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GOVERNMENT VS.

FRANK

MARCH 28, 2013 ~ VBDIAZ

THE GOVT OF THE PHILIPPINE ISLANDS vs. FRANK

G. R. No. 2935

March 23, 1909

FACTS: In 1903, in the city of Chicago, Illinois, Frank entered into a contract for a period of 2 years

with the Plaintiff, by which Frank was to receive a salary as a stenographer in the service of the said

Plaintiff, and in addition thereto was to be paid in advance the expenses incurred in traveling from the

said city of Chicago to Manila, and one-half salary during said period of travel.

Said contract contained a provision that in case of a violation of its terms on the part of Frank, he

should become liable to the Plaintiff for the amount expended by the Government by way of expenses

incurred in traveling from Chicago to Manila and the one-half salary paid during such period.

Frank entered upon the performance of his contract and was paid half-salary from the date until the

date of his arrival in the Philippine Islands.

Thereafter, Frank left the service of the Plaintiff and refused to make a further compliance with the

terms of the contract.

The Plaintiff commenced an action in the CFI-Manila to recover from Frank the sum of money, which

amount the Plaintiff claimed had been paid to Frank as expenses incurred in traveling from Chicago to

Manila, and as half-salary for the period consumed in travel.

It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224 should

constitute a part of said contract.

The Defendant filed a general denial and a special defense, alleging in his special defense that

(1) the Government of the Philippine Islands had amended Laws No. 80 and No. 224 and had thereby

materially altered the said contract, and also that

(2) he was a minor at the time the contract was entered into and was therefore not responsible under

the law.
the lower court rendered a judgment against Frank and in favor of the Plaintiff for the sum of 265. 90

dollars

ISSUE:

1. Did the amendment of the laws altered the tenor of the contract entered into between Plaintiff and

Defendant?

2. Can the defendant allege minority/infancy?

HELD: the judgment of the lower court is affirmed

1. NO; It may be said that the mere fact that the legislative department of the Government of the

Philippine Islands had amended said Acts No. 80 and No. 224 by Acts No. 643 and No. 1040 did not

have the effect of changing the terms of the contract made between the Plaintiff and the Defendant.

The legislative department of the Government is expressly prohibited by section 5 of the Act of

Congress of 1902 from altering or changing the terms of a contract. The right which the Defendant

had acquired by virtue of Acts No. 80 and No. 224 had not been changed in any respect by the fact

that said laws had been amended. These acts, constituting the terms of the contract, still constituted a

part of said contract and were enforceable in favor of the Defendant.

2. NO; The Defendant alleged in his special defense that he was a minor and therefore the contract

could not be enforced against him. The record discloses that, at the time the contract was entered into

in the State of Illinois, he was an adult under the laws of that State and had full authority to contract.

Frank claims that, by reason of the fact that, under that laws of the Philippine Islands at the time the

contract was made, made persons in said Islands did not reach their majority until they had attained

the age of 23 years, he was not liable under said contract, contending that the laws of the Philippine

Islands governed.

It is not disputed — upon the contrary the fact is admitted — that at the time and place of the making

of the contract in question the Defendant had full capacity to make the same. No rule is better settled

in law than that matters bearing upon the execution, interpretation and validity of a contract are

determined b the law of the place where the contract is made. Matters connected with its performance

are regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as

the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the

place where the suit is brought


EN BANC
[G. R. No. 2935. March 23, 1909.]
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. GEORGE I.
FRANK, Defendant-Appellant.

