
Iloilo City, Recto concluded his argument against the unholy alliance of Church and
State, thus:

It is to be deplored that in recent years the most numerious Church in this


country, not satisfied with the hold it has on the fealty of four-fifths of the
nation as no government has ever enjoyed or will enjoy here, has made
use of its privileged position by demanding from candidates to public
office, particularly the elective ones, certain religious tests and pledges of
allegiance. The immediate purpose, of course, is to acquire through
policy-making government officials, control of the public affairs and
ultimately to establish here a truly theocratic state, which, according to
Lord Acton, a liberal Catholic and great English scholar, is 'the most
dangerous form of absolutism.

We have been witnessing from time to time the organization of sectarian


professional groups. We already have a lawyers sectarian association,
and only recently certain local physicians who, claiming to believe that
they should consider religion in the practice of their profession, have
grouped themselves into a sectarian association , and only recently
certain local physicians who, claiming to believe that they should consider
religion in the practice of their profession, have grouped themselves into a
sectarian association of apothecaries organized one of these days, and
other similar ones, until there shall not be a single profession or
occupation without its own sectarian association.

xxx xxx xxx

At the time the most numerious Church in this country moved onto the
political stage, a young Filipino priest, reputedly an intellectual in his own
religious order, made in the course of a public address at the Luneta, with
the evident placet of the corresponding hierarchy — qui tacet consentire
videtur — the most daring proposal that there should be union of Church
and State, with the Church assuming naturally the leadership inthe unholy
partnership. such a proposal is most likely to happen should the most
numerious Church obtain the necessary control of the legislature.

In the last three elections the most numerous Church made its influence
felt. There was a small chosen group of ambitious political upstarts — the
youth elite, so to speak — who took to the field with the unmistakable
blessings and patronage of their Church's hierarchy. Although this group
did not carry officially its sects banner, it was to all intents and purposes
just that with no pretense at being anything except it was Identified with
the Church in question and it received the latter's unqualified and
unstinted support through pulpit and confessional and through religious
schools and associations all over the country, Priests and nuns in charge
of private schools were particularly in their newly found militancy. The
haloed candidates of this group were presented to the electorate as the
honest among the holy and they carried the standard, albeit unofficial of
their Church, the implication was that at least for the voter that belongs to
it, they were the only ones fit, under bulls and encylclicals, for public office.

The irony of all this is that while the government is enjoined by the
Constitution from imposing or requiring religious test to any office, it is a
religious establishment, the that incrusions in the country, that is doing so.
Although this religious establishment did not fare as it had expected iii the
last three elections. t here is no doubt that its incursions into the political
field should not be taken lightly. If these inroads are not curbed now, th
day is not far off when we shall see the halls of congress being used to
proselytize the nation and the people legislated into one religion; faith, An
established church. which is another name for union of Church and State,
consecrated by approriate constitutional ammendement, would be the
tragic result

xxx xxx xxx


Origin, one of the early Fathers - he lived in the 3rd century - admonished
that 'Christians should not take part ill the government of the State, but
only of the divine nation'. 'that is, the Church; and rightly so, because most
people regard politics as 'worldly' and unworthy of any really holy man.'
This same doctrine, according to Bertrand Russell 'is implicit in Saint
Augustines City of God o much so that it led churchmen, at the time of the
fall of Western Empire, to look on passively at secular disasters while they
exercised their very great talents, in Church discipline, theological
controversy, and the spread of monasticism.

Writing to a correspondent in Constantinople, Gregory the Great said.


'What pleases the most pious emperor, whatever, he commands to be
done, is in his power ... As he determines, so let him provides. What he
does, if it is canonical we will follow; but if it is not canonical we will bear it,
as far as we can without sin of our own ... Rulers should not be criticized,
but should only be kept alive to the danger of hell fire if they fail to follow
the advise of the church.' Pope Nicholas I of the 8th century replied to an
angry letter of Emperor Michale III: 'the day of King-Priests and Emperor-
Pontiffs is past; Christianity has separated the two functions.'

Gelasius, a pope in the fifth century, laid down the principle of separation
of Church and State in the following words:

... It may be true that before the coming of Christ, certain persons ...
existed who were at the same time priests and kings, as the holy scripture
tens us Melchizedech was.

... But, after the coming of Christ (who was Himself both the true king and
the true priest), no emperor thereafter has assumed the title of priest, and
no priest has seized a regal throne ... He separated the kingly duties and
powers from the priestly, according to the different functions and dignity
proper to each ... The soldier of the Lord should be as little as possible
entangled in secular business, and that one involved in secular affairs
should not be seen occupying the leadership of the church.' Masters of
Political Thoughts by Michael B. Foster, vol. 1, pp. 231-232.)

Pope Leo XIII, in his Encyclical 'Immortal Dei (November 1885) said:

It is generally agreed that the Founder of the Church, Jesus Christ, wished
that the spiritual power to be distinct from the civil, and each to be free and
unhampered in doing its own work, not forgetting, however, that it is
expedient for both, and in the interest of everybody, that there be a
harmonious relationship.

xxx xxx xxx

Reichersberg another famous churchman of the twelfth century, who


supported the Pope in the Investiture controversy, said:

Just as the emperors sometimes arrogated to themselves functions


belonging to the priesthood and the church; so they (the priests) on the
other hand imagine that their priesthood confers on them also an imperial,
or more than imperial power

... What then will have become of those two swords of the Gospel, if the
apostle of Christ shall be all, or if the Emperor shall be all? If either the
Empire or the priesthood shall be robbed of its strength and dignity, it will
be as though you were to take one of the two great luminaries from the
sky. (Id, p. 235.)

Don Luigi Sturzo a distinguished Catholic Italian scholar, speaking of the


separate functions of Church and State, says: 'Every attempt to overstep
such limits, from either side, has violated the laws of nature and those of
revelation. (Church and State, vol. I, p. 28).

Lord Acton in his 'Political Philosophy,' pp. 43-44, remarked:

If a Church is united with the State the essential condition of freedom


vanishes. It becomes officiated. And those who govern the Church are
tempted to divert its influence to their own purposes. Similarly, the support
of the Church dangerously increases the authority of the State, by giving a
religious sanction to the behests of the State. This increases the danger of
depositism.

Under the terms of the Lateran Treaty with Italy, which was concluded in
1929, the Holy See not only agreed that Catholic organizations would
abstain from politics, but it declared that 'it wishes to remain, and it will
remain extraneous to all temporal disputes between nations and to all
international congresses convoked for the settlement of such disputes
unless the contending parties make a concordant appeal to its mission of
peace; nevertheless it reserves the right in every case to exercise its
moral and spiritual power.'

In the 'Report on Church anti State' (Message and Decisions of Oxford


[19571 on Church, Community, and State, pp. 27-30), it was declared that
'The Church as the trustee of God's redeeming Gospel and the States as
the guarantor of order, justice, and civil liberty, have distinct functions in
regard to society. The Church's concern is to witness to men of the
realities which outlast change because they are founded on the eternal
Will of God. The concern of the State is to provide men with justice, order,
and security in a world of sin and change, As it is the aim of the Church to
create a community founded on divine love, it cannot do its work by
coercion, nor must it compromise the standards embodied in God's
commandments by surrender to the necessities of the day. The State, on
the other hand, has the duty of maintaining public order, and therefore,
must use coercion and accept the limits of the practicable.

xxx xxx xxx

To allow an ecclesiastic to head the executive department of a municipality is to permit


the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect. For it requires no in-depth analysis to realize the
disastrous consequence of the contrary situation — allowing ecclesiastics to run for a
local position. Can there be an assurance that the decisions of such ecclesiastic in the
exercise of his power and authority vested in him by reason of his local position will be
clothed with impartiality? Or is not the probability that his decision as well as discretion
be tainted with his religious prejudice, very strong? For considering the objectives of his
priestly vocation, is it not incumbent upon him to color all his actuations with the
teachings and doctrines of his sect or denomination? Is there an assurance that in the
appointment to appointive municipal positions the religious affiliation of the competing
applicants will not play the decisive factor? If the ecclesiastic elec to a municipal office
of mayor is a Catholic, would the chances of an heretic an Aglipayan, a Protestant or an
Iglesia ni Kristo adherent be as equal as those of a Catholic?
Pursued further, in the solemnization of marriage, how would he resolve the conflict
between civil laws and his religion? Will he conduct the same under the tenets of his
religion or under the commands of civil laws? Will he be willing to solemnize the
marriage of applicants who both do not belong to his sect Will he be imposing the
requirement, assuming that he is a Catholic, that the non-Catholic party should agree
that the children of the union shag be brought up according to the Catholic dogma
Where the applicants are first cousins, will he be willing to solemnize the marriage,
considering that under civil law, the same is prohibited, but under Catholic rules, the
same is allowed? Where obedience to the law of the State is inconsistent with
obedience to the law of his Church, how will he act? Such questions could be asked
also of the municipal officials who are ministers of other religions or sects

Again, in the exercise of his preliminary investigation authority, how would he decide
cases under investigation where the crimes involved are violations of Article 132
(Interruption of religious worship) and Article 133 (Offending the religious feelings)? Will
not his religious convictions and prejudices color his actuations?

Also, in the matter of permits for the use of public places for religious purposes, how
would he treat applications filed by atheists or by religious sects other than his? Could
there be an assurance of strict impartiality?

What alarms me more, however, is the effect of the majority opinion — allowing
ecclesiastics to run for a public office in the local government — on the present posture
of the Churches in the present political situation. For I entertain very strongly the fear
that with such ban lifted, it will not be too long from today that every municipality in the
country will be headed by a priest or minister. And the result of such a situation need
not be emphasized any further.

Recto had expressed it in no uncertain terms. Recto ventured to foretell in the same
speech earlier quoted:

... in the light of the events of the recent past, unless the hierarchy of the
most numerous Church withdraws definitely and completely from the field
of its newly found activities, the nation will eventually find itself sucked into
the maelstrom of a religion political war with the said Church on one side
and on the other a powerful alliance not only among those who belong to
other religious denominations, but also a sizable portion of its faithful who,
because of nationalism or civil libertarianism would refuse to follow their
spiritual leaders in such a purely mundane crusade. It is irrelevant whether
the numerous church or its allied opponents emerge victorious in such a
battle, for the outcome will be the same as in the ones between
Hildebrand and Henry IV and their respective successors, and between
the thirteenth-century popes and the Holienstaufen 'the usual outcome.' in
the words of Toynbee 'of all wars that are fought to the bitter end the
nominal victor succeeded in dealing the death-blow to his victim at the
cost of sustaining fatal injuries himself; and the real victors over both
belligerents were the neutral tertii gaudentes. In our case, the tertii
gaudentes, the happy onlookers, if I may be allowed to translate these
Latin word freely ' would be the enemies of our nation and people, the real
beneficiaries of such a tremendous national misfortune.

Finally, the majority opinion will precipitate small religious wars in every town. We have
seen in cases decided by this Court how the religious fanatics have persecuted religious
sects in some towns giving rise to bloody episodes or public disturbances.
It would seem that any human activity touching on the religious beliefs and sentiments
of the people easily agitate their emotions, prejudices and passions, causing even the
ordinarily reasonable and educated among them to act intolerantly.

Indeed, in one case that reached this Court, Mr. Justice Jose P. Laurel, alarmed by the
bigotry of a Roman Catholic priest so obvious from his actuations, articulated in his
dissenting opinion the following thoughts:

Why, may I ask, should the mere act of passing of the corpse or funeral
cortege in or through a private property be characterized asnotoriously
offensive to the feelings of any religion or its adherents or followers?

The Lord gave, and the Lord hath taken away; blessed be the name of the
Lord (Job, 1.21).

In this case, the Lord has recalled the life of one of His creatures; and it
must be His wish that the remains shall have the right of way that they
may be buried 'somewhere, in desolate wind swept space, in twilight land,
in no man's land but in everybody's land.'

Rather than too many religions that will make us hate one another
because of religious prejudices and intolerance, may I express the hope
that we may grasp and imbibe the one fundamental of all religions that
should make us love one another. (People vs. Baes, 68 Phil. 203 [l939]).

In the aforesaid case of Baes, a Roman Catholic priest attempted to prevent a funeral
held in accordance with rites of the sect "Church of Christ" from passing through the
Catholic churchyard fronting the Roman Catholic Church of Lumban, Laguna. Having
failed allegedly because the accused used force and violence, the priest filed a
complaint against the former for violation of Article 133 of the Revised Penal Code,
which, however, was dismissed by the lower court upon motion of the fiscal on the
ground that the acts alleged in the complaint did not constitute the offense against
religious feelings. The intolerant priest however had his day before this Court which, on
appeal, ruled otherwise, declaring that the offense to religious feelings, under the factual
circumstances of the case, must be judged according to the feelings of the Catholics
and not those of other faiths. Justice Jose P. Laurel, joined by Justice Imperial, strongly
dissented from the aforesaid conclusion of the majority of the Court, stating that:

... As I see it, the only act which is alleged to have offended the religious
'feelings of the faithful' here is that of passing by the defendants through
the atrio of the church under the circumstances mentioned. I make no
reference to the alleged trespass committed by the defendants or the
threats imputed to them because these acts constitute different offenses
(Arts. 280, 281 and 282-285) and do not fall within the purview of Article
133 of the Revised Penal Code. I believe that an act, in order to be
considered as notoriously offensive to the religious feelings, must be one
directed against religious practice or dogma or ritual for the purpose of
ridicule; the offender, for instance, mocks, scoffs at or attempts to damage
an object of religious veneration it must be abusive, insulting and
obnoxious Viada Commentaries al Codigo Penal, 707, 708, vide also
Pacheco, Codigo Penal, P. 259).

Why, may I ask, should the mere act of passing of the corpse or funeral
cortege in or through a private property be characterized as notoriously
offensive to the feelings of any religion or of its adherents or followers?
The Lord gave, and the Lord hath taken away; blessed be the name of the
Lord (Job. 121). "In this case, the Lord has recalled the life of one of His
creatures; and it must be His wish that the remains shall have the right of
way that they may be buried 'somewhere, in desolate, wind swept space,
in twilight land, in no man's land but in everybody's land." Rather than too
many religions that will make us hate one another because of religious
prejudices and intolerance, may I ex press the hope that we may grasp
and imbibe the one fundamental of all religions that should make us love
one another.

It must decline to accept the statement made in the majority opinion


that 'whether or not the act complained of is offensive to the religious
feelings of the Catholics, is a question of fact which must be judged on tv
according to the feelings of the Catholics and not those of other faithful
ones, for it is possible that certain acts may offend the feelings of those
who profess a certain religion, while not otherwise offensive to the feelings
of those professing another faith.' (emphasis is mine). I express the
opinion that the offense to religious feelings should not be made to
depend upon the more or less broad or narrow conception of any given
particular religion, but should be gauged having in view the nature of the
acts committed and after scrutiny of all the facts and circumstances which
should be viewed through the mirror of an unbiased judicial criterion.
Otherwise, the gravity or leniency of the offense would hinge on the
subjective characterization of the act from the point of view of a given
religious denomination or sect and in such a case, the application of the
law would be partial and arbitrary, withal, dangerous, especially in a
country said to be 'once the scene of religious intolerance and
persecution' (Aglipay vs. Ruiz, 35 Off. Gaz. 2164) [pp 208-210].

In United States vs. Dacquel (36 Phil. 781 119171), accused barrio lieutenant halted
and attacked, with the help of three men, some of the Roman Catholic inhabitants of the
barrio of Sococ in the Province of Ilocos Sur who were then having a religious
procession without the barrio lieutenant's consent or authorization which seemed to
have angered him. He was convicted of grave physical injuries inflicted by him during
that incident upon a participant, a nine-year old girl.

The case of Balcorta (25 Phil. 273 [19131) reveals that an Aglipayan, who, uninvited,
entered a private house, where services of the Methodist Episcopal Church were g
conducted by 10 to 20 persons and who then threatened the assemblage with a club,
thereby interrupting the divine service, was found guilty under Article 571 of the old
Penal Code (similar to Art. 133, Revised Penal Code).

Again, in (56 O.G. 2371 [1958]), its factual circumstances reveal that the complaint filed
by the chief of police alleged that while devotees of the Iglesia ni Kristo were holding a
religious ceremony in a certain house in Dinalupihan, the accused stopped in front
thereof, made unnecessary noise, and shouted derogatory words against the Iglesia ni
Kristo and its members, and even stoned the house.

Ignacio vs. Ela (99 Phil. 347 [1956]) arose because of the act of the mayor of Sta. Cruz,
Zambales, in permitting the members of the Jehovah's Witnesses to hold their meeting
at the northwestern part of the plaza only, instead of at the kiosk in the public plaza. The
actuation of the mayor was pursuant to a policy he adopted even before the request
made by the members of the Jehovah's Witnesses, it appearing that the public plaza,
particularly the kiosk, is located at a short distance from the Roman Catholic Church,
causing some concern, because of the proximity, on the part of the authorities; hence,
to avoid disturbance of peace and order, or the happening of untoward incidents, they
deemed necessary to prohibit of meeting of its members, especially so, that in the
instant case, the tenents of petitioners' congregation are derogatory to those of the
Roman Catholic Church. The respondent mayor was sustained by this Court, with four
members of the Court dissenting.

The case of U.S. vs. Apurado, et al. (7 Phil. 422 [1907]) shows that while the municipal
council of San Carlos, Occidental Negros was in session, some 500 residents of the
town assembled near the municipal building. Upon the opening of the session a large
number of those assembled about the building crowded into the council chamber about
the building crowded into the council chamber and demanded the dismissal from office
of the municipal treasurer, the secretary and the chief of police, and the substitution in
their places of new officials. The council acceded to their wishes and drew up a formal
document setting out the reasons for its action, which was signed by the councilors
present and by several leaders of the crowd. It appears that the movement had its origin
in religious differences between residents of the municipality. The petitioners believed
that the officials above-named should not continue to hold office because of their
outspoken allegiance to one of the factions into which the town was at that time divided.
(This Court reversed the decision, of the trial court convicting them of sedition).

In People vs. Reyes, et al (CA-G.R. No. 13633-R, July 27, 1955), the accused Reyes,
who was the chief of police of the town of San Esteban, Ilocos Sur, ordered his
policemen to stop Minister Sanidad of the Iglesia ni Kristo, which was then holding a
meeting at the public plaza, from continuing with his sermon when the latter attacked in
the course of his sermon the Catholic and Aglipayan churches, as well as the women of
San Esteban, Ilocos Sur. Accused were convicted of violation of Art. 131 of the Revised
Penal Code.

Again, in People vs. Migallos (CA-G. R. No. 13619, August 5, 1955) wherein the
accused was convicted by the Court of First Instance and Court of Appeals of the
offense defined under Art. 133 of the Revised Penal Code, the facts show that Minister
Tagoylo of the Iglesia ni Kristo sect was stoned by the accused while the former was
preaching or spreading his belief on a public road before a crowd of around 500
persons.

People vs. Mandoriao (CA-G.R. No. 12114, February 25, 1955, 51 O.G. 4619) started
with a rally organized by the Iglesia ni Kristo, attended by about 300 people, 50 of whom
belonged to the said sect at a public park in Baguio City. One of the ministers of the
sect expounded on a topic asserting that Christ was not God but an ordinary man,
causing the crowd to become unruly, whereupon, appellant went up the stage and
grabbed the microphone challenging the minister to a debate. (The lower court
convicted appellant of violation of Art. 133 of the Revised Penal Code but the Court of
Appeals acquitted him).

In People vs. Gesulga (1 C. A. Rep. 103), appellant, a protestant preacher of the


Seventh Day Adventist, was found guilty by the lower court of offending religious
feelings. The Court of Appeals reversed the conviction. The fact show that some
Catholic elements in Leyte conducted a barangay, similar to the rosary, which continued
with a procession outside. The procession with big attendance had to pass along the
barrio road in the middle of which a Protestant meeting was being held under a permit
issued by the municipal mayor. On account of said meeting, the procession could not
pass through. Those attending the procession requested from, but were denied
passage by, the appellant who was then speaking at the meeting (in the course of which
he uttered words notoriously offensive to the feelings of the Catholic faithful). The
processional participants who were singing Ave Maria in high pitch, took another road,
while others passed under the nearby houses. When the procession was about 10
meters from the meeting place, appellant temporarily stopped talking and resumed his
talks after the procession had passed.
In the case of People vs. Tengson [(CA) 67 O.G. 1552], the criminal act complained of
was the performance by the appellant of burial rites inside the Roman Catholic
Cemetery in accordance with the rules and practices of the sect called "Christ is the
Answer". There was a permit for the burial in question. Convicted by the lower court,
appellant was acquitted on appeal.

The inevitable consequence of the election or appointment of priests or ministers of


religion to municipal public offices would be the appropriation of public funds for the
payment of their salaries and their utilization of public property, which may likewise be
employed, directly or indirectly, for the benefit or support of any sect church,
denomination, sectarian institution, or system of religion - a palpable violation of the
constitutional prohibition against the appropriation of utilization of public money or
property for such religious purposes (Par. 2, Sec 18, Art. V III, 197 3 Constitution).

In sum, if the disqualification prescribed in Section 2175 of the Revised Administrative


Code were nullified, three basic constitutional guarantees would thus be violated —
Section 8 of Article IV, Section 18(2) of Article VIII, and Section 15 of Article XV of the
1973 Constitution.

The newly elected Head of the Catholic church, Pope John Paul 1, upon his installation
on September 1, 1978, enjoined his Catholic flock to strictly adhere to the Jeffersonian
concept of separation of Church and State.

In its editorial of September 6, 1978, the Times Journal (p. 4) commented on the
aforesaid Papal pronouncement:

Scholars the world over hailed the statement of Pope John Paul I affirming
the separation of church and state as 'of historic importance.' Some even
detected in it a hint of Thomas Jefferson, the American founding father
who worked the concept into the U.S. Co institution.

To Filipinos steeped in this constitutional tradition, the Pope' remarks on


this point in his address before a group of diplomats are very significant.
This is especially true in the face of the over zealousness of some
members of the clergy whose activities in th name of social action tend to
endanger nationality

While it could be said that the provision in the Philippine Constitution on


the separation of church and state has traces of strong Jeffersonian
influence upon the framers of the fundamental charter, the sad experience
of the Filipinos at the hands of the meddling friars during three centuries of
Spanish occupation made them more sensitive to and acutely aware of
the concept. The rejection of a state supported church during the
Philippine Revolution only served to enhance this theory.

The Pope said the roles of government and church were of 'two
orders,sion and competence' of a 'unique' and 'special character.

The church's responsibilities 'do not interfere with purely temporal


technical apolitical affairs, which are matters for ... governments,' he said.

Significant, too, are the comments on the papal statement by such


religious leaders as Rev. Paul Boyle head of the Passionist Fathers. The
Pope,' according to Boyle 'not only states it as a principle, but as a
desirable one.'
What we have here,' according to Rev. Donald Campton, a Jesuit official
and one-time editor of the national Catholic weekly, America, 'is not just a
statement but a pledge that both on the national and international levels,
we don't want a state church.'

With the concept strongly reiterated and the lines once again clearly
drawn, it is to be hoped that we should not forget, rendering unto Caesar
what is Caesar's and to God what is God's. The Pope has made his
pledge, let no member of the Church make mockery of it.

Another Filipino historian, Carlos Quirino, writing about Jesuit- educated Ambassador
Leon Ma. Guerrero, author of the prize- winning "The First Filipino", a biography of
Rizal, characterized the Spanish friar as "the most dangerous of man — one combining
great power with a sense of devotion to his mission — ... He, then, became the great
antagonist of the first Filipino, Jose Rizal."

A significant fact seems to indicate a dangerous attempt on the part of the Catholic
hierarchy in the Philippines to subvert the laws of the Republic, if not the Republic itself.
For several years now, the ecclesiastical tribunal has been annulling marriages, despite
the fact that such marriages can no longer be annulled under our laws. Even marriages
of spouses with children had been nullified. It should be emphasized that the power to
annul marriages in the Philippines is vested only in the courts established by the State,
and not in ecclesiastical tribunals. The grounds for annulment of marriages void ab
initio or merely voidable, are expressly enumerated in the Civil Code.

In a newspaper interview, the executive vice official of the Metropolitan Matrimonial


Tribunal of the Archdiocese of Manila, in re-affirming the position of the Catholic Church
that it is which are considered void ab initio is annulling only marriage he rules of the
Church, would not specify the under t canonical grounds for annulment of marriages
considered void from the very beginning by the Church, stating merely that they are
"varied and diverse ... all of them are qualified terms with specific meanings very
different from the layman's understanding" (Times Journal, Modern Living, p. 1, Oct. 3,
1978). This answer is evasive. Such evasion is compounded by the fact that such
annulments by the Church are not published in any Catholic organ to enable the public
to know the facts of each case and the reasons for annulling the marriage, unlike the
cases decided by the civil courts.

However, Father Mario Nepomuceno, a Jesuit marriage counselor, stated before the
Interim Batasang Pambansa committee conducting hearings on the divorce bills, that
the Philippine Catholic church has in fact annulled many marriages on the grounds of
"moral incompatibility" or emotional immaturity on the part of one or both spouses (Daily
Express, pp. 1-2, Nov. 7, 1978). This ground finds its counterpart in Nevada and
Mexico, where "quickie" divorces are the fashion. The spouses, Mr. and Mrs. Jose M.
Meily both stated in their column "Husband and Wife" that the Catholic Church annuls
marriages on the ground of lack of full or sufficient consent on the part of the spouses,
which consent may be impaired by ignorance, no intention to co-habit, lack of
consciousness at the time of the marriage either caused by drugs or alcohol, error,
simulation of consent, conditional consent, force and/or fear, and lack of due discretion
(Philippine Panorama, p. 56, Nov. 12, 1978). Except for force and fear, all the other
qualifications as to the existence of full consent are not found in our civil laws.

The statement of Cardinal Sin that the State should not interfere with Church rulings on
marriages solemnized in church is a defiance of the law and the authority of the
Republic of the Philippines; because it implies that the rules of the Church on the
validity or nullity of marriages solemnized in church shall prevail over the laws of the
State on the subject (see "Bulletin Today", pp. I & 12, Oct. 5, 1978). This statement of
Cardinal Sin belies his affirmation that the Church does not interfere with or defy civil
laws but respects them (see "Bulletin Today", supra).

There is need of emphasizing that marriage is a social institution — not just a mere
contractual relation — whose sanctity is recognized and protected by the State, and is
not a matter within the exclusive jurisdiction of the Church. The solidarity of the Filipino
family and sanctity of the marital bond are the primary concern of the State, perhaps
even more than they are of the Catholic church, as the family unit constitutes the
strength of the nation. The Church tribunals in annulling marriages, is usurping the
power of the courts established by the State. Even the authority of the priests and
ministers to solemnize marriages is granted by State law, without which no priest or
minister of any religion or church or sect or denomination can legally solemnize
marriages. If the right of the Catholic church to annul marriages or to declare marital
unions as void ab initio under its rules were conceded, then there is no reason to deny
the same right to the ministers of the Protestant church and other religious sect or
denomination.

The annulment by the Church does not render the spouses exempt from possible
prosecution for bigamy, adultery or concubinage, should they contract a second
marriage or have carnal knowledge of, or co-habit with persons other than their
legitimate spouses of the first marriage which remains lawful in the yes of the laws
validly promulgated by the State.

If the Church tribunal believes that the marital union is a nullity from the very beginning
under the civil laws, then the Church should advise the parties to go to the civil courts.
But the Church should not arrogate unto itself State authority and the jurisdiction of the
courts created by the State.

To stress, in our country, there is only one sovereign, the Republic of the Philippines,
and not the Roman Catholic Church or any other church. Only the sovereign, the
Republic of the Philippines, can validly promulgate laws to govern all the inhabitants of
the Philippines, whether citizens or aliens, including laws concerning marriages,
persons and family relations. And only the courts established by the sovereign, the
Republic of the Philippines, can apply, interpret and enforce such laws. The exercise by
the Catholic church in promulgating rules governing marriages and defining the grounds
for annulment of the same, as well as establishing ecclesiastical tribunals to annul
marriages or to declare marriages void ab initio is a usurpation of the sovereign power
of 'the State.

While any Church or religious sect or denomination has the right to exist independent of
the Constitution and the laws of the country, such Church or religious sect or
denomination shall obey the Constitution and the laws of the State where it exists and
operates. The Church or any religious sect or denomination can invoke the protection of
the State whenever its existence and the persons of its heads, priests, ministers and
properties are imperilled or violated. But the Church or religious sect or denomination
has no legal or ecclesiastical power to subvert the State and its laws. No Church or any
religious sect or denomination can repeal or modify the provisions of the laws validly
promulgated by the State. hat the existing laws on annulment

If the Church believes t of marriages need to be amended, it should suggest such


amendments; but it should not enact or promulgate such proposed amendments.

The good Cardinal Jaime L. Sin would do well to heed Christ's reminder (which he
repeated at the Fourth Annual National Prayer Breakfast at the Manila Hotel on
November 30, 1978) to His disciples that His Kingdom is not of this world.
And all authorities of the Roman Catholic Church should likewise harken to the
injunction of the supreme Pontiff Pope John Paul 11, who on Friday, November 24,
1978, told the monks, friars and other religious that their duty is to lead a poor and
obedient life rather than be engaged in "social and political radicalism" (Times Journal,
page 1, November 25, 1978).

I therefore vote to grant the petition and to reverse the decision of the trial court.

ANTONIO, J., concurring:

I concur in the judgment, but dissent from the views expressed by Mr. Justice Fernando.
In resolving the issues in the case at bar, the main opinion failed to consider Section 15
of Article XV of the Constitution. This provision, which ordains the inviolability of the
separation of Church and State, appears more relevant to the case at bar, if we
consider the constitutional guarantee of religious freedom in its historical setting. It must
be recalled that during the period of Spanish colonial domination, the union of Church
and State in the Philippines was maintained and protected. As observed by one writer:

The Friar at this period was the full embodiment of Spanish colonial
donation. He was de facto a colonial civil administrator and a defender of
the sovereignty of the King of Spain over the subject Indioin most
provincial towns. Simultaneously he was de jure by operation of
the Patronato Real, the rightful parish priest of the same towns constituted
as parishes.

Since he was the only Spaniard in residence in most Philippine towns he


was not only a salaried government official he was entrusted with purely
civil functions. Thus, for instance, he drew up the tribute list of his parish,
the list, namely, of those Indios subject to the poll tax and to statute labor.
He was the director of the local elementary school. He supervised the
election of local officials whose confirmation in office by the colonial
government depended entirely upon his recommendation. He attended,
and often presided at the meetings of the town council, whose ordinances
had to be approved by him. Roads, bridges and other public works were
maintained under his orders and vigilance. He was the judge and guardian
of public morals.

The Friar therefore, was the promoter, defender, and protector of Spanish
rule in the Philippines. ... . 1

It is a historical fact that this arrangement spawned abuses on the part of the friars.
According to two noted historians, "one of the most unwelcome characteristics of
Spanish colonization was the encroachment of the church upon the jurisdiction of the
government, and the exercise of political power by the religious. In the central
government, representatives of the church or of the religious orders sat in the highest
councils. The friars were heavily represented in the powerful Permanent Commission on
Censorship, created in 1856, which had jurisdiction over 'the press and the introduction
of books in the archipelago, according to rules approved by both the civil and
ecclesiastical authorities.' In the towns the masses were subject to the will of the parish
priest, who dominated the local officials. Indeed, in the towns, the friars and priests
became integrated into the machinery of government: they 'had become the
government.' Thus, there was no effective system of checks and balances which could
curb abuses." 2 Said historians further noted that:
Justice Florentino Torres testified, also before the Philippine Commission
in 1900, that the friars were so powerful that they could intervene directly
in the election of municipal officials, and could obtain the transfer,
suspension, or even removal from office of civil officials, from the highest
to the lowest, including the governor-general. According to him, whoever
was suspected by the friars to be a filibuster no matter how worthy or
upright, '... became the object of all manner of governmental action, of
military proceedings, and of the cruelest outrages and vexations, because
against him who was accused of being a filibuster all manner of ill
treatment, imprisonment, deportation, and even assassination was
permitted.'3

Father Jose Burgos attributed the regressiveness of the Filipinos in his "Manifesto" in
the newspaper La Verdad" to the efforts of the friars to keep the poor Indios in
ignorance and rusticity and this constituted a constant obstacle to the progress and
advancement of the Filipinos. In "El Filibusterismo", Jose Rizal blamed by the tyranny
and abuses of the friars and Spanish officials, and especially their suppression of free
Ideas, as the cause of the social and political backwardness of the Filipinos.

It is in the anguish of their historical experience that the Filipinos sought a ban on the
intervention of the ecclesiastics in the management of government. Thus, the framers of
the Constitution of the First Philippine Republic (Malolos Constitution) of 1899 deemed it
necessary to prevent interference with, and domination of, the government by the
ecclesiastics by providing, in Article 5, Title Ill thereof, for the "separation of the Church
and the State." 4 Even before the establishment of the American colonial rule, there
was, therefore, this prevailing clamor of the Filipinos to erect a wall between the Church
and the State. In the instructions of President McKinley to the Philippine Commission
which laid out the policies of the United States in establishing a government in the
Philippines, he stated that "the separation of State and Church shall be real, entire and
absolute."

The separation of State and Church clause was again incorporated in the 1935 and
later in the 1973 Constitutions. Thus, the 1973 Constitution of the Philippines provides
that "the separation of church and state shall be inviolable." 5This should, therefore, be
taken into consideration in ascertaining the meaning and import of Section 8 of Article
IV of the Constitution, which states that "no religious test shall be required for the
exercise of civil or political rights." 6According to Story, the "no religious test" clause
contained in the United States Constitution was "not introduced merely for the purpose
of satisfying the scruples of many respectable persons, who feel an invincible
repugnance to any religious test or affirmation. It had a higher object; to cut off forever
every pretence of alliance between church and state in the national government. The
framers of the Constitution were fully sensible of the dangers from this source, marked
out in the history of other ages and countries, and not wholly unknown to our own. They
knew that bigotry was unceasingly vigilant in its stratagems to secure to itself an
exclusive ascendancy over the human mind; and that tolerance was ever ready to arm
itself with all the terrors of the civil power to exterminate those who doubted its dogmas
or resisted its infallibility." 7

It is clear, therefore, that the two provisions, taken together, ensure the separation of
Church from Government, while at the same time giving assurance that no man shall be
discriminated against because of his religious beliefs. The interrelation of these
complementary clauses was well summarized, thus: "The structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the
civil authority." 8 Indeed, it is a matter of history that "the union of government and
religion tends to destroy government and degrade religion." 9
It was partly to ensure that no particular religious sect shall ever again obtain a
dominant hold over civil government that Section 2175 of the Revised Administrative
Code was incorporated in our laws, Thus, it provides that "in no case shall there be
elected or appointed to a municipal office ecclesiastics ...". This Court applied this
prohibition in a case decided on March 14, 1955, or after the adoption of the 1935
Constitution. Thus, Vilar v. Paraiso, 10 the Court ruled that a minister of the United
Church of Christ was ineligible to assume the office of municipal mayor.

In its American setting, the separation of Church and State clause is justified "by the
necessity for keeping the state out of the affairs of the church, lest the church be
subordinated to the state; in Jeffersonian terms its function is to keep the church out of
the business of government, lest the government be subordinated to the church. Limited
powers of government were not instituted to expand the realm of power of religious
organizations, but rather in favor of freedom of actions and thought by the people." 11

It is, therefore, obvious that on the basis of its history and constitutional purpose, the
aforecited provisions of the Constitution furnish neither warrant nor justification for the
holding in the main opinion that Section 2175 of the Revised Administrative Code,
insofar as it includes ecclesiastics is inconsistent with the "religious freedom guaranteed
in the Constitution."

In Torcaso v. Watkins, 12 which is accorded persuasive weight in the majority opinion,


there was no showing that Torcaso was an ecclesiastic or a minister or officer of any
religious sect As a matter of fact, he was refused a commission to serve as notary
public because he would not declare his belief in God, as required by Article 37 of the
Maryland Constitution. The Supreme Court properly held that the requirement is a
religious test and "unconstitutionally invades the appellant's freedom of belief and
religion and therefore cannot be enforced against him."

On the other hand, the situation of private respondent is materially different. He is


admittedly a member of the Clergy, being a priest of the Roman Catholic Church. It is
for this reason that he is being prevented from assuming the office of municipal mayor,
and not because of his religious belief. The prohibition does not impinge upon his
religious freedom. He has the full and free right to entertain his religious belief, to
practice his religious principle and to teach his religious doctrine, as long as he does not
violate the laws of morality or the laws of the land. The separation of Church and State
clause in the Constitution appears to be a recognition of the teachings of history "that
powerful sects or groups might bring about a fusion of governmental and religious
functions or a concert or dependency of one upon the other to the end that official
support of the ... Government would be placed behind the tenets of one or of all
orthodoxies." 13

The intent of the constitutional provision is the vital part, the essence of the law. The
clear purpose of the framers of the Constitution and the understanding of the people
when they approve it, when ascertained, must be enforced. Indeed, in construing
provisions of the Constitution, the proper course is to start out and follow the true intent
of its framers and to adopt that construction which harmonizes best with the context and
promotes in the fullest manner the realization of the constitutional purpose.

I likewise take exception to the view expressed in the majority opinion that the
supremacy of the Constitution supplies the answer to the issue of the eligibility of a
member of the clergy to an elective municipal position. The application of Article XVI,
Section 2 of the 1935 Constitution, with its counterpart in Article XVII, Section 7 of the
1973 Constitution, concerning laws inconsistent with the Constitution, is inaccurate.
Article 2175 of the Revised Administrative Code, in including ecclesiastics within the
ambit of the prohibition, is not inconsistent with the explicit provision of the 1935
Constitution that "(n)o religious test shall be required for the exercise of civil or political
rights." 14 The absence of inconsistency may be seen from the fact that the prohibition
against "religious tests" was not original to the 1935 constitution. It was expressly
provided in the Jones Law 15 that "no religious test shall be required for the exercise of
civil or political rights" (Section 3). At the time of the passage of the Jones Law, the
Original Administrative Code (Act 2657) was already in force, having been enacted in
February 1916. In order to harmonize the Code with the Jones Law, the Code was
amended in October 1916, with the passage of Act 2711. The revision was made
expressly "for the purpose of adapting it to the Jones Law and the Reorganization
Act. 16Notwithstanding such stated purpose of the amendment, the prohibition against
the election of ecclesiastics to municipal offices, originally embodied in Section
2121 17 of the 2657, was retained. This is a clear indication that it is not repugnant to the
"no religious test" doctrine which, as aforestated, was already expressly provided for in
the Jones Law.

Considering that Section 2175 of the Revised Administrative Code, which "cut off
forever every pretence of any alliance between church and state", is in conformity with
Section 15 of Article XV of the Constitution, which ordains that "the separation of church
and state shall be inviolable, " it cannot, wherefore, be said that such statute, in
including ecclesiastics among those ineligible to municipal office, is violative of the
fundamental law.

I concur in the view incisively discussed by Chief Justice Castro that Section 2175 of the
Revised Administrative Code has not. been repealed or superseded by any other
legislation and, therefore, is the controlling law in the case before Us.

Since we cannot negate the clear and unequivocal intendment of the law, I therefore
concur in the judgment granting the certiorari.

MUÑOZ PALMA, J., dissenting:

I concur fully with the separate Opinion of Justice Claudio Teehankee on all the points
discussed therein.

As regards the final outcome of this case, with Justices Fernando, Concepcion Jr.,
Santos, Fernandez, and Guerrero who share our views on the legal issue raised in the
Petition, now voting with the Chief Justice and the four other Justices to grant the
petition because, "the vote is indecisive" for "while 5 members of the Court constitute a
minority, the vote of the remaining seven does not suffice to render the challenged
provision ineffective," and "under the circumstances, certiorari lies," and therefore the
aforementioned Justices "have no choice then but to vote for the reversal of the lower
court decision and declare ineligible respondent Father Margarito R. Gonzaga for the
office of municipal mayor." (See 1st paragraph, p. 3 of Majority Opinion) I can only state
that this reasoning surpasses my comprehension.

I believe that there would have been greater fidelity to the prevailing situation had the
petition for certiorari been denied due to the original lack of necessary votes to grant the
same, a status quo maintained insofar as respondent Father Gonzaga is concerned,
without a conclusive ruling pronounced on the legal issue as the required eight votes for
purposes of rendering judgment is absent. (See Sec. 9, Judiciary Act of 1948 as
amended by Art. X, Sec. 2[2]1973 Constitution)

As explained in detail in the separate Opinion of Justice Teehankee, the denial of the
Petition for Review would be in consonance with Sec. 11, Rules 56, Rules of Court.
I now submit the following observations on the matter of the disqualification of an
ecclesiastic to run for a municipal elective office.

The minority view asserts that Section 2175 of the Administrative Code which declares
ecclesiastics among others ineligible for election or appointment to a municipal office,
does not violate any provision of the Constitution and that in fact it strengthens the
constitutional provision on the separation of Church and State. Justice Ramon Aquino
particularly states: "to allow clergymen to take part in political affairs is to start the
process of reviving the theocracy of primitive societies, and past civilizations where the
priests, with his chants incantations hocus-pocus and abbracadabra played sinister
role", and "Rizal and the reformers would have labored in vain and would be betrayed if
the priest becomes a politician." (pp. 3, 4, 6 of Opinion)

I must voice my objection to the above-quoted sweeping statements which are also
echoed in the other Opinions of my distinguished Colleagues, as they savor of bias,
prejudice, and constitute an unjust indictment and dicrimination against priests, more
particularly, priest of the Roman Catholic Church.

It is not for me to pontificate on what is or should be the true mission of priests,


ministers, and nuns, the latter, according to Justice Aquino, also fall under the term
ecclesiastics for I would leave that matter to the conscience and judgment of the person
concerned and of his superiors in his church, but I will speak out in defense of a
person's constitutional right not to be dicriminated against, nor to be denied of equal
opportunities for work or employment, or withheld of equal protection of the laws in the
exercise of his civil or political rights, simply because he is garbed in a cassock or a
religious habit and has taken vows of service to God and his church.

One's religious vocation does not strip the individual of his rights and obligations as a
citizen of his country and as a member of the community where he serves. He is part of
society, and his having taken vows of poverty, humility, and love, renders him all the
more concerned with humanity, more particularly, with the social and economic
conditions of the people with whom he lives be they within or out of his flock. A minister
of the church is therefore not to be feared of playing a "sinister role" in the handling of
government affairs, rather it is the layman motivated by ambition and greed set out to
enrich himself and perpetuate his person in power while the poor becomes poorer and
the oppressed becomes more burdened with injustice, who is to be abhorred and
shunned.

The fears expressed by the Justice concerned date far back in the dark ages of history
and in truth are the result of the abuses of a few. Now we live in different times.
Concepts in government, politics, religion, and society as a whole, have undergone
drastic changes with the passing of the years. The Filipino people for their part have
kept faith with their goal of political independence and their love for freedom and justice
side by side with their Christian religion and all other faiths which fourish in the
prevailing spirit of ecumenism

The present role of the Roman Catholic Church was clearly expressed by Pope John
XXIII in his encyclical "Mater et Magistra" thus:

2. Christianity is the meeting point of earth and heaven. It lays claim to the
whole man, body and soul, intellect and will, inducing him to raise his mind
above the changing conditions of this earthly existence and reach upward
for the eternal life of heaven, where one day he w .11 find his unfailing
happiness and peace.

3. Hence, though the Church's first care must be for souls, how she can
sanctify them and make them share in the gifts of heaven, she concerns
herself too with the exigencies of man's daily life, with his livelihood and
education and his general temporal welfare and prosperity.

xxx xxx xxx

180. Moreover, in becoming as it were the lifeblood of these people, the


Church is not, nor does she consider herself to be, a foreign body in their
midst. Her presence brings about the rebirth, the resurrection, of each
individual in Christ; and the man who S reborn and rises again in Christ
never feels himself constrained from without. He feels himself free in the
very depth of his being, and freely raised up to God. And thus he affirms
and develops that side of his nature which is noblest and best. (The Social
Teaching of Pope John XXIII, p. 5; emphasis supplied)

The above may well be the objective of all religions.

What then have we to fear or guard against a minister of the church if ever the reins of
local government are placed in his hands? As one writer says: "When one gives himself
wholly to God, the noblest and best in his nature emerges; spontaneously he is
generous, noble, kind and compassionate; he will have the courage that comes from
disinterested love, and having these qualities, he will become a powerful influence for
god" And so, rather than a tool of evil, an ecclesiastic or a priest will be an effective
instrument of good in the community.

Of much interest, and I would give it much weight, is an 1894 decision of the Supreme
Court of Pennsylvania, United States of America, a country which jealousy guards the
enforcement of the principle of separation of Church and State. In Hysong et al v.
School District of Gallitzin Borough et al., the action was to restrain the school directors
of the District from permitting sectarian teaching in the common schools and from
employing as teachers sisters of the Order of St. Joseph, a religious society of the
Roman Catholic Church. The court of common pleas dismissed the action and
dissolved a preliminary injunction previously issued. An appeal was made to the State
Supreme Court and the latter dismissed the appeal and affirmed the order or decree.
Said the Court through Justice John Dean:

xxx xxx xxx

Unquestionably, these women are Catholics, strict adherents of Chat faith,


believing fully in its distinctive creed and doctrine. But this does not
disqualify them. Our constitution negatives any assertion of incapacity or
ineligibility to office because of religious belief. Article 1 of the bill of rights
declares: "All men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own conscience; ... no
human authority can in any case whatever control or interfere with the
rights of conscience. If, by law, any man or woman can be excluded from
public employment because he or she is a Catholic, that is a palpable
violation of the spirit of the Constitution for there can be, in a democracy,
no higher penalty imposed upon one holding to a particular religious belief
than perpetual exclusion from public station because of it. Men may
disqualify themselves by crime, but the state no longer disqualifies
because of religious belief. We cannot now, even if we wanted to, in view
of our law, both fundamental and statutory, go back a century or two, to a
darker age, and establish a religious test as a qualification for office. (30
Atl Rep. pp. 482-483, emphasis supplied)

But then it is strongly argued that the election or appointment of priests or even nuns to
municipal office will be violative of the separation of church and state. I strongly believe
that it is not so. As an eminent Constitutionalist puts it: what is sought to be achieved
under the principle of separation of church and state is that political process is insulated
from religion and religion from politics; in other words, government neutrality in religious
matters. 1 Thus, our Constitution provides that no law shall be made respecting an
establishment of religion.

Having an ecclesiastic or priest in a local government office such as that of the


municipal mayor will not necessarily mean the involvement of politics in religion or vice-
versa. Of course the religion of the man cannot be dissociated from his personality; in
truth, his religion influences his conduct, his moral values, the fairness of his judgment,
his outlook on social problems, etc. As stated in the Hysong decision, inevitably in
popular government by the majority, public institutions will be tinged more or less by the
religious proclivities of the majority, but in all cases where a discretion is reposed by the
law, it is to be assumed in the absence of evidence to the contrary, that the public
officer will perform his duty in the manner the law requires. I may add that there are
legal remedies available to the citizenry against official action violative of any existing
law or constitutional mandate.

WHEREFORE, I vote to deny this Petition for review and to affirm the decision of
respondent Judge.

AQUINO, J., concurring:

Reverend Father Margarito R. Gonzaga was elected in 1971 as mayor of Alburquerque


Bohol. Fortunato R. Pamil his opponent, filed a quo warranto proceeding against him.
Pamil invoked section 2175 of the Revised Administrative Code of 1917 which
disqualifies clergymen from holding a municipal office in the following peremptory terms:

SEC. 2175. Persons ineligible to municipal office. — In no case shall there


be elected or appointed to a municipal office ecclesiastics, soldiers in
active service, persons receiving salaries or compensation from provincial
or National funds, or contractors for public works of the municipality.

Father Gonzaga interposed the defense that section 2175 was impliedly repealed by
section 23 of the Election Code of 1971 which provides:

SEC. 23. Candidate holding appointive office or position. — Every person


holding a public appointive office or position petition, including active
members of the Armed Forces of the Philippines and every officer or
employee in government-owned or control]. ed corporations, shall ipso-
facto cease in his office or position on the date he files his certificate of
candidacy: Provided, That the filing of a certificate f candidacy shall not
affect whatever civil, criminal or ad. administrative liabilities which he may
have incurred.