DECISION
JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of September, 1905.
the Defendant appealed. On the 12th day of October, 1905, the Appellant filed his printed bill of
exceptions with the clerk of the Supreme Court. On the 5th day of December, 1905,
the Appellant filed his brief with the clerk of the Supreme Court. On the 19th day of January, 1906, the
Attorney-General filed his brief in said cause. Nothing further was done in said cause until on about
the 30th day of January, 1909, when the respective parties were requested by this court to prosecute
the appeal under penalty of having the same dismissed for failure so to do; whereupon the Appellant,
by petition, had the cause placed upon the calendar and the same was heard on the 2d day of
February, 1909.
The facts from the record appear to be as follows: chanrobles virtualawlibrary
First. That on or about the 17th day of April, 1903, in the city of Chicago, in the State of Illinois, in the
United States, the Defendant, through a representative of the Insular Government of the Philippine
Islands, entered into a contract for a period of two years with the Plaintiff, by which the Defendant was
to receive a salary of 1,200 dollars per year as a stenographer in the service of the said Plaintiff, and
in addition thereto was to be paid in advance the expenses incurred in traveling from the said city of
Chicago to Manila, and one-half salary during said period of travel.
Second. Said contract contained a provision that in case of a violation of its terms on the part of
the Defendant, he should become liable to the Plaintiff for the amount expended by the Government
by way of expenses incurred in traveling from Chicago to Manila and the one-half salary paid during
such period.
Third. The Defendant entered upon the performance of his contract upon the 30th day of April, 1903,
and was paid half-salary from the date until June 4, 1903, the date of his arrival in the Philippine
Islands.
Fourth. That on the 11th day of February, 1904, the Defendant left the service of the Plaintiff and
refused to make a further compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the Plaintiff commenced an action in the Court of First
Instance of the city of Manila to recover from the Defendant the sum of 269. 23 dollars, which amount
the Plaintiff claimed had been paid to the Defendant as expenses incurred in traveling from Chicago
to Manila, and as half-salary for the period consumed in travel.
Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224
should constitute a part of said contract.
To the complaint of the Plaintiff the Defendant filed a general denial and a special defense, alleging in
his special defense that the Government of the Philippine Islands had amended Laws No. 80 and No.
224 and had thereby materially altered the said contract, and also that he was a minor at the time the
contract was entered into and was therefore not responsible under the law.
To the special defense of the Defendant the Plaintiff filed a demurrer, which demurrer the court
sustained.
Upon the issue thus presented, and after hearing the evidence adduced during the trial of the cause,
the lower court rendered a judgment against the Defendant and in favor of the Plaintiff for the sum of
265. 90 dollars. The lower court found that at the time the Defendant quit the service of
the Plaintiff there was due him from the said Plaintiff the sum of 3. 33 dollars, leaving a balance due
the Plaintiff in the sum of 265. 90 dollars. From this judgment the Defendant appealed and made the
following assignments of error: chanrobles virtualawlibrary
1. The court erred in sustaining Plaintiff’s demurrer to Defendant’s special defenses.
2. The court erred in rendering judgment against the Defendant on the facts.
With reference to the above assignments of error, it may be said that the mere fact that the legislative
department of the Government of the Philippine Islands had amended said Acts No. 80 and No. 224
by Acts No. 643 and No. 1040 did not have the effect of changing the terms of the contract made
between the Plaintiff and the Defendant. The legislative department of the Government is expressly
prohibited by section 5 of the Act of Congress of 1902 from altering or changing the terms of a
contract. The right which the Defendant had acquired by virtue of Acts No. 80 and No. 224 had not
been changed in any respect by the fact that said laws had been amended. These acts, constituting
the terms of the contract, still constituted a part of said contract and were enforceable in favor of
the Defendant.
The Defendant alleged in his special defense that he was a minor and therefore the contract could not
be enforced against him. The record discloses that, at the time the contract was entered into in the
State of Illinois, he was an adult under the laws of that State and had full authority to contract.
The Plaintiff [the Defendant] claims that, by reason of the fact that, under that laws of the Philippine
Islands at the time the contract was made, made persons in said Islands did not reach their majority
until they had attained the age of 23 years, he was not liable under said contract, contending that the
laws of the Philippine Islands governed. It is not disputed — upon the contrary the fact is admitted —
that at the time and place of the making of the contract in question the Defendant had full capacity to
make the same. No rule is better settled in law than that matters bearing upon the execution,
interpretation and validity of a contract are determined b the law of the place where the contract is
made. (Scudder vs. Union National Bank, 91 U. S., 406.) cralaw Matters connected with its
performance are regulated by the law prevailing at the place of performance. Matters respecting a
remedy, such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend
upon the law of the place where the suit is brought. (Idem.) cralaw
The Defendant’s claim that he was an adult when he left Chicago but was a minor when he arrived at
Manila; that he was an adult a the time he made the contract but was a minor at the time
the Plaintiff attempted to enforce the contract, more than a year later, is not tenable.
Our conclusions with reference to the first above assignment of error are, therefore.
First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of the contract in
question; and
Second. The Plaintiff [Defendant] being fully qualified to enter into the contract at the place and time
the contract was made, he cannot plead infancy as a defense at the place where the contract is being
enforced.
We believe that the above conclusions also dispose of the second assignment of error.
For the reasons above stated, the judgment of the lower court is affirmed, with costs.
Arellano, C.J., Torres, Mapa, Carson and Willard, JJ., concur.