It may be noted that section 2175 disqualifies from holding a municipal office soldiers in
active service as well as priests. The fact that tion 32 of the Election Code of 1971
allows active members of the Armed Forces of the Philippines to run for municipal
mayor may give the impression that Section 2175 was impliedly repealed by Section 23.
The lower court was of that opinion. It denied the petition for quo warranto. Pal
appealed by means of certiorari under Republic Act No. 5440.

I am of the opinion that the appeal is meritorious. The lower court erred in dismissing
the petition for quo warranto. A soldier in the active service may run for mayor because
under Section 23 he ipso facto ceases to be an army man from the time he files his
certificate of candidacy.

In contrast, a priest continues to be a priest notwithstanding his filing of a certificate of


candidacy for municipal mayor.

So, it cannot be concluded that section 23 of the Revised Election Code impliedly
abrogated the ineligibility of priests to run for municipal mayor as provided in section
2175. There is no irreconciliable repugnancy between section 23 and section 2175
insofar as ecclesiastics are concerned.

Section 2175 and section 23 are in pari materia with respect to soldiers in the active
service. There is no incompatibility between the two sections with respect to soldiers.
The disqualification in section 2175, as regards soldiers in the active service, is
compatible with their cessation as members of the armed forces when they file their
certificates of candidacy, as provided for in section 23. Soldiers can hold a municipal
office if they are no longer in active service. That can be implied from section 2175
itself.

For that matter, the automatic resignation from public office, under section 23, of public
officers who file their certificates of candidacy has no connection with the
disqualification in section 2175 of ecclesiastics from holding any municipal office. That
disqualification is not affected by the provision of the ipso facto resignation of public
officers who file their certificates of candidacy because an ecclesiastic is not a public
officer.

The view that section 23 impliedly repealed the disqualification of ecclesiastics from
holding a municipal office is strained and far-fetched.

So much for section 23 of the Election Code of 1971. Mr Justice Fernando, the Courts
leading authority on constitutional-law, tackled the question of respondent's eligibility
from the constitutional -,viewpoint although the issue of constitutionality was not raised
in the lower court. I disagree with the opinion that the provision of section 2175
disqualifying ecclesiastics from holding a municipal office is unconstitutional.

The term ecclesiastics refers to priests, clergymen or persons in holy orders or


consecrated to the service of the church. Broadly speaking, it may include nuns.

Conformably with section 2175, an ordained minister of the United Church of Christ was
held to be ineligible to hold the office of municipal mayor. His election to that office was
nullified in a quo warranto proceeding (Vilar vs, Paraiso, 96 Phil. 659).

It is argued that the disqualification of priests was abrogated by section 117), Article I I I
of the 1935 Constitution which provides that "no religious test shall be required for the
exercise of civil or political rights". It is assumed that the dis qualification is "inconsistent
with the religious freedom guaranteed by the Constitution (See sec. 8, Art. IV; sec.
18[21, Art. VIII, and sec. 8, Art. XII, 1973 Constitution).

I disagree with that conclusion. There is no incongruency between the disqualification


provision and the "no religious test" provision. The two provision can stand together.
The disqualification provision does not impair the free exercise and enjoyment or
religious profession and worship. It has nothing to do with religious freedom.

The disqualification of priests from holding a municipal office is an application of the


mandate for the separation of church and state (Sec. 15, Art. XV, 1973 Constitution; Art.
5, Malolos Constitution) which is based on Christ's admonition: "Render, therefore, unto
Caesar the things that are Caesar's and to God the things that are God's".
It should be borne in mind that the disqualification in section 2175 is a reproduction of
section 15 of Act No. 82 of the Philippine Commission which was passed on January
31, 1901, The Commission established that disqualification in spite of the "no religious
test provision found in article VI of the Federal Constitution. The constitutionality of that
disqualification had not been assailed up to 1971 when the instant case arose.

The disqualification of priests from holding municipal offices is a consequence of the


experience of our forefathers during the Spanish regime when the intervention of the
local curate in municipal affairs resulted in oppression, abuses, misery immorality and
stagnation. The revolution against Spain was partly an uprising against the friars whose
predominance in the country's affairs was characterized by Plaridel as the soberania
monacal.

There is a chapter in Rizal's Noli Me Tangere entitled Los Soberanos (The Rulers),
wherein the author answers the question: Quienes eran los caciques del pueblo?". He
noted that the town of San Diego was not ruled by Don Rafael Ibarra the richest
landowner, nor by Capitan Tiago, the moneylender, nor by the gobernardorcillo, nor by
God. It was ruled by the curate and the alferez. Rizal described the two rulers as
follows:

San Diego was a kind of Rome: not the Rome of the time when the
cunning Romulus laid out its walls with a plow, nor of the later time when,
bathed in its own and others' blood, it dictated laws to the world — no, it
was a Rome of our own times with the difference that in place of marble
monuments and coloseums it had its monuments of sawali and its cockpit
of nipa The curate was the Pope in the Vatican; the alferez of the Civil
Guard, the King of Italy on the Quirinal all, it must be understood, on a
scale of nipa and bamboo. Here as there, continual quarreling, went on,
since each wished to be the master and considered the other an intruder.
... Estos on los soberanos del pueblo de San Diego.

The flagitious thralldom which the friars imposed on the Filipinos, was an aspect of the
malignant social cancer that Rizal and the propagandists exposed and combated in
their writings.

The ecclesiastic is disqualified to run for an elective office in order to prevent, his church
from controlling the government. The same reason holds true with respect to soldiers in
active service. They should not meddle in politics so that no segment of the army can
overthrow the government,

Indeed, there is no reason when a priest should hold a civil office. He should hake
enough work in his hands ministering to the spiritual needs of the members of his
church. He can be an activist and he can champion social justice if lie is not a municipal
officeholder

Respondent Father Gonzaga is supposed to devote himself solely to spiritual matters


and not to temporal affairs such as the administration of a municipality. The objective of
the Roman Catholic Church is the salvation or redemption of souls. To attain that
objective, the priest under the Codex Juris Canonici is invested with the three-fold
function of teaching, directing and sanctifying in the tame of Jesus Christ. That means
the governance of the faithful and the ministry of divine worship or exclusive dedication
to the service of God and the sanctification of men in the manner of the priestly and
Levitical orders of the Old Testament (19 Encyclopedia Britanica, 1973 Ed., pp. 465-
466).

To nullify the disqualification provision would be a retrogressive step. To allow


clergymen to take part in political affairs is to start the process of reviving the theoracy
or primitive societies and past civilizations where the priests with his chants incantations
hocus-pocus and abbracadabra played a sinister role.

These observations are based on historical facts. I have n ingrained bias or prejudice
against priests. There are, an there have been good and saintly clergymen like the late
Fattier George J. Wilmann S. J. Philippine Deputy of th Knights of Columbus. Religion
plays an important role in enforcing the moral code and promoting order and morality in
society.

Rizal and the reformers would have labored in vain and would be betrayed if the priest
becomes a politician. He would be debased and his church would be degraded. The
evils arising from his intervention in municipal affairs would outweight the advantages, if
any.

A priest, who is disqualified from becoming a municipal employee, is not denied any
part of his religious freedom., or his political rights. A priest may have the civil right to
embrace the religious vocation but he does not have the constitutional right to be a
municipal employee. He can choose between being a municipal employee and being a
priest. He cannot be both. 'That arrangement is good for himself and his church and for
Society.

On the other hand, the statutory provision that only laymen can hold municipal offices or
that clergymen are disqualified to become municipal officials is compatible with the "no
religious test" provision of the 1935 Constitution which is also found in .9 tion 8. article
IV of the 1973 Constitution and in section 3 of the Jones law. They are compatible
because they refer to different things

The "no religious test" provision means that a person or citizen may exercise civil right
(like the right to acquire property) or a political right (the right to vote or hold office, for
instance) without being required to belong to a certain church or to hold particular
religious beliefs (See Miller vs. El Paso County 146, S. W. 2nd 1027, 67 C.J.S. 128,
note 48; 46 C. J. 939, note 44).

Thus, a constitutional provision prescribing that certain public officers shall be


Protestants requires a religious test Hale vs. Everett 53 NH 9, 67 C.J.S. 129, note 51;
46 C. J. 939, note 47. See State vs. Wilmington City Council, 3 Del 294, 67 C.J.S. 129,
note 52).

And, a constitutional provision requiring as a condition for appointment as a notary


public that a person should declare his belief in the existence of God or should not be
an atheist or an agnostic requires a religious test and is, therefore, unconstitutional.
That constitutional provision implements the historically discredited policy of "probing
religious beliefs by test oaths or limiting public offices to persons who have, or perhaps
more properly profess to have, a belief in some particular kind of religious concepts."
(Torcaso vs. Watkins, 367 U. S. 488, 494, 6 L. Ed. 2nd 982, 987).

The historical background of the "no religious test" provision clearly shows that it is
consistent with the disqualification of all clergymen from holding public office and that it
cannot be invoked to invalidate the statutory provision on disqualification.

The "no religious test" provision is a reaction against the Test Acts which once upon a
time were enforced in England, Scotland and Ireland. The Test Acts provided that only
those who professed the established religion were eligible for public office. Those laws
discriminated against recusants or Roman Catholics and non-conformists.

In England the religious test was first embodied in the Corporation Act of 1661. It
provided that all members of town corporations, in addition to taking the oaths of
allegiance and subscribing to a declaration against the Solemn League and Covenant,
should, within one year before election, receive the sacrament of the Lord's Supper
according to the rites of the Church of England. Later, the requirement was extended to
all public offices.

The English Test Act of 1678 provided that all peers and members of the House of
Commons should make a declaration against transubstantiation, invocation of saints,
and the sacrifice of the mass. During the later part of the nineteenth century the Test
Acts were abrogated.

In Scotland, the Test Act made profession of the reformed faith a condition of public
office. In Ireland, the principle of using the sacrament as a test was adopted. Oaths of
allegiance and declarations against Roman Catholic beliefs and practices were exacted.
Later, the tests were abolished in the two countries (21 Encyclopedia Britannica, 1973
Ed., 883-4).

To require that a person should be a Protestant in order to be eligible to public office is


different from disqualifying all clergymen from holding municipal positions. The
requirement as to religious belief does violence to religious freedom, but the
disqualification, which indiscriminately applies to all persons regardless of religious
persuasion, does not invade an ecclesiastic's religious belief He is disqualified not
because of his religion but because of his religious vocation.

Consequently, section 2175 can coexist, as it has co-existed for several decades, with
the "no religious test" constitutional provision. It is not unconstitutional. It strengthens
the constitutional provision for the separation of church and state.

I concur in the opinions of the Chief Justice and Justices Barredo, Makasiar and
Antonio. I vote for the reversal of the lower court's decision and the nullification of
Father Gonzaga's election as municipal mayor of Alburquerque Bohol.

Separate Opinions

CASTRO, C.J., concurring:

While I concur in the result, certain overriding considerations, set forth below, constrain
me to dissent from the opinion penned by Justice Fernando as well as the written
concurrence of Justice Teehankee and Muñoz Palma.

1.

I reject Justice Teehankee's argument that section 2175 of the Administrative


Code 1 has been repealed by section 23 of the Election Code of 1971. 2 Nor can I
accept the conclusion reached by Justice Fernando that the said provision of the
Administrative Code has been superseded or rendered inoperative by the specific
provisions of the 1935 and 1973 Constitutions that forbid the requirement of a religious
test for the exercise of civil or political rights.

The thrust of section 23 of the Election Code of 1971 is simple: what is the effect of the
filing of certificates of candidacy by appointive, elective and other officials of the
government? The said section is therefore of no relevance (except to the extent that it
allows members of the Armed Forces to run for elective positions). Upon the other
hand, section 2175 of the Administrative Code treats of a disparate matter, which is the
absolute disqualification of the classes of persons enumerated therein.

Nor does the proscription contained in the said section 2175 prescribe a
religious test for tile exercise of civil or political rights. I have searchingly analyzed this
provision, and I am unable to infer from it any requirement of a religious test.

On the complementary question of implied repeal, it is a time-honored cardinal rule of


legal hermeneutics that for a later provision of law to be considered as having repealed
a prior provision, there must be such absolute repugnance between the two that the
prior provision must give way. I do not discern any such repugnance.

2.

Since section 2175 of the Administrative Code has not been superseded, and has been
neither expressly nor impliedly repealed in so far as the absolute disqualification of
ecclesiastics is concerned, it is perforce the controlling law in the case at bar. Careful
note must be taken that the absolute disqualification is couched in the most compelling
of negative terms. The law reads: "In no case shall there be elected or appointed to a
municipal office ecclesiastics (emphasis supplied)

Should an ecclesiastic be erroneously allowed by this Court to hold a municipal office,


through the happenstance of a procedural technicality or by the mischief of
circumlocution or otherwise, then the Court would be particeps criminis in the negation
of the unequivocal and imperious mandate of the law. The law admits of no exception;
there can therefore be none. And the Court has no constitutional warrant to legislate
thru any manner of exercise in semantics.

3.

I wish to make of record some grave misgiving about allowing ecclesiastics to be


elected to governmental offices.

Our Lord Jesus Christ preached love, charity, compassion and mercy throughout His
earthly existence — and these four virtues, to my mind, make up His timeless gospel.
Unhappily, however, history has not infrequently been an anguished witness to religious
intolerance and persecution by ecclesiastics, whether they were Catholics or
Protestants.

Adverting to my own personal experience as a practicing Catholic, I still hear, once in a


great while, sermons or homilies by Catholic priests, delivered from the pulpit or from
the altar, declaring that the Catholic way of life is "the way to salvation," thereby
inescapably implying (without explicitly stating) that the adherents of other Christian
sects and other religious faiths may be damned from birth.

It is thus entirely possible that the election of ecclesiastics to municipal offices may
spawn small religious wars instead of promote the general community welfare and
peace - and these religious wars could conceivably burgeon into internecine
dimensions. Where then would we consign Pope John XXIII's ecumenism?

Should the majority of the mayoralties of the Philippines be someday occupied by


militant Catholic ecclesiastics, is it improbable that the next development will be a
determined nationwide campaign by the Catholic Church for the election of ecclesiastics
to our national legislative body? And if this eventuality should come, what then of our
cherished tradition of separation of Church and State? For my part, with history in
perspective, the obvious logical and inevitable consequence is too frightful to
contemplate.
In my view, all ecclesiastics — whoever they are, whatever their faiths, wherever they
may be — should essentially be pastors, immersing themselves around the clock in the
problems of the disadvantaged and the poor. But they cannot be effective pastors if they
do not dissociate themselves completely from every and all bane of politics.

TEEHANKEE, J., dissenting:

I dissent from the judgment reversing and setting aside respondent judge's appealed
resolution of March 4, 1972 which dismissed herein petitioner's petition below of quo
warranto for disqualification of respondent as the duly elected and qualified mayor of
Alburquerque, Bohol in the 1971 elections due to his being allegedly ineligible therefor
as an ecclesiastic and instead entering a new judgment ordering him to vacate the said
office on the ground of "there being a failure to elect."

I. I hold on the sole issue joined by the parties in the court below and in this Court on
appeal that the archaic Revised Administrative Code provision barring ecclesiastic inter
alia from election or reappointment to a municipal office has n repealed by the
provisions of the Election Code of 1971, as correctly ruled earlier by the Commission on
Elections (in denying a separate petition filed by the same petitioner for annulment of
respondent's certificate of candidacy) and by respondent judge in the case at bar.

The sole issue joined in the case at bar by the parties is on the purely legal question of
whether section 2175 of the Revised Administrative Code which bars from election or
appointment to a municipal office "ecclesiastics, soldiers im active service, persons
receiving salaries or compensation from provincial or national funds or contractors for
public work of the municipality" is still im force or has beam repealed by the provisions
of the Election Code of 1971, Particularly section 23 1 thereof which allows "every
person holdimg a public appointive office or position, including active members of the
Armed Forces" to run for any public elective office but provides for their cessation in
office ipso facto excludes eccessiastics and municipal public works contractors from
those declared ineligible or disqualified form funning for an elective office.

This is incontrovertible from the record.

Respondent judge's pre-trial order of January 25, 1972 defining the sole issue of law as
joined and submitted by the parties expressly records that

The parties agreed during this pre-trial conference that the question of
whether or not respondent resigned from the Catholic hierarchy as a priest
is immaterial to the issues raise in the instant resolution by the Court
purely on question of law, that is whether or not the provisions of the
Revised Administrative Code which prohibits ecclesiatics for m running for
municipal elective position. 2

and gave the parties ten days to file their respective memoranda, and declared the case
submitted for resolution upon expiration of the period.

Petitioner sole assingment of error in his applelants brief at bat is "(T)hat the court a
quo erred in ruling that section superseded by the provisions of Republic Act No. 6388,
otherwise known as the Election Code of 1971." 3 And his only argument in support
thereof-insofar as is relevant to this Court's judgement-was as follows:

The repealing clause of the Election Code of 1971 does not mention the
Revised Administrative Code or Section 2175 thereof as among those
expressly repealed. In the absence of inconsistency with any of the
provisions of the Election Code, Sec. 2175 is neither repeal. ed, expressly
or impliedly, nor revoked or superseded by any existing law, and therefore
must continue to stand in full force and effect.

It is the intent of Congress to retain prohibitions of ecclesiastics from


holding municipal office in order to maintain in. violate the great principle
underlying the Philippine Constitution, that is — THE COMPLETE
SEPARATION OF THE CHURCH AND STATE. The preservation of this
principle is precisely the moving spirit of the legislature in passing Sec.
2175 of the Revised Administrative Code and in EXCLUDING
ecclesiastics from the enumeration of persons in Sec. 23 Of the Election
Code of 1971. To allow ecclesiastics to run for a municipal office means
an absolute abandonment of this principle.

For a number of cases, the Supreme Court has disqualified ecclesiastics


from assuming a municipal office. In an Identical case of Pedro Villar vs.
Gaudencio Paraiso, No. L-8014, March 14, 1955; 96 Phil. 659, the
Supreme Court disqualified respondent Gaudencio Paraiso, then a
minister of the United Church of Christ, from the office of Mayor of Rizal,
Nueva Ecija for being an ecclesiastic and therefore ineligible to hold a
municipal office. 4

Now, prior to the filing of the case below, petitioner (who was the incumbent mayor of
Alburquerque, Bohol) had before the 1971 — elections filed a petition with the
Commission on Elections 5 for the annulment of the certificate of candidacy as an
independent candidate (Liberal Party guest candidate) for the elective position of mayor
of the municipality of Alburquerque, Bohol of his lone opponent, herein respondent
Reverend Margarito R. Gonzaga, Catholic parish priest of the municipality of Jagna
Bohol on the ground of the latter's being barred from election to said office as an
ecclesiastic.

The Comelec unanimously denied the petition, ruling that respondent was eligible for
the office since section 2175 of the Revised Administrative Code had been repealed by
force of the M. Mendoza, members.

Election Code of 1971 which in "Section 249 (thereof) expressly repeals R.A. No. 180,
R.A. No. 3588 and all other laws, executive orders, rules and regulations, or parts
thereof, inconsistent with the Code." 6

The Comelec ruled that soldiers in active service and persons receiving salaries or
compensation from provincial or national funds "are obviously now allowed to run for a
public elective office because under Sec. 23 of the Election Code of 1971 6 every
person holding a public appointive office or position, including active members of the
Armed Forces' shall ipso facto cease in their office or position on the date they file their
'certificates of candidacy. 'This implies that they are no longer disqualified from running
for an elective office."

The Comelec further ruled that as to the two remaining categories formerly banned
under the Revised Administrative Code, "ecclesiastics and contractors for public works
of the municipality are allowed to run for municipal elective offices under the
maxim, 'Inclusio unius est exclusio alterius', they being not included in the enumeration
of persons ineligible under the New Election Code. The rule is that all persons
possessing the necessary qualifications,"except those expressly disqualified by the
election code, are eligible to run for public office."

Respondent judge, expressing agreement with the Comelec ruling in that case, held
that respondent is not disqualified nor ineligible to hold the position of mayor of
Alburquerque to which he had been duly elected and proclaimed. Respondent judge
prescinded from the fact that respondent had resigned his position as parish priest of
another town, Jagna and his resignation accepted on September 7, 1971 by the Bishop
of Tagbilaran and that his authority to solemnize marriages had at his request of
September 7, 1971 been cancelled on October 22, 1971 by Director of the National
Library Serafin D. Quiason 7 all before the November, 1971 elections (unlike in Vilar vs.
Paraiso 8 wherein this Court upheld the trial court's refusal to give credence to the
"supposed resignation" of therein respondent as a minister of his church). He bypassed
also the well-taken procedural question that petitioner not having appealed the adverse
Comelec ruling in the earlier case to this Court was bound thereby as the law of the
case and could no longer bring this second action on the same question after his defeat
in the elections.

In my view, the Comelec ruling and respondent court's resolution agreeing therewith
stand on solid ground. As the Comelec stressed in its ruling, the Election Code of 1971
as the applicable law in this case expressly enumerates allthose
declared ineligible or disqualified from candidacy or if elected, from holding office, viz,
nuisance candidates under section 31, those disqualified on account of having been
declared by final decision of a component court or tribunal guilty of terrorism, election
overspending, solicitation or receipt of prohibited contributions or violation of certain
specified provisions of the Code under section 25, or having been likewise declared
disloyal to the constituted government under section 27 or those presidential appointees
who prematurely seek to run for elective office without complying with the compulsory
waiting periods of 150 days (for national office) and 120 days (for any other elective
office) after the termination of their tenure of office under section 78. All other persons
possessing the necessary qualifications and not similarly expressly declared ineligible
or disqualified by the said Election Code, such as ecclesiastics the respondent or
contractors for municipal public works cannot but be deemed eligible for public office.
Thus, ecclesiastics' eligibility for national office has universally been conceded and has
never been questioned.

As already stated above, appointive public office holders and active members of the
Armed Forces are no longer disqualified from running for an elective office, because
section 23 of the 1971 Election Code manifestly allows them to do so and provides that
they" shall ipso facto cease in (their) office or position on the date (they) file (their)
certificate of candidacy." Ecclesiastics and municipal public works contractors are no
longer included in the extensive enumeration of persons ineligible under the said
Election Code. Under the maxim of "Inclusio unius exclusio alterius" and the general
rule that all persons possessed of the necessary qualifications except those expressly
disqualified by the Election Code are eligible to run for public office, the ban against
them in section 2175 of the Revised Administrative Code must be deemed set aside
under the 1971 Election Code's repealing clause.

The wisdom or desirability of the elimination of such prohibitions are of course beyond
the province and jurisdiction of the courts. Aside from such prohibition being at war with
the Constitutional injunction that "no religious test shall be required for the exercise-of
civil or political rights," the Legislators must have considered that there was no longer
any rhyme or reason for the archaic ban against ecclesiastics' election to
a municipal office when there is no such ban against their running for national office and
after all, vox populi est vox Dei. As to the lifting of the ban against municipal public
works contractors, suffice it to state that there are other laws, e.g. the Anti-Graft and
Corrupt Practices Act which if properly enforced should provide more than adequate
safeguards for the public interests.

There is no gainsaying that the Election Code of 1971 is a subsequent comprehensive


legislation governing elections and candidates for public office and its enactment, under
the established rules of statutory construction, "(as) a code upon a given subject matter
contemplates a systematic and complete body of law designed to function within the
bounds of its expressed limitations as the sole regulatory law upon the subject to which
it relates, ... The enactment of a code operates to repeal all prior laws upon the same
subject matter where, because of its comprehensiveness, it inferentially purports to be a
complete treatment of the subject matter. ..." 9

The repeal of the ban is further made manifest in the light of the 250 sections of the
1971 Election Code since "(T)he intent to repeal all former laws upon the subject is
made apparent by the enactment of subsequent comprehensive legislation establishing
elaborate inclusions and exclusions of the persons, things and relationships ordinarily
associated with the subject. Legislation of this sort which operates to revise the entire
subject to which it relates, by its very comprehensiveness gives strong implication of a
legislative intent not only to repeal former statutory law upon the subject, but also to
supersede the common law relating to the same subject." 10

As a pure question of law, on the sole issue joined by the parties, therefore, I hold that
the ban in section 217 of the Administrative Code against the election of ecclesiastics
(and the three other categories therein mentioned) to a municipal office has been
repealed by the provisions of the Election Code of 1971, which nowhere in its all-
embracing and comprehensive text mentions-ecclesiastics (as well as the three other
categories in the aforesaid Administrative Code provision) as among those ineligible or
disqualified to run for public office (national or local).

II. On the constitutional dimension given motu proprio to the case in the main opinion of
Mr. Justice Fernando, by way of "Constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned" 11 , I concur with the
main opinion, concurred in by five other members of the Court, viz, Justices Munoz
Palma, Concepcion Jr., Santos, Fernandez and Guerrero that the archaic Administrative
Code provision declaring ecclesiastics ineligible for election or appointment to a
municipal office is inconsistent with and violative of the religious freedom guaranteed b
the 1935 Constitution 12 and that to so bar them from office is to impose a religious test
in violation of the Constitutional mandate that "No religious test shall be required for the
exercise of civil or political rights."

Both the 1935 Constitution (which is applicable to the case at bar) and the 1973
Constitution guarantee in practically Identical terms the fullest religious freedom. To
assure that there is no impediment to the fullest exercise of one's religious freedom, the
Constitution prohibits that there be a state established union and thereby decrees that
there must be separation of church and state. (The 1973 Constitution redundantly
stresses in its General Provisions, Article XV, section 15 that "(T)he separation of
church and state shall be inviolable."). The free exercise of one's religion and freedom
of expression of religious doctrines and beliefs (positive as well as negative) and the
freedom to perform religious rites and practices are guaranteed by the Constitution's
mandate that "no law shall be made ... prohibiting the free exercise (of religion)" and
that "the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed." In order to assure the fullest
freedom of the individual in this regard and to prevent that the State negate or dilute
religious freedom by according preference to one religious organization as against
others, the Constitution finally commands that "no religious test shall be required for the
exercise of civil or political rights."

It is conceded that the non-religious test clause constitutionally bars the state from
disqualifying a non-believer, an atheist or an agnostic from voting or being voted for a
public office for it is tantamount to a religious test and compelling them to profess a
belief in God and a religion. By the same token, the same clause is equally applicable to
those at the opposite end, let us call them the full believers who in their love of
God and their fellowmen have taken up the ministry of their church or the robe of the
priest: to disqualify them from being voted for and elected to a municipal office (under
the questioned Administrative Code provision) is to exact a religious test for the
exercise of their political rights for it amounts to compelling them to shed off their
religious ministry or robe for the exercise of their political right to run for public office.

Stated in modern context, the Satanist is concededly not disqualified under the
questioned Administrative Code provision from election to municipal office. To enforce
the same statute's disqualification against ecclesiastics is to wrongfully invade the
ecclesiastic's freedom of belief and religion and to impose upon him a religious test in
flagrant violation of the Constitution. In contrast to the Satanist who is not subjected to a
religious test and disqualified for his picking up Satan's robe against God, the
ecclesiastic is disqualified for professing the profoundent religious belief in God and
wearing His cross on his lapel — he is to be barred simply because he is an
ecclesiastic.

I hold, therefore, that aside from the strictly legal question presented by the parties and
correctly resolved by the Comelec in the earlier case and by the lower court in the case
at bar, to wit, that the ban in section 2175 of the Revised Administrative Code against
the election of ecclesiastics (among others) to a municipal office has been repealed by
the 1971 Election Code, it is also correct to declare by way of obiter dictum (since it has
not been raised or placed in issue in the case at bar) as the main opinion principally
holds, that this archaic provision of the Administrative Code of 1917 must also be
deemed as no longer operative by force of the constitutional mandate that all laws
inconsistent with and violative of the Constitution shall cease to be in force. 13

The main thrust of the five separate concurrences for upholding the questioned ban of
ecclesiastics from public (municipal office) is the fear of "religious intolerance and
persecution by ecclesiastics" and the "oppression, abuses, misery, immorality and
stagnation" wreaked by the friars during the Spanish regime. But it is not appreciated
therein that this was due to the union of the State and the Church then — a situation
that has long ceased since before the turn of the century and is now categorically
proscribed by the Constitution. As His Eminence, Jaime L. Cardinal Sin, recently
observed:

Union of the Church and the State invariably ends in the Church being
absorbed, manipulated or dominated by the State, or in the State being
dominated by the Church. Usually, it is the former eventuality that takes
place, for the Church possess no armed or coercive power comparable to
what the State has.

At the beginning of her history, the Church invested the kings of recently
converted countries with the office and title of Protectors of the Church.
This was all-right so long as the kings were good and holy men, like St.
Stephen of Hungary, or at least reasonable decent men, like Charlemagne
of France. but saintly and decent men are often succeeded by scoundrels
and the protectors - in the wry observation of the King of Slam wound up
'protecting the Church out of everything that she possessed.

When, in some rare instances, it is the Church that dominates the State,
the result is what we know as clericalism.

Both alternatives, it is obvious, are undesirable. When the Church is


dominated by the State, she becomes a tool for the furtherance of wordly
aims. And when the State is dominated by the Church, then the Church
tends to get confused as to her nature, Identity, role and sion The Church,
after an, is a supernatural society. Consequently, she is weakened when
she places her reliance on temporal power and resources rather than on
the grace of Almighty God. Clericalism provokes the natural reaction of
separation, by which is meant the isolation and strict confinement of the
Church to the sacristy. It is the placing the Church under house arrest. 14

Historians have noted that with the imposition of the separation of state and church by
the American regime, "(T)he Catholic Church, however, derived under the principle of
separation of Church and State positive benefits and advantages. Her freedom was
greatly enhanced. She was no longer subject to the various forms of supervision and
control imposed upon her during the Spanish regime. She was freed from government
intervention in the making of appointments to positions in the ecclesiastical system, in
the creation of parishes and in the establishment of institutions of religious character." 15

The Spanish era of "religious intolerance and oppression" and the new era of separation
of state and church easily led to the passage of the ban against ecclesiastics. There
was deep prejudice and resentment against the Spanish friars which rubbed off on the
Filipino Catholic parish priests. Catholics and the new religious groups of Aglipayans
and Protestants were reported to have harbored great mistrust of each other and fear
that one group would very likely use political power as an instrument for religious
domination over the others.

But it cannot be denied that the situation has radically changed since then. Specially
after Vatican 11 in 1965, the spirit of ecumenism, mutual respect, and cooperation have
marked the relations between Catholics, Protestants, Aglipayans, Iglesia ni Kristo and
other religious denominations.

For Catholics, the Vatican synod declared: "that the human person has a right to
religious freedom. This freedom means that all men are to be immune from coercion on
the part of the individuals or of social groups and of any human power, in such wise that
in matters religious no one is to be forced to act in a manner contrary to his own beliefs.
Nor is anyone to be restrained from acting in accordance with his own beliefs, whether
privately or publicly, whether alone or in association with others, within limits. 16

Vatican II also declared that "Cooperation among all Christians vividly expresses that
bond which already unites them ... It should contribute to a just appreciation of the
dignity of the human person, the promotion of the blessings of peace, the application of
Gospel principles to social life, the advancement of the arts and sciences in a Christian
spirit. Christians should also work together in the use of every possible means to relieve
the afflictions of our times, such as famine and natural disasters, illiteracy and poverty,
lack of housing and the unequal distribution of wealth. Through such cooperation, all
believers in Christ are able to learn easily how they can understand each other better
and esteem each other more, and how the road to the unity of Christians may be made
smooth.17

If the friars then grabbed the so-called friar lands through oppressive exploitation of the
masses, the priests of todayhave taken up the cudgels for the masses and are at the
forefront of their struggle for social justice and a just society.

The days are long gone when the Priest is supposed to confine himself to the sacristy
and devote himself solely to spiritual, not temporal, matters. Where the State fails of
falters, the priest must needs help minister to this temporal power has resulted from
their adjusting themselves to tile realities and imperatives of the present day world.

As already indicated above, it is to be noted that the only statutory prohibition was to
ban ecclesiastics from appointment or election to municipal office. There is no ban
whatsoever against their election to or holding of national office, which by its nature and
scope is politically more significant and powerful compared to a local office.
The national experience with ecclesiastics who have been elected to national offices
has shown that contrary to the unfounded fears of religious prejudice and narrow-
mindedness expressed in some of the concurring opinions, they have discharged their
task with great competence and honor, since there is basically no incompatibility
between their religious and lay offices, as witness the elections and participation of
Msgr. Gregorio Aglipay as delegate to the Malolos Congress of 1898, Minister Enrique
Sobrepena and Philippine Independent Church Bishop Servando Castro as delegates to
the 1934-1935 Constitutional Convention, Frs. Pacifico Ortiz and Jorge Kintanar and
three other priests as delegates to the 1971 Constitutional Convention. and again Fr.
Jorge Kintanar as member of the current Interim Batasang Pambansa.

As far as local offices are concerned, the best proof of the Filipino ecclesiastic's
capacity to discharge his political office competently and with detachment from his
religious ministry or priesthood is the very case of respondent Fr. Gonzaga, who as far
as the record shows has efficiently discharged the role of mayor of Alburquerque since
his assumption of office on January 1, 1972 up to the present to the satisfaction of his
constituents and without any complaints. The question of whether a priest or cleric
should exercise his political right of seeking public office, national or local, is after all
best left to the decision of his church and his own judgment. After all, it is to be
presumed that no responsible person would seek public office knowing that his
ecclesiastical duties would be a hindrance to his rendering just and efficient public
service. Here, respondent after his decision to run for election in his hometown of
Alburquerque, duly resigned his position of parish priest in another town, that of Jagna
Bohol long before the holding of the election. The main thing is that the Constitutional
mandate of no religious test for the exercise of one's civil or political rights must be
respected. The ecclesiastic is free to seek public office and place his personal merits
and qualifications for public service before the electorate who in the ultimate analysis
will pass judgment upon him.

Father Jose Burgos of the famed Gomburza martyrs took up in his manifesto of 1864
the battle of the native clergy against the Spanish friars who had found their parishes to
be lucrative positions and refused to give them up to the Filipino seculars who were
increasing in number and improving in caliber. He boldly accused the friars of
"enrichment, greed and immorality" and they marked him as their greatest enemy.

As the historians now assess it, "Indeed, whether or not Father Burgos meant it, his
manifesto of 1864 galvanized and fused the scattered and isolated areas of discontent
in the land, so that Filipino nationalism which had its birth pangs in Mactan finally
emerged full-grown. The travail of the Filipino clergy served to galvanize Filipino
nationalism, existing since Lapulapu in unintegrated and undeveloped form from
Tuguegarao to Taglibi from Sulu to Sarrat and Sagada. As in Spain itself, nationalism in
the Philippines needed an infusion of liberalism before it could acquire content and
direction. And, perhaps without meaning to do so, it was the peculiar contribution of
the Filipino clergy,much respected and most influential among the people, to give
substance and meaning to their fellow Filipinos' love of freedom and country. 18

Thus, "the dispute between secular and regular clergy over the parishes......... became a
nationalist movement, which joined forces with the lay reformists who had come into the
open ..." and "(T)he new movement blew like a wind of change through every level and
layer of society except the impregnable ranks of the friars. Then, suddenly, it became a
whirlwind that sucked three pious secular priests into its vortex For the Cavite Mutiny of
1872 exploded and they were accused of complicity, court-martialed and garroted. 19

It was our national hero, Dr. Jose Rizal, who "captured the historic galvanizing mission
which the martyr priests accomplished for their people and country, as well as the
cruelty and inhumanity of the revenge in the guise of justice inflicted upon them, when in
1891 he dedicated his second novel El Filibusterismo [Subversion] 20 to the three martyr
priests in the following words: ['The Church, by refusing to unfrock you, has put in doubt
the crime charged against you; the Government by enshrouding your trial in mystery
and pardoning your coaccused has implied that some mistake was committed when
your fate was decided; and the whole of the Philippines in paying homage to your
memory and calling you martyrs totally rejects your guilt.']" 21

It would indeed be an ironic twist of history if the martyrdom of Frs. Burgos, Gomez and
Zamora in the defense of freedom and the dignity and rights of the Filipino clergy which
galvanized Filipino nationalism and eventually overthrew the Spanish regime were to be
set at naught and the Filipino ecclesiastics were to remain banned from seeking public
office to serve their fellowmen, because the spectre of the friars who abused and
maltreated the people continues to haunt us and we would now visit their sins upon our
own clergy.

III. The disposition of the case and judgment granting quo warranto - notwithstanding
that there stand seven votes for affirming respondent judge's dismissal of
the quo warranto, namely, Justices Fernando, Teehankee, Muñoz Palma, Concepcion
Jr., Santos, Fernandez and Guerrero, on the ground that the questioned provision
barring ecclesiastics from municipal office has been superseded and rendered
inoperative by the no-religious test clause of the Constitution and by the Election Code
of 1971 and only five votes for upholding as in full force and effect the questioned ban
on ecclesiastics, namely, the Chief Justice and Justices Barredo, Makasiar, Antonio and
Aquino is contrary to the Rule of Court providing that where the Court in banc is equally
divided in opinion and no decision by eight Justices is reached (as required by Article X,
section 2 [2] of the 1973 Constitution for the pronouncement of a judgment) the
appealed judgment or order shall stand affirmed. Since the lower court dismissed
the quo warrantopetition and allowed respondent to remain in office, such dismissal
should stand affirmed, rather than the judgment now rendered granting the quo
warranto petition and ordering respondent to vacate the office.

As stated in the main opinion, seven Justices are for affirmance of the appealed
judgment "as the challenged provision is no longer operative either because it was
superseded by the 1935 Constitution or repealed" while five Justices hold that "such a
prohibition against an ecclesiastic running for elective office is not tainted with any
constitutional infirmity." 22 The writer of the main opinion, however, joined by four others
[namely, Justices Concepcion Jr., Santos, Fernandez and Guerrero] invoke the legal
principle that "the presumption of validity [of a law] calls for its application" and therefore
have voted with the minority of five [namely, the Chief Justice and Justices Barredo,
Makasiar, Antonio and Aquino] to reverse and set aside the judgment a quo and to
order that "respondent Gonzaga ... immediately ... vacate the mayoralty of the
municipality of Alburquerque, Bohol, there being a failure to elect. 23

As a preliminary observation, it should be noted that the judgment or dispositive portion


of the main opinion ordering respondent Gonzaga to vacate his office "there being a
failure to elect", is not correct, since said respondent was duly elected and
proclaimed after his candidacy and qualification for the office had been precisely upheld
before the holding of the 1971 elections by the Commission on Elections which
dismissed the same herein petitioner's petition with it to annul respondent's certificate of
candidacy, on exactly the same ground as here, based on section 2175 of the
Administrative Code, which dismissal was not appealed by petitioner and is therefore
the law of the case.

Be that as it may, the question confronting the Court is what is the applicable law in a
case like this where there is an inconclusive or indecisive vote of seven to five for
affirming the appealed judgment?
To begin with, the applicable law is not the Constitutional provision which requires a
qualified vote of at least ten members of this Court to declare unconstitutional a law,
treaty or executive agreement. 24 In Such constitutional cases, failure to reach the
qualified vote of ten members results in a declaration that the constitutionality of the
questioned law is deemed upheld. Concededly, the present action is not one to declare
unconstitutional the questioned provision banning ecclesiastics from municipal office.
The action was filed by petitioner precisely invoking the law's ban in order to disqualify
respondent. The lower court merely sided with the Comelec's ruling in an earlier case
filed by petitioner for the same purpose of disqualifying respondent, and dismissed the
case below upholding respondent's defense that the law had been repealed by the 1971
Election Code. This was the sole issue both before the lower court and this Court.

As shown hereinabove, the sole issue joined by the parties in the court below and in this
Court on appeal was whether or not the questioned provision banning ecclesiastics from
municipal office has been repealed or not by the 1971 Election Code. Concededly, a
minimum of eight votes as required by the Constitution for the pronouncement of a
judgment is needed to declare that the same has been repealed under this sole issue,
or superseded or rendered inoperative by virtue of the 1935 Constitutional provisions
guaranteeing freedom of religion and prohibiting religious tests for the exercise of civil
and political rights under the supplementary issue of repeal by force of the Constitution
raised motu proprio in the main opinion. 25

The applicable law, then, in non-constitutional cases such as that at bar is found in Rule
56, section 11 of the Rules of Court, which was designed specifically to cover such
cases where the necessary majority of a minimum eight votes "for the pronouncement
of a judgment, 26 cannot be had and provides that the appealed judgment shall stand
affirmed.

The appealed judgment in the case at bar dismissing the quo warranto action
must stand affirmed under the cited Rule which provides that:

SEC. 11. Procedure if opinion is equally divided. — Where the court in


banc is equally divided in opinion, or the necessary majority cannot be
had, the case shall be reheard, and if on re- hearing no decision is
reached, the action shall be dismissed if originally commenced in the
court; in appealed cases, the judgment or order appealed from shall stand
affirmed and on all incidental matters, the petition or motion shall be
denied. (Rule 56)

As restated in Moran's Comments, "(I)n appealed cases, the above provision states that
the judgment or order appealed from shall stand affirmed. This refers to civil cases, the
rule in criminal cases being that provided by section 3 of Rule 125, which states that in
such cases the judgment of conviction of the lower court shall be reversed and the
defendant acquitted. If the judgment appealed from declares a law or a treaty
unconstitutional, or imposes death penalty and the concurrence of at least eight [now
ten Justices cannot be had, the Supreme Court shall so declare, and in such case the
validity or constitutionality of the act or treaty involved shall be deemed upheld, or the
penalty next lower to death shall be imposed." 27

Apparently, the five members of the Court headed by the writer of the main opinion
found themselves in a conflict between the principle of presumption of validity of a law
which normally calls for its implementation by the executive department - until declared
invalid by the courts and their view that the challenged legal provision barring
ecclesiastics from municipal office is no longer operative either because it has been
superseded by the Constitution or repealed by the 1971 Election Code. In such case, it
is submitted with all due respect that they erred in joining votes with the minority of five
opining to the contrary, for the cited Rule expressly provides that in such a case of
a split Court with neither side obtaining the necessary number of votes for the
pronouncement of a judgment upholding their conflicting views, the appealed judgment
shall stand affirmed.

For the appealed judgment to stand affirmed does not mean that "the Court would
be particeps criminis in the negation of the unequivocal and imperious mandate of the
law." 28 It would simply be the law of the case, because of the inconclusive vote. It is just
the same as if petitioner had not appealed or if his appeal had been dismissed for
failure to prosecute the same.

If the lower court had ruled in favor of petitioner and respondent were the appellant, the
appealed judgment (against respondent in this example) would stand affirmed, despite
the seven votes in his favor. But the vote would be inconclusive just the same. The
issue of whether or not the challenged law is deemed superseded by the Constitution or
repealed by the 1971 Election Code would have to be left for another case and another
time.

Put in another way, even assuming that the lower court erred in adjudging that the
questioned law has been repealed, under the cited and applicable Rule, this Court
would need 8 votes to overturn such judgment, just as it would need the same number
of votes for this Court to overturn the judgment if it had been the other way around. This
is the necessary consequence in cases where this Court cannot arrive at a majority one
way or the other.

The same situation has happened more frequently in appeals from criminal convictions
by the lower courts wherein the applicable rule is the reverse, with Rule 125, section 3
providing that where the necessary majority of eight votes for affirming the judgment of
conviction or acquitting the accused cannot be had, "the judgment of conviction of the
lower court shall be reversed and the defendant acquitted. 29

The provisions of the Penal Code and Statutes are generally absolute provisions
against the commission of the criminal acts therein defined. But the failure of the Court
to obtain the necessary majority of eight votes (in non-capital cases) for
the pronouncement of a judgment affirming the conviction (and resulting in the acquittal
of the accused) does not connote in any manner that this Court has thereby become
a particeps criminis in the violation of the criminal law. Neither does it mean that the
Court has thereby rendered the penal statute void or ineffectual with the accused's
acquittal in the specific criminal case. To cite an example, in the case of Ramirez vs.
Court of Appeals, 71 SCRA 231 (June 10, 1976), the accused was therein acquitted of
the crime of falsification on a 4 to 5 vote (out of 11 Justices with 2 abstentions), but it
cannot be said that the prevailing opinion thereby obliterated the crime of falsification
under Art. 172 of the Revised Penal Code simply because of the alleged repeal of CB
Circular 20 by CB Circular 133 which served as the main reason for dividing the Court in
the case.

If the majority were to follow the same approach in these criminal cases where there is
a similar division of the Court as to whether a particular penal statute or provision has
been repealed or rendered inoperative and the necessary majority cannot be had, as in
the cited case of Ramirez, supra - then even those who vote for acquittal (as those who
voted for declaring the questioned law inoperative) must cross over and join those
voting contrarily for affirmance of conviction in order to uphold the principle applied
herein by the majority that "the presumption of validity [of a law] calls for its application"
— in violation of the cited Rules governing a divided Court's failure to reach the
necessary majority.

In closing, it should be borne in mind that petitioner's action to disqualify respondent and
to be proclaimed as Alburquerque Bohol mayor in his stead is an exercise in futility
because (a) the office's term has long expired and (b) more importantly, even if the term
may be deemed as not having expired, this Court has consistently held that a petitioner
in such disqualification proceedings cannot be proclaimed as elected to the office (in
lieu of a disqualified respondent) which is the only thing that petitioner has vainly sought
herein — to be proclaimed and seated as mayor vice the respondent who defeated him
in the election. As held in Vilar vs. Paraiso, supra: 30 "(A)s to the question whether,
respondent being ineligible, petitioner can be declared elected, having obtained second
place in the elections, our answer is simple: this Court has already declared that this
cannot be done in the absence of an express provision authorizing such declaration.
Our law not only does not contain any such provision but apparently seems to prohibit
it,"

BARREDO, J., concurring:

My vote is to grant the petition and to declare respondent Rev. Fr. Margarito R.
Gonzaga disqualified under Section 2175 of the Revised Administrative Code from
being mayor of Alburquerque Bohol, which position he has assumed by virtue of his
winning in the local elections held in 1971, for which reason he should be ordered to
vacate the same. I would, however, limit the grounds for my vote to the considerations
hereinunder stated, for it is not the danger of any form or degree of church control of
state affairs that I perceive in allowing an ecclesiastic to be elected as mayor, the
occurrence of such a contingency being probably quite remote now with the character of
the Filipino clergy who are a far cry from the friars during the Spanish times. I just
cannot imagine how a duly ordained minister of God whose sacred life mission is
supposed to be to serve God and to advance and defend the interests of His church
above all other interests can properly act as a government official committed to enforce
state policies which may conflict with the fundamental tenets of that church.

I agree with the Chief Justice and Justice Makasiar that the trial court's ruling, following
that of the Commission on Elections, to the effect that Section 2175 of the Revised
Administrative Code has been repealed by Section 23 of the Election Code of 1971 is
not legally correct. More than merely declaring ecclesiastics ineligible to a municipal
office, the Administrative Code provisions enjoins in the most unequivocal terms their
incapacity to hold such office whether by election or appointment. Indeed, the word
"ineligible" in the title of the section is inappropriate. If said Election Code provision has
any incompatibility with the above-mentioned Administrative Code provision, it is only by
implication and only insofar as members of the Armed Forces of the Philippines are
concerned, in the sense that said army men are now allowed to run for election to
municipal offices provided that they shall be deemed to automatically cease in their
army positions upon the filing of their respective certificates of candidacy. Section 23
does not define who are qualified to be candidates for public elective positions, nor who
are disqualified. It merely states what is the effect of the filing of certificates of
candidacy by those referred to therein, which do not include ecclesiastics Thus, the
inconsistency contemplated in Section 249 of the Code as productive of repealing effect
does not exist in the case of Section 23 thereof vis-a-vis Section 2175 of the Revised
Administrative Code.