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PEOPLE V. CAYAT (1939) |EQUAL PROTECTION CLAUSE

February 5, 2017

G.R. No. L-45987, 68 Phil 12, May 5, 1939


DOCTRINE: Protection of laws is not violated by a legislation based on reasonable classification. The
classification to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to existing conditions only; (4) must apply equally to all
members of the same class.

FACTS:
1. Respondent Cayat, native of Baguio, Benguet and a member of the non-Christian tribe was found
guilty of violating sections 2 and 3 of Act No. 1639 for possessing an intoxicating liquor (one bottle
of gin) which is not a native wine.
2. Section 2 of the said act prohibits any native of the Philippines who is a member of the non-
Christian tribe to buy, receive and possess any intoxicating liquor other than their so-called native
wines. Consequently, Section 3 thereof provides for its punishment.
3. Cayat challenges the constitutionality of Act No. 1639 on the grounds that it is discriminatory and
denies the equal protection of the laws, violative of the due process and it is an improper exercise
of police power.
ISSUES:
1. Whether the Act No. 1639 violates the equal protection clause?
RULING:
 No, the Act No. 1639 is not violative of the equal protection clause.
 Equal protection of the laws is not violated by a legislation based on reasonable classifications. The
classification to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to existing conditions only; (4) must apply equally to all
members of the same class.
 Act No. 1639 satisfies these requirements. On the first requisite, the classification rests on real
and substantial distinctions. The non-Christian tribes refer not to the religious belief, but in a way to
the geographical and more directly to the natives of the Philippines of a low grade of
civilization. Second, Act No. 1639 was designed to insure peace and order among the non-
Christian tribes. The experience of the past and the lower court observed that the use of highly
intoxicating liquors by the non-Christian tribes often resulted in lawlessness and crimes, which
hamper the efforts of the Government to raise their standard of life and civilization. Third, the said
act is intended to apply for all times as long as the conditions exist. Legislature understood that
civilization of a people is a slow process and that hand in hand with it must go measures of
protection and security. Fourth, the act applies equally to all members of same class.
68 Phil. 12

MORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a fine
of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal to the Court of
First Instance, the following information was filed against him:
"That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of the
Philippines, and within the jurisdiction of this court, the above-named accused, Cayat, being a
member of the non-Christian tribes, did then and there willfully, unlawfully, and illegally receive,
acquire, and have in his possession and under his control or custody, one bottle of A-l-1 gin, an
intoxicating liquor, other than the so-called native wines and liquors which the members of such tribes
have been accustomed themselves to make prior to the passage of Act No. 1639."
Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts alleged in
the information, but pleaded not guilty to the charge for the reasons adduced in his demurrer and
submitted the case on the pleadings. The trial court found him guilty of the crime charged and
sentenced him to pay a fine of fifty pesos (P50) or suffer subsidiary imprisonment in ease of
insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No. 1639 read:
"SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a non-
Christian tribe within the meaning of Act Numbered Thirteen hundred and ninety-seven, to buy,
receive, have in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of
any kind, other than the so-called natives wines and liquors which the members of such tribes have
been accustomed themselves to make prior to the passage of this Act, except as provided in section
one hereof; and it shall be the duty of any police officer or other duly authorized agent of the Insular or
any provincial, municipal or township government to seize and forthwith destroy any such liquors
found unlawfully in the possession of any member of a non-Christian tribe.
"SEC. 3. Any person violating the provisions of section one or section two of this Act shall, upon
conviction thereof, be punishable for each offense by a fine of not exceeding two hundred pesos or by
imprisonment for a term not exceeding six months, in the discretion of the court."
The accused challenges the constitutionality of the Act on the following grounds:
(1) That it is discriminatory and denies the equal protection of the laws;
(2) That it is violative of the due process clause of the Constitution; and
(3) That it is an improper exercise of the police power of the state.
Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said that as
these less civilized elements of the Filipino population are "jealous of their rights in a democracy," any
attempt to treat them with discrimination or "mark them as inferior or less capable race and less
entitled" will meet with their instant challenge. As the constitutionality of the Act here involved is
questioned for purposes thus mentioned, it becomes imperative to examine and resolve the issues
raised in the light of the policy of the government towards the non-Christian tribes adopted and
consistently followed from the Spanish times to the present, more often with sacrifice and tribulation
but always with conscience and humanity.
As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude towards
these inhabitants, and in the different laws of the Indies, their concentration in so-called "reducciones"
(communities) had been persistently attempted with the end in view of according them the "spiritual
and temporal benefits" of civilized life. Throughout the Spanish regime, it had been regarded by the
Spanish Government as a sacred "duty to conscience and humanity" to civilize these less fortunate
people living "in the obscurity of ignorance" and to accord them the "moral and material advantages"
of community life and the "protection and vigilance afforded them by the same laws." (Decree of the
Governor-General of the Philippines, Jan. 14, 1887.) This policy had not been deflected from during
the American period. President McKinley in his instructions to the Philippine Commission of April 7,
1900, said:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous practices and
introduce civilized customs."
Since then and up to the present, the government has been constantly vexed with the problem of
determining "those practicable means of bringing about their advancement in civilization and material
prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or guiding them in
the path of civilization," the present government "has chosen to adopt the latter measure as one more
in accord with humanity and with the national conscience." (Memorandum of Secretary of the Interior,
quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this end, their homes and
firesides have been brought in contact with civilized communities through a network of highways and
communications; the benefits of public education have to them been extended; and more lately, even
the right of suffrage. And to complement this policy of attraction and assimilation, the Legislature has
passed Act No. 1639 undoubtedly to secure for them the blessings of peace and harmony; to
facilitate, and not to mar, their rapid and steady march to civilization and culture. It is, therefore, in
this light that the Act must be understood and applied.
It is an established principle of constitutional law that the guaranty of the equal protection of the laws
is not violated by a legislation based on reasonable classification. And the classification, to be
reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law;
(3) must not be limited to existing conditions only; and (4) must apply equally to all members of the
same class. (Borgnis vs. Falk Co., 133 N. W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U. S.,
61; 55 Law. ed., 369; Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and Hongkong &
Shanghai Banking Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz., 187.)
Act No. 1639 satisfies these requirements. The classification rests on real or substantial, not merely
imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage," as counsel
for the appellant asserts, but upon the degree of civilization and culture. "The term 'non-Christian
tribes' refers, not to religious belief, but, in a way, to the geographical area, and, more directly, to
natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart
from settled communities." (Rubi vs. Provincial Board of Mindoro, supra.) This distinction is
unquestionably reasonable, for the Act was intended to meet the peculiar conditions existing in the
non-Christian tribes. The exceptional cases of certain members thereof who at present have reached
a position of cultural equality with their Christian brothers, cannot affect the reasonableness of the