Accordingly, the only way respondent Fr. Gonzaga can legally hold to the mayorship he
is occupying, is for Section 2175 to be declared as violative of the constitutional
injunction in Section 1 (7) of the 1935 Constitution of the Philippines which was in force
in 1971 that "No religious test shall be required for the exercise of civil or political rights"
as contended by him. On this score, it is my considered view that there is no
repugnancy at all between Section 2175, on the one hand, and the freedom of religion
provision of the Old Constitution, which, incidentally, is reproduced textually in the New
Charter, and the principle of separation of church and state, on the other.
The "no religious test" provision is founded on the long cherished principle of separation
of church and state which the framers of our 1973 Constitution opted to include as an
express provision in the fundamental law by ordaining that such separation "shall be
inviolable" (Art. XV, Sec. 15), not as a redundancy but in order to comprehend situations
which may not be covered by the provisions on religious freedom in the Bill of Rights.
(Art. IV, Sec. 8.) It simply means that no public office may be denied to any person, by
reason of his religious belief, including his non-belief. Whether he believes in God or
not, or, believing in God, he expresses and manifests his belief in one way or another,
does not disqualify him. But when he becomes a religious or an ecclesiastic he
becomes one who does not merely belong to his church, congregation or denomination
or one who entertains his own religious belief; he becomes the official minister of his
church with distinct duties and responsibilities which may not always be compatible with
the posture of absolute indifference and impartiality to all religious beliefs which the
government and all its officials must maintain at all times, on all occasions and in every
aspect of human life and individual endeavor precisely because of the separation of
church and state and the full enjoyment of religious freedom by everyone. There is no
known safeguard against witting or unwitting, patent or latent discrimination that a
religious may lapse into when confronted with a situation where opposing religious
interests maybe involved. And yet, it is in such a predicament that paramount public
interest would demand that he should neither hesitate nor equivocate. Having in mind
the imperfection of all human beings, I cannot believe that any religious, found in such
unenviable situation would be able to successfully acquit himself from all suspicion of
concealed interest in favor of his own church. What is worse, any attempt on his part to
look the other way just to avoid such suspicion of partiality might only result in more
impropriety or injustice. Indeed, as I see it, even the day of perfect and sincere
ecumenism is not yet here.

It is already a matter of deep anxiety for everyone in any political unit concerned that a
devout Catholic or Protestant or Muslim layman holding a public office therein may find
it extremely difficult, if not impossible, to dissociate his religious thinking from his
judgment or motivations as he acts in the performance of his duties. Certainly, it would
be a graver problem if the official should happen to be a religious minister, since his
graver responsibility to his church in the premises could imaginably outweigh in his
decision process the demands of the general public interest. As a simple matter of good
government principle, the possibility of such an undesirable contingency must be
avoided. To my mind, it is just as objectionable for an official of the civil government to
try to take part in running any religious denomination or order, as it is for a religious to
involve himself in the running of the affairs of government as an official thereof. The
observations of Justice Teehankee anent some religious leaders named by him who
have occupied positions in the national government either as delegates to the
Constitutional Conventions of 1934 and 1971 or as members of the national legislature
are, I regret to say, misplaced. Apart from the fact that they were too few to decisively
impress the inalienable religious principles of their respective churches on the ultimate
decisions of the conventions or the legislative bodies where they sat regarding matters
in which said churches were interested, one has to be utterly naive to expect that Father
Kintanar for instance, will not be guided exclusively by the doctrines and declared
official position of the Roman Catholic Church related to such controversial subjects as
divorce, annulment of marriages and birth control, to cite only a few. Withal, Section
2175 covers only municipal offices, for the simple reason that it is in the lowest levels of
the government structure where the officials constantly deal directly and personally with
the people that the risks of religious influences in the daily affairs of public
administration can easily be exerted to the detriment of the principle of separation of
church and state. My impression is that if any religious is now being allowed to hold any
particular office that requires religious background and approach, it is mostly in
conjunction with other officials with whom he can only act in common, such as, in the
Board of Pardons and Parole, where he can exert at most only a degree of
recommendatory influence and he decides nothing conclusively for the state. In any
event, the spectacle of a priest and a politician being one and the same person may vet
be an attempt to mix oil with water, if it would not be doing what the Scriptures do not
permit: honor both God and Mammon

Of course, a Filipino priest or a nun does not cease to be a citizen endowed with all
political rights as such. I maintain, however, that the choice by any religious of the high
and noble vocation of dedicating his or her life to God and His Church should, in the
very nature of things and for the best interests of tile community as a whole, be deemed
as a virtual waiver or renunciation of the prerogative to hold a public office, for the
reasons of inevitable incompatibility I have discussed earlier, and it is but logical that the
law give effect to such renunciation, for the sake of both, the church and the state. As
Mr. Justice Ramon C. Aquino aptly puts it, it is not his or her religious belief but the
exclusivistic character of the vocation he or she has embraced that constitutes the bar
to any political ambition he or she may entertain. Just as the very Ideal itself. of religious
freedom has been held to yield to the demands of the public interest, it is not illogical,
much less legally untenable, to construe the "no religious test" provision in th e
Constitution as not constituting a prohibition against banning an ecclesiastic from
holding a municipal office due to the incompatibility between his commitment to his
vocations, on one hand, and his loyalty and dedication to his public office both of which
require his full and entire devotion.

MAKASIAR, J., concurring:

It grieves me to dissent on constitutional and legal grounds from my brilliant and learned
colleagues, Justice Enrique M. Fernando, Justice Claudio Teehankee and Justice
Cecilia Munoz Palma, whose scholarly dissertations always command respect; because
my discusssion will be a catalogue of the dangers po by the Church in which I was born
and nurtured like my two sons and two daughters - the Roman Catholic Church, in
whose service my late lamented father wanted to be, studying as he did for the
priesthood in a Catholic seminary

I fully concur with the no less incisive opinions of Chief Justice Fred Ruiz Castro, and
Justices Antonio P. Barredo, Felix Q. Antonio and Ramon C. Aquino. I only wish to add
some thoughts avoiding as far as possible restating the citations in their opinions.

But first, we shall apply the legal scalpel to dissect Section 23 of the Election Code of
1971, which, in the opinion of the trial judge, impliedly repealed Section 2175 of the
Revised Administrative Code. This issue which was not discussed extensively by Mr.
Justice Fernando in his opinion, is the centerpiece of the opinion of Mr. Justice
Teehankee who concurs with him.

The two alleged conflicting legal provisions are hereunder quoted:

Sec. 23. Candidate holding appointive office or position. Every person


holding a public appointive office or position, including active members of
the Armed Forces of the Philippines and every officer or employee in
government-owned or controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of candidacy: Provided,
That the filing of a certificate of candidacy shall not affect whatever civil,
criminal or administrative liabilities which he may have incurred (Election
Code of 1971, emphasis supplied).

Section. 2175. Persons ineligible to municipal office. — In no case shall


there be elected or appointed to a municipal office ecclesiastics, soldiers
in active service, persons receiving salaries or compensation from
provincial or national funds, or contractors for public works of the
municipality (Revised Administrative Code, emphasis supplied).

Basic is the rule that implied repeals are not favored unless there is such an
irreconcilable repugnancy between the two laws that both statutes cannot stand
together.

It is patent that the two legal provisions are compatible with each other. Section 23 of
the Election Code does not enumerate the persons disqualified for a public elective or
appointive office; but merely prescribes the effect of filing a certificate of candidacy by
an appointive public officer or employee or by active members of the Armed Forces of
the Philippines or by an officer or employee in a government-owned or controlled
corporation.' Section 23 states that upon the filing of his certificate of candidacy, such
appointive officer or employee or member of the Armed Forces shall "ipso facto cease
in his office or position ..." The obvious purpose is to prevent such candidate from taking
advantage of his position to the prejudice of the opposing candidates not similarly
situated.

On the other hand, Section 2175 of the Revised Administrative Code provides for an
absolute disqualification and enumerates the persons who are so absolutely disqualified
to run for or be appointed to a municipal office which enumeration includes not only
public officers but also private individuals like contractors and ecclesiastics Section 23
of the Election Code of 1971 applies only to public officers and employees, including
those in government-owned or controlled corporations and members of the Armed
Forces, but not to private citizens, like contractors or ecclesiastics Hence, a contractor
who is not employed in any government office or government-owned or controlled
corporation or in the Armed Forces, need not vacate his private employment., if any,
upon his filing a certificate of candidacy. likewise, if he were qualified in the absence of
the absolute e disqualifications in Section 2175 of the Revised Administrative Code, a
priest or minister is not ipso facto divested of his position in his church tile moment he
files his certificate of candidacy.

The fact that the Commission on Elections prior to the elections in 1971 denied
petitioner's petition for th annulment of the certificate of candidacy of private respondent,
is not conclusive on the Supreme Court, the final arbiter on legal questions and does
not constitute res judicata. The COMELEC's opinion may be persuasive, but never
binding on the Supreme Court. Moreover, the petition should have been dismissed as
premature then, because the issue might have been rendered moot and academic
should the candidate sought to be disqualified before the election loses the election. At
any rate, Section 219 of the Election Code of 1971 authorizes any voter to file quo
warrantoproceedings against any local officer-elect on the ground of ineligibility within
fifteen (15) days after the proclamation of his election. The adverse opinion on the part
of the COMELEC prior to the election, did not bar the petition for quo warranto under
Section 219 of the Election Code of 1971.

Moreover, unlike the 1973 Constitution, the 1973 Constitution did not est n the
COMELEC any power to decide contests relating to the election, returns and
qualifications of elective officials, whether national or local. Under the 1973 Constitution
the COMELEC is not conferred the power to decide contests relating to the election,
returns and qualifications of municipal elective officials. However, the 1973 Constitution
constitutes the COMELEC the sole judge of all contests relating to the elections, returns
and qualifications of the members of the National Assembly and the elective provincial
and city officials (Section 2[21, Art. XII, 1973 Constitution); but su h determination by the
COMELEC is still subject to review by the Supreme Court (Section I [1], Art. XI 1, 1973
Constitution), which therefore is the ultimate arbiter of such election issues.
If the implied repeal theory were sustained, then Section 23 of t tie Election Code of
1971, if construed to allow ecclesiastics and other ministers of religion to run for or be
appointed to a municipal office collides with tile Constitution as the same violates the
separation of church and state expressly enjoined b Section 15 of Article XV, Section
18(2) of Article VIII, and Section 8 of Article IV of the 1973 Constitution for the reasons
hereinafter stated.

II

WE shall proceed to marshal the forces with which to lay siege on the citadel erected by
Mr. Just ice Fernando to sustain his theory that Section 2175 of the Revised
Administrative Code was abrogatd by the no-religious test clause of Section 1(7) of the
Bill of Rights [Art. III of the 1935 Constitution, which is re-stated as Section 8 of the Bill
of Rights (Article IV) of the 1973 Constitution.

As above stated, repeals by implication are abhorred unless there is a clear showing of
complete and total incompatibility between the two laws. And WE believe that there is
no such irreconcilable repugnancy between Section 2175 of the Revised Administrative
Code and the no-religious test clause of the Bill of Rights.

On the other hand, the proposition advanced by my brethren, Justices Fernando and
Teehankee, clashes inevitably with the doctrine of separation of Church and State
expressly prohibited by Section 15 of Article XV of the 1973 Constitution, condemned by
Section 8 of the Bill of Rights (Article IV), and proscribed by Section 8 of Article XII and
Section i 8(2) of Article VI I I of the 197 3 Constitution.

Section 15 of Article XV categorically declares that:

The separation of Church and State shall be inviolable.

Section 8 of the Bill of Rights (Article IV) reads:

No law shall be made respecting an establishment of religion, or


prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference shall
forever be allowed. No religious test shall be required for the exercise of
civil or political rights.

Section 18(2) of Article VI I I states:

No public money or property shall ever be appropriated, applied, paid, or


used, directly or indirectly, for the use, benefit, or support of any sect
church denomination, sectarian institution, or system of religion, or for the
use, benefit, or support of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher, minister,
or dignitary, is assigned to the armed forces, or to any penal institution on
government orphanage or leprosarium.

Section 8 of Article XII commands that:

No religious sect shall be registered as a political party, ...

To stress, Section 2175 of the Revised Administrative Code, does not provide for a
religious test for the exercise of civil and political rights. The said section merely defines
a disqualification for a public office. It prohibits priests or ministers of any religion, and
the other persons specified in said Section 2175, from running for or being ap silted to a
municipal public office. It does not deprive such specified individuals of their political
right of suffrage — to elect a public official.

A citizen, who Is a Catholic, Protestant, Muslim, Aglipayan or a member of the Iglesia ni


Kristo, but who is not a priest or a minister of any religion, sect or denomination, can run
for a municipal elective office. Section 2175 does not inquire into the religion or lack of it
on the part of an ordinary citizen. If it does, all citizens would be disqualified for election
or appointment to a local public office; and there would be no need to single out soldiers
in active service, persons receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality, along with ecclesiastics All
these persons. whether priests or ministers or soldiers or contractors or employees of
the national or provincial government, profess some religion or religious belief. To
repeat, one is disqualified under Section 2175, not by reason of his religion or lack of it,
but because of his religious profession or vocation.

The separation of Church and State implicit in the Bill of Rights (Sec. 1, par. 'i of Art. III
of the 1935 Constitutions and Sec. 8, Article IV, 1973 Constitution), has been expressly
stated and therefore stressed in Section 15 of Article XV of the 1973 Constitution, which
categorically enjoins that "the separation of Church and State shall be inviolable." This
basic principle which underlies the structure of our government was the sharp reaction
to the historical lesson learned by mankind in general that the fusion of government and
religion tends to destroy government and degrade religion Engel vs.Vitale 370 US 421
because it invariably degenerates into tyranny. The terror that was the Inquisition
claimed for its victims physicist and astronomer Galileo Galilei and philosopher
Giordano Bruno among thousands of other victims.

The view herein enunciated by Justice Fernando and Teehankee will again usher in the
era of religious intolerance and oppression which characterized the Spanish regime of
about 400 years in the Philippines. It will resurrect in our political life that diabolic
arrangement which permits tile "encroachment of Church upon the jurisdiction of the
government, and the exercise of political power by tile religious, in short, the union of
the State and the Church — which historically spawned abuses on the part of the friars
that contributed to the regressiveness, the social and political backwardness of the
Filipinos during tile Spanish Era and bring about a truly theocratic state — the most
dangerous form of absolutism, according to Lord Acton that great liberal Catholic and
illustrious scholar (Senator Claro M. Recto "The Evil of Religious Test in our Democracy
, speech delivered before the Central Philippine University on February 19, 1960).

When a priest is allowed to run for an elective position, in the stirring language of the
erudite Claro M. Recto, he same will re-establish "a tyrannical regime that engaged in
the most vicious political and religious persecution against dissenters. The Church in
the Philippines was responsible for the execution of Fathers Gomez, Burgos and
Zamora, of Rizal and other Filipino patriots" (speech delivered on February 15, 1958
before the Supreme Council of the Ancient and Accepted Scottish Rite of Free
Masonry).

No doubt Section 2175 was designed to preserve the indestructible wall of separation
between Church and State the basic pillar of our democratic regime. The no-religious
test clause of the Constitution only implements and supplements one's freedom to
entertain views of his relations to his Creator and to preach, propagate and evangelize
his religious belief. But such no-religious test does not guarantee him the right to run for
or be appointed to a public office and thereafter to use such public office to compel the
citizenry to conform to his religious belief, thereby to gain for his Church dominance
over the State.

A priest or minister, once elected or appointed to a municipal office, necessarily enjoys


the salary pertaining to the office. This would be a direct violation of the prohibition
under Section 18(2) of Article VIII of the 1973 Constitution which was contained in
paragraph 3 of Section 23 of Article VI of the 1935 Constitution. Not only public funds
will be appropriated for his salary but the priest or minister thus elected or appointed as
a municipal officer employee will also directly or indirectly enjoy the use or benefit of any
property of the municipality. The only exception where such appropriation of public
money or property can be validly made in favor of such priest or minister is when he is
assigned to the Armed Forces or to any penal institution or government orphanage or
leprosarium.

What will necessarily follow would be the Church fielding its own candidates for
municipal offices all over the country even without registering as a political party. Such
support by the Church, although not registered as a political party, remains a
circumvention of the absolute prohibition specified in Section 8 of Article XII of the 1973
Constitution. And when the majority of the winning candidates for elective offices in tile
towns all over the country are supported by the Church, these officials will naturally be
beholden to the Church and will utilize — covertly or overtly — their office to further the
interests of the Church. When the Church achieves such political dominance, then the
Church will have the power to persuade the electorate or citizenry to amend the
Constitution to eliminate all the provisions on separation of Church and State, the
establishment of state religion and the utilization of public funds or property by the
Church or by any of its priests or ministers and the prohibition against the registration of
a religious sect as a political party.

The history of mankind, including our own history, to which Mr. Justice Jose P. Laurel
appealed in Aglipay vs. Ruiz (64 Phil. 201, 205), and our jurisprudence furnish the
formidable evidence of the dangers that religious supremacy poses to our country and
people.

Once a particular church or religion controls or is merged with the State, we shall bid
goodbye to all our liberties; because all other churches, religions, sects or
denominations and all other dissenters of whatever hue or persuasion, will not be
tolerated.

Just recently, columnist Teodoro F. Valencia recounted in his column of August 5, 1978
that a certain "Jose B. Marabe of Davao City reports that in the town fiesta of Talalora
West Samar, barrio officials were compelled to become Aglipayans because the mayor
turned Aglipayan. Those who did not obey were denied barangay aid" (Over a Cup of
Coffee, Daily Express, August 511978, p. 5).

Former Senator Claro M. Recto, the father of the 1935 Constitution, painfully narrates:

And yet we have been witnesses to the fact in the last two elections that
religious organizations, priests and nuns, bishops and archbishops
descended upon the political arena, not only to urge the faithful to support
their own favorite candidates for national positions, but to enjoin them from
voting for certain candidates whom the hierarchy considered enemies of
the church, under threat of ex-communication and eternal damnation The
confessional and the pulpit have been utilized for these purposes.

xxx xxx xxx

In the elections of 1955 the hierarchy made the first try. The hierarchy
gave several candidates for the Senate their imprimatur and their blessing
and not only enjoined the faithful to work and vote for them but also
enjoined them not to vote for candidates whom they had declared
anathema. Their agents conducted the campaign first in whispers and
through handbills and newspaper articles and caricatures in the
hierarchy's own press organ, but later the confessional and, in certain
areas, the pulpits became campaign platforms. Religious lay
organizations, priests and nuns, schools of both sexes, took active part in
the campaign. This was the church militant and the hierarchy were
successful to a certain extent. They were able to elect at least two
senators, although they failed to prevent the election of one they most
hated, abused and maligned. Pleased and encouraged by their initial
victory the hierarchy made a second try in the general elections. They put
up candidates for all national offices, President, Vice-President, Senators
and Representatives. They failed to elect the President, however, because
the hierarchy were hopelessly divided on the Presidency, as seen in the
advertisements which appeared in a section of the local press. Bishops in
league with a Filipino Archbishop, were backing one candidate. Those
owing fealty to a foreign diplomatic representative of the Church went all-
out for another candidate. They were all one, however, in enjoining the
faithful from voting for a third candidate, the same one they had fought
bitterly but unsuccessfully in the preceding senatorial elections.

Happily for the winning candidate for Vice-President, they were all united
for him. Not that the other three candidates for the office were reputed
enemies of the church. But one of them, orthodox in his faith and a regular
observant, they disliked for having sponsored and voted for the Rizal Bill.
They discarded another supposedly because of his allegedly non-too-
exemplary private life. And as to a third one, an acknowledged Catholic
leader, it was their belief that it would be wasting votes on him as he was
never given a chance to win. The victor, being the sole candidate of the
church for Vice- President, could not but win, thus justifying the name with
which he was christened, the Spanish word for God-given: Diosdado. The
church was also successful in electing two senators. Not that the
remaining six were not Catholics, but that they were not particularly
favorites.

It is thus undeniable that while the Constitution enjoins the state from
requiring any religious test for the exercise of political rights, it is the
church that in practice has of late required such a test according to its own
standards.

What was the cause of this sudden political belligerence on the part of the
hierarchy? Why this recent unabashed attempt to dominate the state
through the ballot box? No better answer can be given except that the
hierarchy must have reached a decision to implement the policy
announced in Rome in 1948, not exactly by the Vatican, but by the official
organ of a powerful religious organization reputed to be adviser to Popes,
in a leading article which proclaimed the following:

The Roman Catholic Church, convinced through its devisee prerogatives,


of being the only true church, must demand the right of freedom for herself
alone, because such a right can only be possessed by truth, never by
error. As to other religions, the Church will certainly never draw the sword,
but she will require that by legitimate means they shall not be allowed to
propagate false doctrine. Consequently, in a state where the majority of
the people are Catholic, the Church will require that legal existence be
denied to error, and that if religious minorities actually exist, they shall
have only a de facto existence without opportunity to spread their beliefs
... In some countries, Catholics will be obliged to ask full religious freedom
for all, resigned at being forced to co-habitate where they alone should
rightfully be allowed to live. But in doing this the Church does not
renounce her thesis, which remains the most imperative of her laws, but
merely adapts herself to de facto conditions, which must be taken into
account in practical affairs ...

This is the essence, not of religious freedom, but of sectarian intolerance:


the church, when a minority in a given country, urges freedom of worship
and co-existence along with others; but when in the majority, it denies that
freedom to other faith denominations, and claims a monopoly on truth. '4
Certainly this was not the view of the founders of the American Republic
when they instituted the principle of religious freedom.

xxx xxx xxx

The policy announced in Rome in 1948, to which I already referred, can


find no more adequate and conclusive refutation than in the following
statement by Dr. John B. Bury, Regius Professor of Modern History,
University of Cambridge, in his A History of Freedom of Thought:

A state with an official religious but perfectly tolerant of all creeds and
cults, finds that a society had arisen in its midst which is
uncompromisingly hostile to all creeds but is own and which, if it had the
power, would suppress all but its own. The government in self-defense
decides to check the dissemination of these subversive Ideas and makes
the profession of that creed a crime, not on account of its particular tenets
but on account of the social consequences of those tenets The members
of the society cannot without violating their consciences and incurring
damnation abandon their exclusive doctrine. The principle of freedom of
conscience is asserted as superior to all obligations to the State, and the
State, confronted by this new claim, is unable to admit it. Persecution is
the result. (pp. 4748).

What is to happen when obedience to the law is inconsistent with


obedience to an invisible master? Is it incumbent on the State to respect
the conscience of the individual at all costs, or within what limits? The
christians did not attempt a solution, the general problem did not interest
them. They claimed the right of freedom exclusively for themselves from a
non-Christian government; and it is hardly going too far to suspect that
they would have applauded the government if it had suppressed the
Gnostic sects whom they hated and calumniated

In any case, when a Christian State was established, they would


completely forget the principles which they had invoked. The martyrs died
for conscience, but not for liberty. Today the greatest of the Churches
demands freedom of conscience in the modern States which she does not
control, but refuses to admit that, where she had the power, it would be
incumbent on her to concede it. (pp. 49-50)

During the two centuries in which they had been a forbid. den t the
Christians had claimed toleration on the ground that religious belief is
voluntary and not a thing which can be enforced. When their faith became
the predominant creed and had the power of 'he State behind it, they
abandoned this view. They embarked or 'he hopeful enterprise of bringing
about a complete uniformity in men's opinions on the mysteries of the
universe, and began a more or less definite policy of coercing thought.
This policy was adopted by Emperors and Governments partly on political
grounds; religious divisions, bitter as they were, seemed dangerous to the
unity of the State. But the fundamental principle lay in the doctrine that
salvation is to be found exclusively in the Christian Church. The profound
conviction that those who did not believe in its doctrines would be damned
eternally, and that God punishes theological error as if it were the most
heinous of crimes, has naturally led to persecution. It was a duty to
impose on men the only true doctrine, seeing that their own eternal
interests were at stake, and to hinder errors from spreading, heretics were
more than ordinary criminals and the pain that man could inflict on them
were nothing to the tortures awaiting them in hell. To rid the earth of men
who, however virtuous, were through their religious errors, enemies of the
Almighty, was a plain duty. Their virtues were no excuse. We must
remember that according to the humane doctrine of the Christians, pagan
that is, merely human virtues were vices, and infants who died unbaptized
passed the rest of time in creeping on the floor of hell. The intolerance
arising from such views could not but differ in kind and intensity from
anything that the world had yet witnessed.' (pp. 52-53)" [The Church and
State Under the Constitution, Lawyers Journal March 31, 1958, pp. 83-84]

Section 2175 of the Revised Administrative Code does not therefore clash with the no-
religious test guarantee; because the same is indispensable to the very survival of this
republic against religious intolerance and hegemony If the 1971 Coninstitutional
Convention was not profoundly apprehensive of the evil effects of the fusion of the
Church and State, it would not have expressly reaffirmed the inviolability of such
separation, as heretofore stated, in Section 15 of Article XV of the 1973 Constitution.
Such deep conviction of the Filipino people was first given expression in 1899, even
before the beginning of the American regime, by our ancestors who, by reason of their
having been subject to the indignities generated by the union of Church and State, to
insure that such oppression will no longer abide, incorporated expressly in the Malolos
Constitution of the First Philippine Republic that the state recognizes the equality of all
religous worships and the separation of the Church and State" (Art. V, Title 111, Malolos
Constitution).

As a living witness to the religious tyranny during the Spanish regime, Justice Florentino
'Torres of this Supreme Tribunal affirmed before the Philippine Commission in 1900 the
abuses of the friars (see Agoncillo and Alfonso, A History of the Filipino People. 1960
ed. p. 11; 5 quoted in the dissenting opinion of Justice Antonio).

Professor Renato Constantino recounts:

But the fundamental cause for the warning zeal and ensuing corruption of
the friars was their accquisition of property.

A letter to Governor Dasmarinas from Bishop Domingo Salazar dated


March 21, 1591. recounts in passing how the religious in Mexico obtained
the revocation of a loyal prohibition against their owning property. the
religious contended that there were too many disadvantages in having the
friars live alone. They proposed the establishment of houses to be
manned by at least four ecclesiastics But this raised the problem of their
support. Declaring that they did not want their missionaries to be a burden
to their flock, the Dominicans and the Augustinians suggested that the
best solution ,one estates in the native would be for the king grant them
some estates in the native proposal ran counter to a royal order that the
clergy should not own lands in the Indian villages: but the religious,
through Bishop Salazar himself. succeeded in persuading the king to
revoke his decree.

xxx xxx xxx


The friars also bought land from tile natives with the money they obtained
from church fees, from trade, or from the profits gained from the produce
of lands which utilized forced labor. With their prestige and power, it was
easy for them to pressure villagers into selling them their lands at very low
prices.

Other landholdings were acquired through the foreclosure of mortgages.


The story of how friars became mortgagees often began innocuously
enough. Living as they did among the people, the religious were in the
best position to appreciate the possibilities of agricultural development.
Seeing that the obstacle to more extensive cultivation was lack of capital,
many priests entered into partnership with farmers, advancing them
money for seeds, work animals and tools. The priests received half of the
harvest.

Although this arrangement favored the money lender who received a fat
share without working, at least he ran the same risk as the farmer of
getting little if the harvest was poor. But when the dependence on priestly
capital had become more or less established, the friars began to demand
that their advances be regarded as loans payable at a fixed rate of interest
whether the harvests were good or bad. The risks were now borne by the
tillers alone, and in bad seasons they ran into debt.

When such debts accumulated, the friars forced the farmers to mortgage
their land to them and eventually foreclosed the mortgage. The friars then
obtained title to such lands and the farmer-owners were either driven
away or became tenants.

xxx xxx xxx

Some friar lands were obtained through outright usurpation. With the help
of corrupt surveyors and other government official, religious corporations
were able to expand their landholdings. Additional hectares of land outside
original boundaries of friar property were simply gobbled up each time a
new survey was undertaken. Many times, the priests just claimed pieces
of land, drew maps of them, had them titled, and set themselves up as
owners.

The original native settlers who had tired the land for years were
summarily declared to be squatters. When the natives protested, they
were asked for legal proofs of ownership of the land in question. More
often than not, they could not show any legal document attesting to their
ownership of the land. The natives did not have 'titulos reales since their
claim to the land was based on de facto possession.

xxx xxx xxx

Taxes, tributes, exorbitant rents and arbitrary increases of the same,


forced labor and personal services — all these intensified the hardships of
natives who now had to give up a good part of their produce to their
landlords. In addition, some administrators practiced other petty cruelties
which caused much suffering among the people.

In 1745, in the Jesuit ranches of Lian and Nasugbu, Batangas, for


example, the people accused the religious not only of usurping the
cultivated lands and the hills that belonged to them but also of refusing to
allow the tenants to get wood, rattan and bamboo for their personal use
unless they paid the sums charge by the friars.

In Bulacan, villagers complained that the religious cheated them out of


their lands and then cruelly proceeded to deny them the right to fish in the
rivers, to cut firewood, and to gather wild fruits from the forests. The friars
would not even allow their carabaos to graze on the hills since the
religious now claimed all these areas as their own. "In Cavite, Manila and
Bulacan, small landholders complained that since the friars, owned the
land through which the rivers passed, they had to agree to the friars' terms
if they wanted water for irrigation purposes.

Lessees of friar lands protested bitterly that their landlords raised their
rents almost every year and particularly whenever they saw that through
the farmers' labor the land had become more productive. In some cases,
they even imposed a surtax on trees planted by the tenants. When they
accepted rental payments in kind, the administrators of the friar estates
arbitrarily fixed the prices of these products, naturally at lower than
prevailing prices.

Aside from institutional exploitation, exactions of a personal nature were


rampant. Curates charged a bewildering number of fees for all sorts of
rites, from baptism to burial. The natives paid even if it meant selling their
last possessions because they had been taught that such rites were
indispensable to the salvation of their souls.

Friars made money selling rosaries, scapulars and other religious objects.
They required from their flock all kinds of personal services and gifts of
food for the convent table.

Priests often administered corporal punishment, usually whippings on


natives who dared disobey their orders or disregard their caprices.
Unmarried girls were compelled to report to the convent to pound rice and
sweep the church floors. The large number of Filipinos today who have a
priest somewhere in their family trees attests to the frequency with which
the vows of celibacy were transgressed.

Of course, the cruelty capriciousness and frequency of abuses depended


on the character of the individual priest - and there were good and bad.
However, it cannot be denied that the virtually unchallenged power of the
friar in most communities had a corrupting influence on most.

The people's mounting resentment led them to commit various acts of


defiance, to refuse to pay the unjust taxes imposed by friar estate
administrators, and finally to resort to armed rebellion. So serious were the
clerics abuses that by 1751, the king was moved to issue a royal decree
ordering local government authorities

to exercise hereafter the utmost vigilance in order that the


Indians of the said villages may not be molested by the
religious, and that the latter should be kept in check in the
unjust acts which they may in future attempt ...

But by that time such a directive could hardly be enforced. The friars had
become too powerful not only because of their spiritual hold over both the
Spanish officials and the natives, but also by virtue of their established
economic power. In addition, they had become a ubiquitous presence in
the local machinery of administration.

Against the power of his friar landlord, a tenant found it impossible to


prosecute his interests or have his complaints heard. A poor tenant could
not afford the costs of a lawsuit, granting that he knew the first thing about
litigation procedures. Besides, what chance had he against such a
powerful figure as a friar? If a friar wanted a tenant evicted, the cleric
could easily prevail upon a judge to issue the order. and he could as easily
avail himself of government forces to execute the decision. Recalcitrant
tenants were often evicted en masse there were so many landless
peasants to take their places, anyway.

Exploitation, with its concomitant personal cruelties and abuses, was part
and parcel of the imperative of property expansion once the friars' right to
property had been recognized. Economic power enhanced political power,
and political power was used time and again to expand economic power
and to oppose any attempts by government to frustrate economic
expansion.

By the end of the Spanish occupation, the friar were in possession of more
than 185,000 hectares or about one-fifteenth of the land under cultivation.
Of this total, around 110,000 hectares were in the vicinity of Manila.

xxx xxx xxx

The early ascendancy of the Church over the State was made possible by
the success with which the friars undertook, almost single-handedly, the
pacification of t lie country.

Since this success was due in large measure to the native's acceptance of
the new religion, Spanish power in most communities rested on the
influence of the religious. The prevalent opinion at that time that 'in each
friar ill the Philippines the king had a captain general and a whole army is
a recognition of this fact.

Moreover, in more than half of the villages in tile islands there was no
other Spaniard, and therefore no other colonial authority the friar. This
state of affairs obtained almost to tile end of Spanish rule.

Other factors contributed to friar ascendancy. The friars knowledge of the


land and of the people was invariably superior to that of the government
functionary. The Spanish alcaldes mayores were dependent on the
religious not only because t he latter spoke I lie native dialects but also
because the tenure of these government officials was temporary while that
of the parish priest was more or less permanent.

A more fundamental basis of the great political power of the religious was
the Spanish concept of the union of Church and State. The friar was
entrusted with an ever-growing number of civil duties within the community
until there was no aspect of community life in which he did not have a
hand.

He was inspector of primary schools, and of taxation;


president of the board of health, charities, of urban taxation,
of statistics, of prisons; formerly, president of the board of
public works. He was a member of the provincial board and
the board for partitioning crown lands. He was censor of the
municipal budget, of plays comedies and dramas in the
native language given at the counselor of matters in regard
to the correctness of cedulas, municipal council, the police
force, the schools, and the drawing of lots for army service.

Economic power through landholding and through investments in foreign


and internal trade, political power through extensive participation in
government, and spiritual control over both the native population and
fellow Spaniards — all these combined to make the friar the principal
figure in each community, and the Church the dominant power in the
country.

xxx xxx xxx

Time and again, governors complained of the abuses of the clergy and
appealed to the Spanish monarch to curtail their powers. As early as
1592, Governor Dasmarinas was already railing against friar power. He
wrote:

And the friars say the same thing — namely, that they will
abandon their doctrinas (i.e., Christian villages) if their power
over the Indians is taken away. This power is such that the
Indians recognize no other king or superior than tile father of
the doctrine and are more attentive to his commands than to
those of the governor, Therefore the friars make use of them
by the hundreds, as slaves, in their rowing, works, services,
and in other ways, without paying them, and whipping them
as if they were highway men. In whatever pertains to the
fathers there is no grief or pity felt for the Indians; but as for
some service of your Majesty, or a public work, in which an
Indian may be needed, or as for anything ordered from them,
the religious are bound to gainsay it, place it on one's
conscience, hinder it, or disturb everything.

In 1636, Governor Sebastian Hurtado de Corcuera wrote the king


objecting to the increase in the number of religious in the islands.
According to him, the friars had reduced the natives to virtual slavery by
forcing them to sell to the religious at their rice and cloth at prices set by
the latter who then monopolized the business in these items. And yet, the
governor complained, when assessments of rice, cloth d wine were levied
on the people by the government, these same friars objected on the
ground that the natives were too poor to pay what was demanded.

xxx xxx xxx

Abuses such as the friar's excessive interference in the natives' daily life,
personal insult, corporal punishment such as whipping and lashing of both
men and women for the slightest offense, onerous fees for confessions
and other religious rites, sexual offenses against native women, and the
native virtual reduction to a slave and servant of the friar — all these were
being committed as early as the second or third decade of occupation. But
these wrongs were still inflicted and also accepted on an individual basis
and they varied in intensity and frequency depending on the personality of
each priest. Furthermore, since punishments were meted out on a variety
of individual offenses, there was no common grievance strong enough to
call forth united action, although there is no doubt that resentment were
building up.

But when the religious orders began to acquire property, their abuses took
on a different complexion. As landlords, they became economic exploiters
whose abuses threatened the economic survival of the natives. Such
abuses were no longer inflicted by an individual on separate individuals.
Neither were they occasional or dependent on a particular friar.

Exploitation was basic and permanent, and enforced by an institution on


groups of men constituting practically the entire community. Moreover, this
kind of exploitation could not be justified in any way as part of the friar's
religious mission. All these factors transformed isolated resentments into
common and bitter grievances that erupted in revolts against the friars.

That native disaffection with the religious orders had a profoundly material
basis is proved by the fact that discontent exploded in revolts precisely in
areas where friars were known to hold large tracts of agricultural land. In
the provinces of Cavite, Laguna, Manila, Bulacan and Morong (now Rizal),
the religious owned more than one-half of the total agricultural land. It is
not mere coincidence that these provinces experienced many agrarian
uprisings and became the strongholds of the Philippine Revolution.

To summarize: the attitude of the natives to the Church in the course of its
economic and political ascendancy changed from initial obedience due to
awe and fear; to loyalty and subservience arising from acceptance of the
Catholic religion and experience with the power of priests within the
colonial hierarchy, but accompanied by personal resentments; to
generalized or group hostility because of common experience with
economic exploitation by the friars; and finally, to the violently anti-friar
sentiments of the masses during the Revolution (see Chapters 9 and 10)
which resulted in demands for their expulsion and in the rise of an
indigenous Church.

It is very clear that this transformation in the realm of consciousness was a


response to a material stimulus — the transformation of the Church from a
colonial accessory to the principal apparatus of colonial appropriation and
exploitation" (The Philippines — A Past Revisited, 1975, pp. 66 to 80).

Again, we have to summon the prodigious intellect of that great nationalist, Claro M.
Recto, himself a victim of the most vicious campaign against his candidacy in 1957
waged by the dominant Catholic church, which refused to heed the injunction of Christ,
explicit from His answer to the Pharisees when they attempted to entrap Him into
opposing the power of Rome, to "render unto Caesar the things that are Caesar's and
unto God the things that are God's". Recto, with his keen and prophetic mind, easily
discerned the dangers posed by church interference in our democratic system. In his
speedch delivered on February 19, 1960 on the occasion of the conferment upon him of
the degree of Doctor of Humanities, honoris causa by the Central Philippine University
Iloilo City, Recto concluded his argument against the unholy alliance of Church and
State, thus:

It is to be deplored that in recent years the most numerious Church in this


country, not satisfied with the hold it has on the fealty of four-fifths of the
nation as no government has ever enjoyed or will enjoy here, has made
use of its privileged position by demanding from candidates to public
office, particularly the elective ones, certain religious tests and pledges of
allegiance. The immediate purpose, of course, is to acquire through
policy-making government officials, control of the public affairs and
ultimately to establish here a truly theocratic state, which, according to
Lord Acton, a liberal Catholic and great English scholar, is 'the most
dangerous form of absolutism.

We have been witnessing from time to time the organization of sectarian


professional groups. We already have a lawyers sectarian association,
and only recently certain local physicians who, claiming to believe that
they should consider religion in the practice of their profession, have
grouped themselves into a sectarian association , and only recently
certain local physicians who, claiming to believe that they should consider
religion in the practice of their profession, have grouped themselves into a
sectarian association of apothecaries organized one of these days, and
other similar ones, until there shall not be a single profession or
occupation without its own sectarian association.

xxx xxx xxx

At the time the most numerious Church in this country moved onto the
political stage, a young Filipino priest, reputedly an intellectual in his own
religious order, made in the course of a public address at the Luneta, with
the evident placet of the corresponding hierarchy — qui tacet consentire
videtur — the most daring proposal that there should be union of Church
and State, with the Church assuming naturally the leadership inthe unholy
partnership. such a proposal is most likely to happen should the most
numerious Church obtain the necessary control of the legislature.

In the last three elections the most numerous Church made its influence
felt. There was a small chosen group of ambitious political upstarts — the
youth elite, so to speak — who took to the field with the unmistakable
blessings and patronage of their Church's hierarchy. Although this group
did not carry officially its sects banner, it was to all intents and purposes
just that with no pretense at being anything except it was Identified with
the Church in question and it received the latter's unqualified and
unstinted support through pulpit and confessional and through religious
schools and associations all over the country, Priests and nuns in charge
of private schools were particularly in their newly found militancy. The
haloed candidates of this group were presented to the electorate as the
honest among the holy and they carried the standard, albeit unofficial of
their Church, the implication was that at least for the voter that belongs to
it, they were the only ones fit, under bulls and encylclicals, for public office.

The irony of all this is that while the government is enjoined by the
Constitution from imposing or requiring religious test to any office, it is a
religious establishment, the that incrusions in the country, that is doing so.
Although this religious establishment did not fare as it had expected iii the
last three elections. t here is no doubt that its incursions into the political
field should not be taken lightly. If these inroads are not curbed now, th
day is not far off when we shall see the halls of congress being used to
proselytize the nation and the people legislated into one religion; faith, An
established church. which is another name for union of Church and State,
consecrated by approriate constitutional ammendement, would be the
tragic result

xxx xxx xxx


Origin, one of the early Fathers - he lived in the 3rd century - admonished
that 'Christians should not take part ill the government of the State, but
only of the divine nation'. 'that is, the Church; and rightly so, because most
people regard politics as 'worldly' and unworthy of any really holy man.'
This same doctrine, according to Bertrand Russell 'is implicit in Saint
Augustines City of God o much so that it led churchmen, at the time of the
fall of Western Empire, to look on passively at secular disasters while they
exercised their very great talents, in Church discipline, theological
controversy, and the spread of monasticism.

Writing to a correspondent in Constantinople, Gregory the Great said.


'What pleases the most pious emperor, whatever, he commands to be
done, is in his power ... As he determines, so let him provides. What he
does, if it is canonical we will follow; but if it is not canonical we will bear it,
as far as we can without sin of our own ... Rulers should not be criticized,
but should only be kept alive to the danger of hell fire if they fail to follow
the advise of the church.' Pope Nicholas I of the 8th century replied to an
angry letter of Emperor Michale III: 'the day of King-Priests and Emperor-
Pontiffs is past; Christianity has separated the two functions.'

Gelasius, a pope in the fifth century, laid down the principle of separation
of Church and State in the following words:

... It may be true that before the coming of Christ, certain persons ...
existed who were at the same time priests and kings, as the holy scripture
tens us Melchizedech was.

... But, after the coming of Christ (who was Himself both the true king and
the true priest), no emperor thereafter has assumed the title of priest, and
no priest has seized a regal throne ... He separated the kingly duties and
powers from the priestly, according to the different functions and dignity
proper to each ... The soldier of the Lord should be as little as possible
entangled in secular business, and that one involved in secular affairs
should not be seen occupying the leadership of the church.' Masters of
Political Thoughts by Michael B. Foster, vol. 1, pp. 231-232.)

Pope Leo XIII, in his Encyclical 'Immortal Dei (November 1885) said:

It is generally agreed that the Founder of the Church, Jesus Christ, wished
that the spiritual power to be distinct from the civil, and each to be free and
unhampered in doing its own work, not forgetting, however, that it is
expedient for both, and in the interest of everybody, that there be a
harmonious relationship.

xxx xxx xxx

Reichersberg another famous churchman of the twelfth century, who


supported the Pope in the Investiture controversy, said:

Just as the emperors sometimes arrogated to themselves functions


belonging to the priesthood and the church; so they (the priests) on the
other hand imagine that their priesthood confers on them also an imperial,
or more than imperial power

... What then will have become of those two swords of the Gospel, if the
apostle of Christ shall be all, or if the Emperor shall be all? If either the
Empire or the priesthood shall be robbed of its strength and dignity, it will
be as though you were to take one of the two great luminaries from the
sky. (Id, p. 235.)

Don Luigi Sturzo a distinguished Catholic Italian scholar, speaking of the


separate functions of Church and State, says: 'Every attempt to overstep
such limits, from either side, has violated the laws of nature and those of
revelation. (Church and State, vol. I, p. 28).

Lord Acton in his 'Political Philosophy,' pp. 43-44, remarked:

If a Church is united with the State the essential condition of freedom


vanishes. It becomes officiated. And those who govern the Church are
tempted to divert its influence to their own purposes. Similarly, the support
of the Church dangerously increases the authority of the State, by giving a
religious sanction to the behests of the State. This increases the danger of
depositism.

Under the terms of the Lateran Treaty with Italy, which was concluded in
1929, the Holy See not only agreed that Catholic organizations would
abstain from politics, but it declared that 'it wishes to remain, and it will
remain extraneous to all temporal disputes between nations and to all
international congresses convoked for the settlement of such disputes
unless the contending parties make a concordant appeal to its mission of
peace; nevertheless it reserves the right in every case to exercise its
moral and spiritual power.'

In the 'Report on Church anti State' (Message and Decisions of Oxford


[19571 on Church, Community, and State, pp. 27-30), it was declared that
'The Church as the trustee of God's redeeming Gospel and the States as
the guarantor of order, justice, and civil liberty, have distinct functions in
regard to society. The Church's concern is to witness to men of the
realities which outlast change because they are founded on the eternal
Will of God. The concern of the State is to provide men with justice, order,
and security in a world of sin and change, As it is the aim of the Church to
create a community founded on divine love, it cannot do its work by
coercion, nor must it compromise the standards embodied in God's
commandments by surrender to the necessities of the day. The State, on
the other hand, has the duty of maintaining public order, and therefore,
must use coercion and accept the limits of the practicable.

xxx xxx xxx

To allow an ecclesiastic to head the executive department of a municipality is to permit


the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect. For it requires no in-depth analysis to realize the
disastrous consequence of the contrary situation — allowing ecclesiastics to run for a
local position. Can there be an assurance that the decisions of such ecclesiastic in the
exercise of his power and authority vested in him by reason of his local position will be
clothed with impartiality? Or is not the probability that his decision as well as discretion
be tainted with his religious prejudice, very strong? For considering the objectives of his
priestly vocation, is it not incumbent upon him to color all his actuations with the
teachings and doctrines of his sect or denomination? Is there an assurance that in the
appointment to appointive municipal positions the religious affiliation of the competing
applicants will not play the decisive factor? If the ecclesiastic elec to a municipal office
of mayor is a Catholic, would the chances of an heretic an Aglipayan, a Protestant or an
Iglesia ni Kristo adherent be as equal as those of a Catholic?
Pursued further, in the solemnization of marriage, how would he resolve the conflict
between civil laws and his religion? Will he conduct the same under the tenets of his
religion or under the commands of civil laws? Will he be willing to solemnize the
marriage of applicants who both do not belong to his sect Will he be imposing the
requirement, assuming that he is a Catholic, that the non-Catholic party should agree
that the children of the union shag be brought up according to the Catholic dogma
Where the applicants are first cousins, will he be willing to solemnize the marriage,
considering that under civil law, the same is prohibited, but under Catholic rules, the
same is allowed? Where obedience to the law of the State is inconsistent with
obedience to the law of his Church, how will he act? Such questions could be asked
also of the municipal officials who are ministers of other religions or sects

Again, in the exercise of his preliminary investigation authority, how would he decide
cases under investigation where the crimes involved are violations of Article 132
(Interruption of religious worship) and Article 133 (Offending the religious feelings)? Will
not his religious convictions and prejudices color his actuations?

Also, in the matter of permits for the use of public places for religious purposes, how
would he treat applications filed by atheists or by religious sects other than his? Could
there be an assurance of strict impartiality?

What alarms me more, however, is the effect of the majority opinion — allowing
ecclesiastics to run for a public office in the local government — on the present posture
of the Churches in the present political situation. For I entertain very strongly the fear
that with such ban lifted, it will not be too long from today that every municipality in the
country will be headed by a priest or minister. And the result of such a situation need
not be emphasized any further.

Recto had expressed it in no uncertain terms. Recto ventured to foretell in the same
speech earlier quoted:

... in the light of the events of the recent past, unless the hierarchy of the
most numerous Church withdraws definitely and completely from the field
of its newly found activities, the nation will eventually find itself sucked into
the maelstrom of a religion political war with the said Church on one side
and on the other a powerful alliance not only among those who belong to
other religious denominations, but also a sizable portion of its faithful who,
because of nationalism or civil libertarianism would refuse to follow their
spiritual leaders in such a purely mundane crusade. It is irrelevant whether
the numerous church or its allied opponents emerge victorious in such a
battle, for the outcome will be the same as in the ones between
Hildebrand and Henry IV and their respective successors, and between
the thirteenth-century popes and the Holienstaufen 'the usual outcome.' in
the words of Toynbee 'of all wars that are fought to the bitter end the
nominal victor succeeded in dealing the death-blow to his victim at the
cost of sustaining fatal injuries himself; and the real victors over both
belligerents were the neutral tertii gaudentes. In our case, the tertii
gaudentes, the happy onlookers, if I may be allowed to translate these
Latin word freely ' would be the enemies of our nation and people, the real
beneficiaries of such a tremendous national misfortune.

Finally, the majority opinion will precipitate small religious wars in every town. We have
seen in cases decided by this Court how the religious fanatics have persecuted religious
sects in some towns giving rise to bloody episodes or public disturbances.
It would seem that any human activity touching on the religious beliefs and sentiments
of the people easily agitate their emotions, prejudices and passions, causing even the
ordinarily reasonable and educated among them to act intolerantly.

Indeed, in one case that reached this Court, Mr. Justice Jose P. Laurel, alarmed by the
bigotry of a Roman Catholic priest so obvious from his actuations, articulated in his
dissenting opinion the following thoughts:

Why, may I ask, should the mere act of passing of the corpse or funeral
cortege in or through a private property be characterized asnotoriously
offensive to the feelings of any religion or its adherents or followers?

The Lord gave, and the Lord hath taken away; blessed be the name of the
Lord (Job, 1.21).

In this case, the Lord has recalled the life of one of His creatures; and it
must be His wish that the remains shall have the right of way that they
may be buried 'somewhere, in desolate wind swept space, in twilight land,
in no man's land but in everybody's land.'

Rather than too many religions that will make us hate one another
because of religious prejudices and intolerance, may I express the hope
that we may grasp and imbibe the one fundamental of all religions that
should make us love one another. (People vs. Baes, 68 Phil. 203 [l939]).

In the aforesaid case of Baes, a Roman Catholic priest attempted to prevent a funeral
held in accordance with rites of the sect "Church of Christ" from passing through the
Catholic churchyard fronting the Roman Catholic Church of Lumban, Laguna. Having
failed allegedly because the accused used force and violence, the priest filed a
complaint against the former for violation of Article 133 of the Revised Penal Code,
which, however, was dismissed by the lower court upon motion of the fiscal on the
ground that the acts alleged in the complaint did not constitute the offense against
religious feelings. The intolerant priest however had his day before this Court which, on
appeal, ruled otherwise, declaring that the offense to religious feelings, under the factual
circumstances of the case, must be judged according to the feelings of the Catholics
and not those of other faiths. Justice Jose P. Laurel, joined by Justice Imperial, strongly
dissented from the aforesaid conclusion of the majority of the Court, stating that:

... As I see it, the only act which is alleged to have offended the religious
'feelings of the faithful' here is that of passing by the defendants through
the atrio of the church under the circumstances mentioned. I make no
reference to the alleged trespass committed by the defendants or the
threats imputed to them because these acts constitute different offenses
(Arts. 280, 281 and 282-285) and do not fall within the purview of Article
133 of the Revised Penal Code. I believe that an act, in order to be
considered as notoriously offensive to the religious feelings, must be one
directed against religious practice or dogma or ritual for the purpose of
ridicule; the offender, for instance, mocks, scoffs at or attempts to damage
an object of religious veneration it must be abusive, insulting and
obnoxious Viada Commentaries al Codigo Penal, 707, 708, vide also
Pacheco, Codigo Penal, P. 259).

Why, may I ask, should the mere act of passing of the corpse or funeral
cortege in or through a private property be characterized as notoriously
offensive to the feelings of any religion or of its adherents or followers?
The Lord gave, and the Lord hath taken away; blessed be the name of the
Lord (Job. 121). "In this case, the Lord has recalled the life of one of His
creatures; and it must be His wish that the remains shall have the right of
way that they may be buried 'somewhere, in desolate, wind swept space,
in twilight land, in no man's land but in everybody's land." Rather than too
many religions that will make us hate one another because of religious
prejudices and intolerance, may I ex press the hope that we may grasp
and imbibe the one fundamental of all religions that should make us love
one another.

It must decline to accept the statement made in the majority opinion


that 'whether or not the act complained of is offensive to the religious
feelings of the Catholics, is a question of fact which must be judged on tv
according to the feelings of the Catholics and not those of other faithful
ones, for it is possible that certain acts may offend the feelings of those
who profess a certain religion, while not otherwise offensive to the feelings
of those professing another faith.' (emphasis is mine). I express the
opinion that the offense to religious feelings should not be made to
depend upon the more or less broad or narrow conception of any given
particular religion, but should be gauged having in view the nature of the
acts committed and after scrutiny of all the facts and circumstances which
should be viewed through the mirror of an unbiased judicial criterion.
Otherwise, the gravity or leniency of the offense would hinge on the
subjective characterization of the act from the point of view of a given
religious denomination or sect and in such a case, the application of the
law would be partial and arbitrary, withal, dangerous, especially in a
country said to be 'once the scene of religious intolerance and
persecution' (Aglipay vs. Ruiz, 35 Off. Gaz. 2164) [pp 208-210].

In United States vs. Dacquel (36 Phil. 781 119171), accused barrio lieutenant halted
and attacked, with the help of three men, some of the Roman Catholic inhabitants of the
barrio of Sococ in the Province of Ilocos Sur who were then having a religious
procession without the barrio lieutenant's consent or authorization which seemed to
have angered him. He was convicted of grave physical injuries inflicted by him during
that incident upon a participant, a nine-year old girl.

The case of Balcorta (25 Phil. 273 [19131) reveals that an Aglipayan, who, uninvited,
entered a private house, where services of the Methodist Episcopal Church were g
conducted by 10 to 20 persons and who then threatened the assemblage with a club,
thereby interrupting the divine service, was found guilty under Article 571 of the old
Penal Code (similar to Art. 133, Revised Penal Code).

Again, in (56 O.G. 2371 [1958]), its factual circumstances reveal that the complaint filed
by the chief of police alleged that while devotees of the Iglesia ni Kristo were holding a
religious ceremony in a certain house in Dinalupihan, the accused stopped in front
thereof, made unnecessary noise, and shouted derogatory words against the Iglesia ni
Kristo and its members, and even stoned the house.

Ignacio vs. Ela (99 Phil. 347 [1956]) arose because of the act of the mayor of Sta. Cruz,
Zambales, in permitting the members of the Jehovah's Witnesses to hold their meeting
at the northwestern part of the plaza only, instead of at the kiosk in the public plaza. The
actuation of the mayor was pursuant to a policy he adopted even before the request
made by the members of the Jehovah's Witnesses, it appearing that the public plaza,
particularly the kiosk, is located at a short distance from the Roman Catholic Church,
causing some concern, because of the proximity, on the part of the authorities; hence,
to avoid disturbance of peace and order, or the happening of untoward incidents, they
deemed necessary to prohibit of meeting of its members, especially so, that in the
instant case, the tenents of petitioners' congregation are derogatory to those of the
Roman Catholic Church. The respondent mayor was sustained by this Court, with four
members of the Court dissenting.

The case of U.S. vs. Apurado, et al. (7 Phil. 422 [1907]) shows that while the municipal
council of San Carlos, Occidental Negros was in session, some 500 residents of the
town assembled near the municipal building. Upon the opening of the session a large
number of those assembled about the building crowded into the council chamber about
the building crowded into the council chamber and demanded the dismissal from office
of the municipal treasurer, the secretary and the chief of police, and the substitution in
their places of new officials. The council acceded to their wishes and drew up a formal
document setting out the reasons for its action, which was signed by the councilors
present and by several leaders of the crowd. It appears that the movement had its origin
in religious differences between residents of the municipality. The petitioners believed
that the officials above-named should not continue to hold office because of their
outspoken allegiance to one of the factions into which the town was at that time divided.
(This Court reversed the decision, of the trial court convicting them of sedition).

In People vs. Reyes, et al (CA-G.R. No. 13633-R, July 27, 1955), the accused Reyes,
who was the chief of police of the town of San Esteban, Ilocos Sur, ordered his
policemen to stop Minister Sanidad of the Iglesia ni Kristo, which was then holding a
meeting at the public plaza, from continuing with his sermon when the latter attacked in
the course of his sermon the Catholic and Aglipayan churches, as well as the women of
San Esteban, Ilocos Sur. Accused were convicted of violation of Art. 131 of the Revised
Penal Code.

Again, in People vs. Migallos (CA-G. R. No. 13619, August 5, 1955) wherein the
accused was convicted by the Court of First Instance and Court of Appeals of the
offense defined under Art. 133 of the Revised Penal Code, the facts show that Minister
Tagoylo of the Iglesia ni Kristo sect was stoned by the accused while the former was
preaching or spreading his belief on a public road before a crowd of around 500
persons.

People vs. Mandoriao (CA-G.R. No. 12114, February 25, 1955, 51 O.G. 4619) started
with a rally organized by the Iglesia ni Kristo, attended by about 300 people, 50 of whom
belonged to the said sect at a public park in Baguio City. One of the ministers of the
sect expounded on a topic asserting that Christ was not God but an ordinary man,
causing the crowd to become unruly, whereupon, appellant went up the stage and
grabbed the microphone challenging the minister to a debate. (The lower court
convicted appellant of violation of Art. 133 of the Revised Penal Code but the Court of
Appeals acquitted him).

In People vs. Gesulga (1 C. A. Rep. 103), appellant, a protestant preacher of the


Seventh Day Adventist, was found guilty by the lower court of offending religious
feelings. The Court of Appeals reversed the conviction. The fact show that some
Catholic elements in Leyte conducted a barangay, similar to the rosary, which continued
with a procession outside. The procession with big attendance had to pass along the
barrio road in the middle of which a Protestant meeting was being held under a permit
issued by the municipal mayor. On account of said meeting, the procession could not
pass through. Those attending the procession requested from, but were denied
passage by, the appellant who was then speaking at the meeting (in the course of which
he uttered words notoriously offensive to the feelings of the Catholic faithful). The
processional participants who were singing Ave Maria in high pitch, took another road,
while others passed under the nearby houses. When the procession was about 10
meters from the meeting place, appellant temporarily stopped talking and resumed his
talks after the procession had passed.
In the case of People vs. Tengson [(CA) 67 O.G. 1552], the criminal act complained of
was the performance by the appellant of burial rites inside the Roman Catholic
Cemetery in accordance with the rules and practices of the sect called "Christ is the
Answer". There was a permit for the burial in question. Convicted by the lower court,
appellant was acquitted on appeal.

The inevitable consequence of the election or appointment of priests or ministers of


religion to municipal public offices would be the appropriation of public funds for the
payment of their salaries and their utilization of public property, which may likewise be
employed, directly or indirectly, for the benefit or support of any sect church,
denomination, sectarian institution, or system of religion - a palpable violation of the
constitutional prohibition against the appropriation of utilization of public money or
property for such religious purposes (Par. 2, Sec 18, Art. V III, 197 3 Constitution).

In sum, if the disqualification prescribed in Section 2175 of the Revised Administrative


Code were nullified, three basic constitutional guarantees would thus be violated —
Section 8 of Article IV, Section 18(2) of Article VIII, and Section 15 of Article XV of the
1973 Constitution.

The newly elected Head of the Catholic church, Pope John Paul 1, upon his installation
on September 1, 1978, enjoined his Catholic flock to strictly adhere to the Jeffersonian
concept of separation of Church and State.

In its editorial of September 6, 1978, the Times Journal (p. 4) commented on the
aforesaid Papal pronouncement:

Scholars the world over hailed the statement of Pope John Paul I affirming
the separation of church and state as 'of historic importance.' Some even
detected in it a hint of Thomas Jefferson, the American founding father
who worked the concept into the U.S. Co institution.

To Filipinos steeped in this constitutional tradition, the Pope' remarks on


this point in his address before a group of diplomats are very significant.
This is especially true in the face of the over zealousness of some
members of the clergy whose activities in th name of social action tend to
endanger nationality

While it could be said that the provision in the Philippine Constitution on


the separation of church and state has traces of strong Jeffersonian
influence upon the framers of the fundamental charter, the sad experience
of the Filipinos at the hands of the meddling friars during three centuries of
Spanish occupation made them more sensitive to and acutely aware of
the concept. The rejection of a state supported church during the
Philippine Revolution only served to enhance this theory.

The Pope said the roles of government and church were of 'two
orders,sion and competence' of a 'unique' and 'special character.

The church's responsibilities 'do not interfere with purely temporal


technical apolitical affairs, which are matters for ... governments,' he said.

Significant, too, are the comments on the papal statement by such


religious leaders as Rev. Paul Boyle head of the Passionist Fathers. The
Pope,' according to Boyle 'not only states it as a principle, but as a
desirable one.'
What we have here,' according to Rev. Donald Campton, a Jesuit official
and one-time editor of the national Catholic weekly, America, 'is not just a
statement but a pledge that both on the national and international levels,
we don't want a state church.'

With the concept strongly reiterated and the lines once again clearly
drawn, it is to be hoped that we should not forget, rendering unto Caesar
what is Caesar's and to God what is God's. The Pope has made his
pledge, let no member of the Church make mockery of it.

Another Filipino historian, Carlos Quirino, writing about Jesuit- educated Ambassador
Leon Ma. Guerrero, author of the prize- winning "The First Filipino", a biography of
Rizal, characterized the Spanish friar as "the most dangerous of man — one combining
great power with a sense of devotion to his mission — ... He, then, became the great
antagonist of the first Filipino, Jose Rizal."

A significant fact seems to indicate a dangerous attempt on the part of the Catholic
hierarchy in the Philippines to subvert the laws of the Republic, if not the Republic itself.
For several years now, the ecclesiastical tribunal has been annulling marriages, despite
the fact that such marriages can no longer be annulled under our laws. Even marriages
of spouses with children had been nullified. It should be emphasized that the power to
annul marriages in the Philippines is vested only in the courts established by the State,
and not in ecclesiastical tribunals. The grounds for annulment of marriages void ab
initio or merely voidable, are expressly enumerated in the Civil Code.

In a newspaper interview, the executive vice official of the Metropolitan Matrimonial


Tribunal of the Archdiocese of Manila, in re-affirming the position of the Catholic Church
that it is which are considered void ab initio is annulling only marriage he rules of the
Church, would not specify the under t canonical grounds for annulment of marriages
considered void from the very beginning by the Church, stating merely that they are
"varied and diverse ... all of them are qualified terms with specific meanings very
different from the layman's understanding" (Times Journal, Modern Living, p. 1, Oct. 3,
1978). This answer is evasive. Such evasion is compounded by the fact that such
annulments by the Church are not published in any Catholic organ to enable the public
to know the facts of each case and the reasons for annulling the marriage, unlike the
cases decided by the civil courts.

However, Father Mario Nepomuceno, a Jesuit marriage counselor, stated before the
Interim Batasang Pambansa committee conducting hearings on the divorce bills, that
the Philippine Catholic church has in fact annulled many marriages on the grounds of
"moral incompatibility" or emotional immaturity on the part of one or both spouses (Daily
Express, pp. 1-2, Nov. 7, 1978). This ground finds its counterpart in Nevada and
Mexico, where "quickie" divorces are the fashion. The spouses, Mr. and Mrs. Jose M.
Meily both stated in their column "Husband and Wife" that the Catholic Church annuls
marriages on the ground of lack of full or sufficient consent on the part of the spouses,
which consent may be impaired by ignorance, no intention to co-habit, lack of
consciousness at the time of the marriage either caused by drugs or alcohol, error,
simulation of consent, conditional consent, force and/or fear, and lack of due discretion
(Philippine Panorama, p. 56, Nov. 12, 1978). Except for force and fear, all the other
qualifications as to the existence of full consent are not found in our civil laws.

The statement of Cardinal Sin that the State should not interfere with Church rulings on
marriages solemnized in church is a defiance of the law and the authority of the
Republic of the Philippines; because it implies that the rules of the Church on the
validity or nullity of marriages solemnized in church shall prevail over the laws of the
State on the subject (see "Bulletin Today", pp. I & 12, Oct. 5, 1978). This statement of
Cardinal Sin belies his affirmation that the Church does not interfere with or defy civil
laws but respects them (see "Bulletin Today", supra).

There is need of emphasizing that marriage is a social institution — not just a mere
contractual relation — whose sanctity is recognized and protected by the State, and is
not a matter within the exclusive jurisdiction of the Church. The solidarity of the Filipino
family and sanctity of the marital bond are the primary concern of the State, perhaps
even more than they are of the Catholic church, as the family unit constitutes the
strength of the nation. The Church tribunals in annulling marriages, is usurping the
power of the courts established by the State. Even the authority of the priests and
ministers to solemnize marriages is granted by State law, without which no priest or
minister of any religion or church or sect or denomination can legally solemnize
marriages. If the right of the Catholic church to annul marriages or to declare marital
unions as void ab initio under its rules were conceded, then there is no reason to deny
the same right to the ministers of the Protestant church and other religious sect or
denomination.

The annulment by the Church does not render the spouses exempt from possible
prosecution for bigamy, adultery or concubinage, should they contract a second
marriage or have carnal knowledge of, or co-habit with persons other than their
legitimate spouses of the first marriage which remains lawful in the yes of the laws
validly promulgated by the State.

If the Church tribunal believes that the marital union is a nullity from the very beginning
under the civil laws, then the Church should advise the parties to go to the civil courts.
But the Church should not arrogate unto itself State authority and the jurisdiction of the
courts created by the State.

To stress, in our country, there is only one sovereign, the Republic of the Philippines,
and not the Roman Catholic Church or any other church. Only the sovereign, the
Republic of the Philippines, can validly promulgate laws to govern all the inhabitants of
the Philippines, whether citizens or aliens, including laws concerning marriages,
persons and family relations. And only the courts established by the sovereign, the
Republic of the Philippines, can apply, interpret and enforce such laws. The exercise by
the Catholic church in promulgating rules governing marriages and defining the grounds
for annulment of the same, as well as establishing ecclesiastical tribunals to annul
marriages or to declare marriages void ab initio is a usurpation of the sovereign power
of 'the State.

While any Church or religious sect or denomination has the right to exist independent of
the Constitution and the laws of the country, such Church or religious sect or
denomination shall obey the Constitution and the laws of the State where it exists and
operates. The Church or any religious sect or denomination can invoke the protection of
the State whenever its existence and the persons of its heads, priests, ministers and
properties are imperilled or violated. But the Church or religious sect or denomination
has no legal or ecclesiastical power to subvert the State and its laws. No Church or any
religious sect or denomination can repeal or modify the provisions of the laws validly
promulgated by the State. hat the existing laws on annulment

If the Church believes t of marriages need to be amended, it should suggest such


amendments; but it should not enact or promulgate such proposed amendments.

The good Cardinal Jaime L. Sin would do well to heed Christ's reminder (which he
repeated at the Fourth Annual National Prayer Breakfast at the Manila Hotel on
November 30, 1978) to His disciples that His Kingdom is not of this world.
And all authorities of the Roman Catholic Church should likewise harken to the
injunction of the supreme Pontiff Pope John Paul 11, who on Friday, November 24,
1978, told the monks, friars and other religious that their duty is to lead a poor and
obedient life rather than be engaged in "social and political radicalism" (Times Journal,
page 1, November 25, 1978).

I therefore vote to grant the petition and to reverse the decision of the trial court.

ANTONIO, J., concurring:

I concur in the judgment, but dissent from the views expressed by Mr. Justice Fernando.
In resolving the issues in the case at bar, the main opinion failed to consider Section 15
of Article XV of the Constitution. This provision, which ordains the inviolability of the
separation of Church and State, appears more relevant to the case at bar, if we
consider the constitutional guarantee of religious freedom in its historical setting. It must
be recalled that during the period of Spanish colonial domination, the union of Church
and State in the Philippines was maintained and protected. As observed by one writer:

The Friar at this period was the full embodiment of Spanish colonial
donation. He was de facto a colonial civil administrator and a defender of
the sovereignty of the King of Spain over the subject Indioin most
provincial towns. Simultaneously he was de jure by operation of
the Patronato Real, the rightful parish priest of the same towns constituted
as parishes.

Since he was the only Spaniard in residence in most Philippine towns he


was not only a salaried government official he was entrusted with purely
civil functions. Thus, for instance, he drew up the tribute list of his parish,
the list, namely, of those Indios subject to the poll tax and to statute labor.
He was the director of the local elementary school. He supervised the
election of local officials whose confirmation in office by the colonial
government depended entirely upon his recommendation. He attended,
and often presided at the meetings of the town council, whose ordinances
had to be approved by him. Roads, bridges and other public works were
maintained under his orders and vigilance. He was the judge and guardian
of public morals.

The Friar therefore, was the promoter, defender, and protector of Spanish
rule in the Philippines. ... . 1

It is a historical fact that this arrangement spawned abuses on the part of the friars.
According to two noted historians, "one of the most unwelcome characteristics of
Spanish colonization was the encroachment of the church upon the jurisdiction of the
government, and the exercise of political power by the religious. In the central
government, representatives of the church or of the religious orders sat in the highest
councils. The friars were heavily represented in the powerful Permanent Commission on
Censorship, created in 1856, which had jurisdiction over 'the press and the introduction
of books in the archipelago, according to rules approved by both the civil and
ecclesiastical authorities.' In the towns the masses were subject to the will of the parish
priest, who dominated the local officials. Indeed, in the towns, the friars and priests
became integrated into the machinery of government: they 'had become the
government.' Thus, there was no effective system of checks and balances which could
curb abuses." 2 Said historians further noted that:

Justice Florentino Torres testified, also before the Philippine Commission


in 1900, that the friars were so powerful that they could intervene directly
in the election of municipal officials, and could obtain the transfer,
suspension, or even removal from office of civil officials, from the highest
to the lowest, including the governor-general. According to him, whoever
was suspected by the friars to be a filibuster no matter how worthy or
upright, '... became the object of all manner of governmental action, of
military proceedings, and of the cruelest outrages and vexations, because
against him who was accused of being a filibuster all manner of ill
treatment, imprisonment, deportation, and even assassination was
permitted.'3

Father Jose Burgos attributed the regressiveness of the Filipinos in his "Manifesto" in
the newspaper La Verdad" to the efforts of the friars to keep the poor Indios in
ignorance and rusticity and this constituted a constant obstacle to the progress and
advancement of the Filipinos. In "El Filibusterismo", Jose Rizal blamed by the tyranny
and abuses of the friars and Spanish officials, and especially their suppression of free
Ideas, as the cause of the social and political backwardness of the Filipinos.

It is in the anguish of their historical experience that the Filipinos sought a ban on the
intervention of the ecclesiastics in the management of government. Thus, the framers of
the Constitution of the First Philippine Republic (Malolos Constitution) of 1899 deemed it
necessary to prevent interference with, and domination of, the government by the
ecclesiastics by providing, in Article 5, Title Ill thereof, for the "separation of the Church
and the State." 4 Even before the establishment of the American colonial rule, there
was, therefore, this prevailing clamor of the Filipinos to erect a wall between the Church
and the State. In the instructions of President McKinley to the Philippine Commission
which laid out the policies of the United States in establishing a government in the
Philippines, he stated that "the separation of State and Church shall be real, entire and
absolute."

The separation of State and Church clause was again incorporated in the 1935 and
later in the 1973 Constitutions. Thus, the 1973 Constitution of the Philippines provides
that "the separation of church and state shall be inviolable." 5This should, therefore, be
taken into consideration in ascertaining the meaning and import of Section 8 of Article
IV of the Constitution, which states that "no religious test shall be required for the
exercise of civil or political rights." 6According to Story, the "no religious test" clause
contained in the United States Constitution was "not introduced merely for the purpose
of satisfying the scruples of many respectable persons, who feel an invincible
repugnance to any religious test or affirmation. It had a higher object; to cut off forever
every pretence of alliance between church and state in the national government. The
framers of the Constitution were fully sensible of the dangers from this source, marked
out in the history of other ages and countries, and not wholly unknown to our own. They
knew that bigotry was unceasingly vigilant in its stratagems to secure to itself an
exclusive ascendancy over the human mind; and that tolerance was ever ready to arm
itself with all the terrors of the civil power to exterminate those who doubted its dogmas
or resisted its infallibility." 7

It is clear, therefore, that the two provisions, taken together, ensure the separation of
Church from Government, while at the same time giving assurance that no man shall be
discriminated against because of his religious beliefs. The interrelation of these
complementary clauses was well summarized, thus: "The structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the
civil authority." 8 Indeed, it is a matter of history that "the union of government and
religion tends to destroy government and degrade religion." 9

It was partly to ensure that no particular religious sect shall ever again obtain a
dominant hold over civil government that Section 2175 of the Revised Administrative
Code was incorporated in our laws, Thus, it provides that "in no case shall there be
elected or appointed to a municipal office ecclesiastics ...". This Court applied this
prohibition in a case decided on March 14, 1955, or after the adoption of the 1935
Constitution. Thus, Vilar v. Paraiso, 10 the Court ruled that a minister of the United
Church of Christ was ineligible to assume the office of municipal mayor.

In its American setting, the separation of Church and State clause is justified "by the
necessity for keeping the state out of the affairs of the church, lest the church be
subordinated to the state; in Jeffersonian terms its function is to keep the church out of
the business of government, lest the government be subordinated to the church. Limited
powers of government were not instituted to expand the realm of power of religious
organizations, but rather in favor of freedom of actions and thought by the people." 11

It is, therefore, obvious that on the basis of its history and constitutional purpose, the
aforecited provisions of the Constitution furnish neither warrant nor justification for the
holding in the main opinion that Section 2175 of the Revised Administrative Code,
insofar as it includes ecclesiastics is inconsistent with the "religious freedom guaranteed
in the Constitution."

In Torcaso v. Watkins, 12 which is accorded persuasive weight in the majority opinion,


there was no showing that Torcaso was an ecclesiastic or a minister or officer of any
religious sect As a matter of fact, he was refused a commission to serve as notary
public because he would not declare his belief in God, as required by Article 37 of the
Maryland Constitution. The Supreme Court properly held that the requirement is a
religious test and "unconstitutionally invades the appellant's freedom of belief and
religion and therefore cannot be enforced against him."

On the other hand, the situation of private respondent is materially different. He is


admittedly a member of the Clergy, being a priest of the Roman Catholic Church. It is
for this reason that he is being prevented from assuming the office of municipal mayor,
and not because of his religious belief. The prohibition does not impinge upon his
religious freedom. He has the full and free right to entertain his religious belief, to
practice his religious principle and to teach his religious doctrine, as long as he does not
violate the laws of morality or the laws of the land. The separation of Church and State
clause in the Constitution appears to be a recognition of the teachings of history "that
powerful sects or groups might bring about a fusion of governmental and religious
functions or a concert or dependency of one upon the other to the end that official
support of the ... Government would be placed behind the tenets of one or of all
orthodoxies." 13

The intent of the constitutional provision is the vital part, the essence of the law. The
clear purpose of the framers of the Constitution and the understanding of the people
when they approve it, when ascertained, must be enforced. Indeed, in construing
provisions of the Constitution, the proper course is to start out and follow the true intent
of its framers and to adopt that construction which harmonizes best with the context and
promotes in the fullest manner the realization of the constitutional purpose.

I likewise take exception to the view expressed in the majority opinion that the
supremacy of the Constitution supplies the answer to the issue of the eligibility of a
member of the clergy to an elective municipal position. The application of Article XVI,
Section 2 of the 1935 Constitution, with its counterpart in Article XVII, Section 7 of the
1973 Constitution, concerning laws inconsistent with the Constitution, is inaccurate.
Article 2175 of the Revised Administrative Code, in including ecclesiastics within the
ambit of the prohibition, is not inconsistent with the explicit provision of the 1935
Constitution that "(n)o religious test shall be required for the exercise of civil or political
rights." 14 The absence of inconsistency may be seen from the fact that the prohibition
against "religious tests" was not original to the 1935 constitution. It was expressly
provided in the Jones Law 15 that "no religious test shall be required for the exercise of
civil or political rights" (Section 3). At the time of the passage of the Jones Law, the
Original Administrative Code (Act 2657) was already in force, having been enacted in
February 1916. In order to harmonize the Code with the Jones Law, the Code was
amended in October 1916, with the passage of Act 2711. The revision was made
expressly "for the purpose of adapting it to the Jones Law and the Reorganization
Act. 16Notwithstanding such stated purpose of the amendment, the prohibition against
the election of ecclesiastics to municipal offices, originally embodied in Section
2121 17 of the 2657, was retained. This is a clear indication that it is not repugnant to the
"no religious test" doctrine which, as aforestated, was already expressly provided for in
the Jones Law.

Considering that Section 2175 of the Revised Administrative Code, which "cut off
forever every pretence of any alliance between church and state", is in conformity with
Section 15 of Article XV of the Constitution, which ordains that "the separation of church
and state shall be inviolable, " it cannot, wherefore, be said that such statute, in
including ecclesiastics among those ineligible to municipal office, is violative of the
fundamental law.

I concur in the view incisively discussed by Chief Justice Castro that Section 2175 of the
Revised Administrative Code has not. been repealed or superseded by any other
legislation and, therefore, is the controlling law in the case before Us.

Since we cannot negate the clear and unequivocal intendment of the law, I therefore
concur in the judgment granting the certiorari.

MUÑOZ PALMA, J., dissenting:

I concur fully with the separate Opinion of Justice Claudio Teehankee on all the points
discussed therein.

As regards the final outcome of this case, with Justices Fernando, Concepcion Jr.,
Santos, Fernandez, and Guerrero who share our views on the legal issue raised in the
Petition, now voting with the Chief Justice and the four other Justices to grant the
petition because, "the vote is indecisive" for "while 5 members of the Court constitute a
minority, the vote of the remaining seven does not suffice to render the challenged
provision ineffective," and "under the circumstances, certiorari lies," and therefore the
aforementioned Justices "have no choice then but to vote for the reversal of the lower
court decision and declare ineligible respondent Father Margarito R. Gonzaga for the
office of municipal mayor." (See 1st paragraph, p. 3 of Majority Opinion) I can only state
that this reasoning surpasses my comprehension.

I believe that there would have been greater fidelity to the prevailing situation had the
petition for certiorari been denied due to the original lack of necessary votes to grant the
same, a status quo maintained insofar as respondent Father Gonzaga is concerned,
without a conclusive ruling pronounced on the legal issue as the required eight votes for
purposes of rendering judgment is absent. (See Sec. 9, Judiciary Act of 1948 as
amended by Art. X, Sec. 2[2]1973 Constitution)

As explained in detail in the separate Opinion of Justice Teehankee, the denial of the
Petition for Review would be in consonance with Sec. 11, Rules 56, Rules of Court.

I now submit the following observations on the matter of the disqualification of an


ecclesiastic to run for a municipal elective office.
The minority view asserts that Section 2175 of the Administrative Code which declares
ecclesiastics among others ineligible for election or appointment to a municipal office,
does not violate any provision of the Constitution and that in fact it strengthens the
constitutional provision on the separation of Church and State. Justice Ramon Aquino
particularly states: "to allow clergymen to take part in political affairs is to start the
process of reviving the theocracy of primitive societies, and past civilizations where the
priests, with his chants incantations hocus-pocus and abbracadabra played sinister
role", and "Rizal and the reformers would have labored in vain and would be betrayed if
the priest becomes a politician." (pp. 3, 4, 6 of Opinion)

I must voice my objection to the above-quoted sweeping statements which are also
echoed in the other Opinions of my distinguished Colleagues, as they savor of bias,
prejudice, and constitute an unjust indictment and dicrimination against priests, more
particularly, priest of the Roman Catholic Church.

It is not for me to pontificate on what is or should be the true mission of priests,


ministers, and nuns, the latter, according to Justice Aquino, also fall under the term
ecclesiastics for I would leave that matter to the conscience and judgment of the person
concerned and of his superiors in his church, but I will speak out in defense of a
person's constitutional right not to be dicriminated against, nor to be denied of equal
opportunities for work or employment, or withheld of equal protection of the laws in the
exercise of his civil or political rights, simply because he is garbed in a cassock or a
religious habit and has taken vows of service to God and his church.

One's religious vocation does not strip the individual of his rights and obligations as a
citizen of his country and as a member of the community where he serves. He is part of
society, and his having taken vows of poverty, humility, and love, renders him all the
more concerned with humanity, more particularly, with the social and economic
conditions of the people with whom he lives be they within or out of his flock. A minister
of the church is therefore not to be feared of playing a "sinister role" in the handling of
government affairs, rather it is the layman motivated by ambition and greed set out to
enrich himself and perpetuate his person in power while the poor becomes poorer and
the oppressed becomes more burdened with injustice, who is to be abhorred and
shunned.

The fears expressed by the Justice concerned date far back in the dark ages of history
and in truth are the result of the abuses of a few. Now we live in different times.
Concepts in government, politics, religion, and society as a whole, have undergone
drastic changes with the passing of the years. The Filipino people for their part have
kept faith with their goal of political independence and their love for freedom and justice
side by side with their Christian religion and all other faiths which fourish in the
prevailing spirit of ecumenism

The present role of the Roman Catholic Church was clearly expressed by Pope John
XXIII in his encyclical "Mater et Magistra" thus:

2. Christianity is the meeting point of earth and heaven. It lays claim to the
whole man, body and soul, intellect and will, inducing him to raise his mind
above the changing conditions of this earthly existence and reach upward
for the eternal life of heaven, where one day he w .11 find his unfailing
happiness and peace.

3. Hence, though the Church's first care must be for souls, how she can
sanctify them and make them share in the gifts of heaven, she concerns
herself too with the exigencies of man's daily life, with his livelihood and
education and his general temporal welfare and prosperity.
xxx xxx xxx

180. Moreover, in becoming as it were the lifeblood of these people, the


Church is not, nor does she consider herself to be, a foreign body in their
midst. Her presence brings about the rebirth, the resurrection, of each
individual in Christ; and the man who S reborn and rises again in Christ
never feels himself constrained from without. He feels himself free in the
very depth of his being, and freely raised up to God. And thus he affirms
and develops that side of his nature which is noblest and best. (The Social
Teaching of Pope John XXIII, p. 5; emphasis supplied)

The above may well be the objective of all religions.

What then have we to fear or guard against a minister of the church if ever the reins of
local government are placed in his hands? As one writer says: "When one gives himself
wholly to God, the noblest and best in his nature emerges; spontaneously he is
generous, noble, kind and compassionate; he will have the courage that comes from
disinterested love, and having these qualities, he will become a powerful influence for
god" And so, rather than a tool of evil, an ecclesiastic or a priest will be an effective
instrument of good in the community.

Of much interest, and I would give it much weight, is an 1894 decision of the Supreme
Court of Pennsylvania, United States of America, a country which jealousy guards the
enforcement of the principle of separation of Church and State. In Hysong et al v.
School District of Gallitzin Borough et al., the action was to restrain the school directors
of the District from permitting sectarian teaching in the common schools and from
employing as teachers sisters of the Order of St. Joseph, a religious society of the
Roman Catholic Church. The court of common pleas dismissed the action and
dissolved a preliminary injunction previously issued. An appeal was made to the State
Supreme Court and the latter dismissed the appeal and affirmed the order or decree.
Said the Court through Justice John Dean:

xxx xxx xxx

Unquestionably, these women are Catholics, strict adherents of Chat faith,


believing fully in its distinctive creed and doctrine. But this does not
disqualify them. Our constitution negatives any assertion of incapacity or
ineligibility to office because of religious belief. Article 1 of the bill of rights
declares: "All men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own conscience; ... no
human authority can in any case whatever control or interfere with the
rights of conscience. If, by law, any man or woman can be excluded from
public employment because he or she is a Catholic, that is a palpable
violation of the spirit of the Constitution for there can be, in a democracy,
no higher penalty imposed upon one holding to a particular religious belief
than perpetual exclusion from public station because of it. Men may
disqualify themselves by crime, but the state no longer disqualifies
because of religious belief. We cannot now, even if we wanted to, in view
of our law, both fundamental and statutory, go back a century or two, to a
darker age, and establish a religious test as a qualification for office. (30
Atl Rep. pp. 482-483, emphasis supplied)

But then it is strongly argued that the election or appointment of priests or even nuns to
municipal office will be violative of the separation of church and state. I strongly believe
that it is not so. As an eminent Constitutionalist puts it: what is sought to be achieved
under the principle of separation of church and state is that political process is insulated
from religion and religion from politics; in other words, government neutrality in religious
matters. 1 Thus, our Constitution provides that no law shall be made respecting an
establishment of religion.

Having an ecclesiastic or priest in a local government office such as that of the


municipal mayor will not necessarily mean the involvement of politics in religion or vice-
versa. Of course the religion of the man cannot be dissociated from his personality; in
truth, his religion influences his conduct, his moral values, the fairness of his judgment,
his outlook on social problems, etc. As stated in the Hysong decision, inevitably in
popular government by the majority, public institutions will be tinged more or less by the
religious proclivities of the majority, but in all cases where a discretion is reposed by the
law, it is to be assumed in the absence of evidence to the contrary, that the public
officer will perform his duty in the manner the law requires. I may add that there are
legal remedies available to the citizenry against official action violative of any existing
law or constitutional mandate.

WHEREFORE, I vote to deny this Petition for review and to affirm the decision of
respondent Judge.

AQUINO, J., concurring:

Reverend Father Margarito R. Gonzaga was elected in 1971 as mayor of Alburquerque


Bohol. Fortunato R. Pamil his opponent, filed a quo warranto proceeding against him.
Pamil invoked section 2175 of the Revised Administrative Code of 1917 which
disqualifies clergymen from holding a municipal office in the following peremptory terms:

SEC. 2175. Persons ineligible to municipal office. — In no case shall there


be elected or appointed to a municipal office ecclesiastics, soldiers in
active service, persons receiving salaries or compensation from provincial
or National funds, or contractors for public works of the municipality.

Father Gonzaga interposed the defense that section 2175 was impliedly repealed by
section 23 of the Election Code of 1971 which provides:

SEC. 23. Candidate holding appointive office or position. — Every person


holding a public appointive office or position petition, including active
members of the Armed Forces of the Philippines and every officer or
employee in government-owned or control]. ed corporations, shall ipso-
facto cease in his office or position on the date he files his certificate of
candidacy: Provided, That the filing of a certificate f candidacy shall not
affect whatever civil, criminal or ad. administrative liabilities which he may
have incurred.

It may be noted that section 2175 disqualifies from holding a municipal office soldiers in
active service as well as priests. The fact that tion 32 of the Election Code of 1971
allows active members of the Armed Forces of the Philippines to run for municipal
mayor may give the impression that Section 2175 was impliedly repealed by Section 23.
The lower court was of that opinion. It denied the petition for quo warranto. Pal
appealed by means of certiorari under Republic Act No. 5440.

I am of the opinion that the appeal is meritorious. The lower court erred in dismissing
the petition for quo warranto. A soldier in the active service may run for mayor because
under Section 23 he ipso facto ceases to be an army man from the time he files his
certificate of candidacy.

In contrast, a priest continues to be a priest notwithstanding his filing of a certificate of


candidacy for municipal mayor.
So, it cannot be concluded that section 23 of the Revised Election Code impliedly
abrogated the ineligibility of priests to run for municipal mayor as provided in section
2175. There is no irreconciliable repugnancy between section 23 and section 2175
insofar as ecclesiastics are concerned.

Section 2175 and section 23 are in pari materia with respect to soldiers in the active
service. There is no incompatibility between the two sections with respect to soldiers.
The disqualification in section 2175, as regards soldiers in the active service, is
compatible with their cessation as members of the armed forces when they file their
certificates of candidacy, as provided for in section 23. Soldiers can hold a municipal
office if they are no longer in active service. That can be implied from section 2175
itself.

For that matter, the automatic resignation from public office, under section 23, of public
officers who file their certificates of candidacy has no connection with the
disqualification in section 2175 of ecclesiastics from holding any municipal office. That
disqualification is not affected by the provision of the ipso facto resignation of public
officers who file their certificates of candidacy because an ecclesiastic is not a public
officer.

The view that section 23 impliedly repealed the disqualification of ecclesiastics from
holding a municipal office is strained and far-fetched.

So much for section 23 of the Election Code of 1971. Mr Justice Fernando, the Courts
leading authority on constitutional-law, tackled the question of respondent's eligibility
from the constitutional -,viewpoint although the issue of constitutionality was not raised
in the lower court. I disagree with the opinion that the provision of section 2175
disqualifying ecclesiastics from holding a municipal office is unconstitutional.

The term ecclesiastics refers to priests, clergymen or persons in holy orders or


consecrated to the service of the church. Broadly speaking, it may include nuns.

Conformably with section 2175, an ordained minister of the United Church of Christ was
held to be ineligible to hold the office of municipal mayor. His election to that office was
nullified in a quo warranto proceeding (Vilar vs, Paraiso, 96 Phil. 659).

It is argued that the disqualification of priests was abrogated by section 117), Article I I I
of the 1935 Constitution which provides that "no religious test shall be required for the
exercise of civil or political rights". It is assumed that the dis qualification is "inconsistent
with the religious freedom guaranteed by the Constitution (See sec. 8, Art. IV; sec.
18[21, Art. VIII, and sec. 8, Art. XII, 1973 Constitution).

I disagree with that conclusion. There is no incongruency between the disqualification


provision and the "no religious test" provision. The two provision can stand together.
The disqualification provision does not impair the free exercise and enjoyment or
religious profession and worship. It has nothing to do with religious freedom.

The disqualification of priests from holding a municipal office is an application of the


mandate for the separation of church and state (Sec. 15, Art. XV, 1973 Constitution; Art.
5, Malolos Constitution) which is based on Christ's admonition: "Render, therefore, unto
Caesar the things that are Caesar's and to God the things that are God's".

It should be borne in mind that the disqualification in section 2175 is a reproduction of


section 15 of Act No. 82 of the Philippine Commission which was passed on January
31, 1901, The Commission established that disqualification in spite of the "no religious
test provision found in article VI of the Federal Constitution. The constitutionality of that
disqualification had not been assailed up to 1971 when the instant case arose.
The disqualification of priests from holding municipal offices is a consequence of the
experience of our forefathers during the Spanish regime when the intervention of the
local curate in municipal affairs resulted in oppression, abuses, misery immorality and
stagnation. The revolution against Spain was partly an uprising against the friars whose
predominance in the country's affairs was characterized by Plaridel as the soberania
monacal.

There is a chapter in Rizal's Noli Me Tangere entitled Los Soberanos (The Rulers),
wherein the author answers the question: Quienes eran los caciques del pueblo?". He
noted that the town of San Diego was not ruled by Don Rafael Ibarra the richest
landowner, nor by Capitan Tiago, the moneylender, nor by the gobernardorcillo, nor by
God. It was ruled by the curate and the alferez. Rizal described the two rulers as
follows:

San Diego was a kind of Rome: not the Rome of the time when the
cunning Romulus laid out its walls with a plow, nor of the later time when,
bathed in its own and others' blood, it dictated laws to the world — no, it
was a Rome of our own times with the difference that in place of marble
monuments and coloseums it had its monuments of sawali and its cockpit
of nipa The curate was the Pope in the Vatican; the alferez of the Civil
Guard, the King of Italy on the Quirinal all, it must be understood, on a
scale of nipa and bamboo. Here as there, continual quarreling, went on,
since each wished to be the master and considered the other an intruder.
... Estos on los soberanos del pueblo de San Diego.

The flagitious thralldom which the friars imposed on the Filipinos, was an aspect of the
malignant social cancer that Rizal and the propagandists exposed and combated in
their writings.

The ecclesiastic is disqualified to run for an elective office in order to prevent, his church
from controlling the government. The same reason holds true with respect to soldiers in
active service. They should not meddle in politics so that no segment of the army can
overthrow the government,

Indeed, there is no reason when a priest should hold a civil office. He should hake
enough work in his hands ministering to the spiritual needs of the members of his
church. He can be an activist and he can champion social justice if lie is not a municipal
officeholder

Respondent Father Gonzaga is supposed to devote himself solely to spiritual matters


and not to temporal affairs such as the administration of a municipality. The objective of
the Roman Catholic Church is the salvation or redemption of souls. To attain that
objective, the priest under the Codex Juris Canonici is invested with the three-fold
function of teaching, directing and sanctifying in the tame of Jesus Christ. That means
the governance of the faithful and the ministry of divine worship or exclusive dedication
to the service of God and the sanctification of men in the manner of the priestly and
Levitical orders of the Old Testament (19 Encyclopedia Britanica, 1973 Ed., pp. 465-
466).

To nullify the disqualification provision would be a retrogressive step. To allow


clergymen to take part in political affairs is to start the process of reviving the theoracy
or primitive societies and past civilizations where the priests with his chants incantations
hocus-pocus and abbracadabra played a sinister role.

These observations are based on historical facts. I have n ingrained bias or prejudice
against priests. There are, an there have been good and saintly clergymen like the late
Fattier George J. Wilmann S. J. Philippine Deputy of th Knights of Columbus. Religion
plays an important role in enforcing the moral code and promoting order and morality in
society.

Rizal and the reformers would have labored in vain and would be betrayed if the priest
becomes a politician. He would be debased and his church would be degraded. The
evils arising from his intervention in municipal affairs would outweight the advantages, if
any.

A priest, who is disqualified from becoming a municipal employee, is not denied any
part of his religious freedom., or his political rights. A priest may have the civil right to
embrace the religious vocation but he does not have the constitutional right to be a
municipal employee. He can choose between being a municipal employee and being a
priest. He cannot be both. 'That arrangement is good for himself and his church and for
Society.

On the other hand, the statutory provision that only laymen can hold municipal offices or
that clergymen are disqualified to become municipal officials is compatible with the "no
religious test" provision of the 1935 Constitution which is also found in .9 tion 8. article
IV of the 1973 Constitution and in section 3 of the Jones law. They are compatible
because they refer to different things

The "no religious test" provision means that a person or citizen may exercise civil right
(like the right to acquire property) or a political right (the right to vote or hold office, for
instance) without being required to belong to a certain church or to hold particular
religious beliefs (See Miller vs. El Paso County 146, S. W. 2nd 1027, 67 C.J.S. 128,
note 48; 46 C. J. 939, note 44).

Thus, a constitutional provision prescribing that certain public officers shall be


Protestants requires a religious test Hale vs. Everett 53 NH 9, 67 C.J.S. 129, note 51;
46 C. J. 939, note 47. See State vs. Wilmington City Council, 3 Del 294, 67 C.J.S. 129,
note 52).

And, a constitutional provision requiring as a condition for appointment as a notary


public that a person should declare his belief in the existence of God or should not be
an atheist or an agnostic requires a religious test and is, therefore, unconstitutional.
That constitutional provision implements the historically discredited policy of "probing
religious beliefs by test oaths or limiting public offices to persons who have, or perhaps
more properly profess to have, a belief in some particular kind of religious concepts."
(Torcaso vs. Watkins, 367 U. S. 488, 494, 6 L. Ed. 2nd 982, 987).

The historical background of the "no religious test" provision clearly shows that it is
consistent with the disqualification of all clergymen from holding public office and that it
cannot be invoked to invalidate the statutory provision on disqualification.

The "no religious test" provision is a reaction against the Test Acts which once upon a
time were enforced in England, Scotland and Ireland. The Test Acts provided that only
those who professed the established religion were eligible for public office. Those laws
discriminated against recusants or Roman Catholics and non-conformists.

In England the religious test was first embodied in the Corporation Act of 1661. It
provided that all members of town corporations, in addition to taking the oaths of
allegiance and subscribing to a declaration against the Solemn League and Covenant,
should, within one year before election, receive the sacrament of the Lord's Supper
according to the rites of the Church of England. Later, the requirement was extended to
all public offices.
The English Test Act of 1678 provided that all peers and members of the House of
Commons should make a declaration against transubstantiation, invocation of saints,
and the sacrifice of the mass. During the later part of the nineteenth century the Test
Acts were abrogated.

In Scotland, the Test Act made profession of the reformed faith a condition of public
office. In Ireland, the principle of using the sacrament as a test was adopted. Oaths of
allegiance and declarations against Roman Catholic beliefs and practices were exacted.
Later, the tests were abolished in the two countries (21 Encyclopedia Britannica, 1973
Ed., 883-4).

To require that a person should be a Protestant in order to be eligible to public office is


different from disqualifying all clergymen from holding municipal positions. The
requirement as to religious belief does violence to religious freedom, but the
disqualification, which indiscriminately applies to all persons regardless of religious
persuasion, does not invade an ecclesiastic's religious belief He is disqualified not
because of his religion but because of his religious vocation.

Consequently, section 2175 can coexist, as it has co-existed for several decades, with
the "no religious test" constitutional provision. It is not unconstitutional. It strengthens
the constitutional provision for the separation of church and state.

I concur in the opinions of the Chief Justice and Justices Barredo, Makasiar and
Antonio. I vote for the reversal of the lower court's decision and the nullification of
Father Gonzaga's election as municipal mayor of Alburquerque Bohol.