classification thus established.
That it is germane to the purposes of law cannot be doubted; The prohibition "to buy, receive, have in
his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind, other
than the so-called native wines and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of this Act," is unquestionably designed to insure peace and
order in and among the non-Christian tribes. It has been the sad experience of the past, as the
observations of the lower court disclose, that the free use of highly intoxicating liquors by the non-
Christian tribes have often resulted in lawlessness and crimes, thereby hampering the efforts of the
government to raise their standard of life and civilization.
The law is not limited in its application to conditions existing at the time of its enactment. It is intended
to apply for all times as long as those conditions exist. The Act was not predicated, as counsel for
appellant asserts, upon the assumption that the non-Christians are "impermeable to any civilizing
influence." On the contrary, the Legislature understood that the civilization of a people is a slow
process and that hand in hand with it must go measures of protection and security.
Finally, that the Act applies equally to all members of the class is evident from a perusal thereof. That
it may be unfair in its operation against a certain number of non-Christians by reason of their degree
of culture, is not an argument against the equality of its application.
Appellant contends that that provision of the law empowering any police officer or other duly
authorized agent of the government to seize and forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of the non-Christian tribes is violative of the due process
of law provided in the Constitution. But this provision is not involved in the case at bar. Besides, to
constitute due process of law, notice and hearing are not always necessary. This rule is especially
true where much must be left to the discretion of the administrative officials in applying a law to
particular cases. (McGehee, Due Process of Law, p. 371, cited with approval in Rubi vs. Provincial
Board of Mindoro, supra.) Due process of law means simply: (1) that there shall be a law prescribed
in harmony with the general powers of the legislative department of the government; (2) that it shall
be reasonable in its operation ; (3) that it shall be enforced according to the regular methods of
procedure prescribed; and (4) that it shall be applicable alike to all citizens of the state or to all of a
class. (U. S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal by the United States Supreme Court,
218 U. S., 302: 54 Law. ed., 1049.) Thus, a person's property may be seized by the government in
payment of taxes without judicial hearing; or property used in violation of law may be confiscated (U.
S. vs. Surla, 20 Phil., 163, 167), or when the property constitutes corpus delicti, as in the instant case
(Moreno vs. Ago Chi, 12 Phil., 439, 442).
Neither is the Act an improper exercise of the police power of the state. It has been said that the
police power is the most insistent and least limitable of all the powers of the government. It has been
aptly described as a power coextensive with self-protection and constitutes the law of overruling
necessity. Any measure intended to promote the health, peace, morals, education and good order of
the people or to increase the industries of the state, develop its resources and add to its wealth and
prosperity (Barbier vs. Connolly, 113 U. S., 27), is a legitimate exercise of the police power, and
unless shown to be whimsical or capricious as to unduly interfere with the rights of an individual, the
same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian tribes so
as to remove all obstacles to their moral and intellectual growth and, eventually, to hasten their
equalization and unification with the rest of their Christian brothers. Its ultimate purpose can be no
other than to unify the Filipino people with a view to a greater Philippines,
The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable
race." On the contrary, all measures thus far adopted in the promotion of the public policy towards
them rest upon a recognition of their inherent right to equality in the enjoyment of those privileges now
enjoyed by their Christian brothers. But as there can be no true equality before the law, if there is, in
fact, no equality in education, the government has endeavored, by appropriate measures, to raise
their culture and civilization and secure for them the benefits of their progress, with the ultimate end in
view of placing them with their Christian brothers on the basis of true equality. It is indeed gratifying'
that the non-Christian tribes "far from retrograding, are definitely asserting themselves in a
competitive world," as appellant's attorney impressively avers, and that they are "a virile, up-and-
coming people eager to take their place in the world's social scheme." As a matter of fact, there are
now lawyers, doctors and other professionals educated in the best institutions here and in America.
Their active participation in the multifarious welfare activities of community life or in the delicate duties
of government is certainly a source of pride and gratification to people of the Philippines. But whether
conditions have so changed as to warrant a partial or complete abrogation of the law, is a matter
which rests exclusively within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther than to inquire whether the
Legislature had the power to enact the law. If the power exists, and we hold it does exist, the wisdom
of the policy adopted, and the adequacy under existing conditions of the measures enacted to forward
it, are matters which this court has no authority to pass upon. And, if in the application of the law, the
educated non-Christians shall incidentally suffer, the justification still exists in the all-comprehending
principle of salus populi supremo, est lex. When the public safety or the public morals require the
discontinuance of a certain practice by a certain class of persons, the hand of the Legislature cannot
be stayed from providing for its discontinuance by any incidental inconvenience which some members
of the class may suffer. The private interests of such members must yield to the paramount interests
of the nation (Cf. Boston Beer Co. vs. Mass., 97 U. S., 25; 24 Law. ed., 939).
Judgment is affirmed, with costs against appellant.
Avanceña, C. J., Villa-Real, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.
Rubi vs Provincial Board of Mindoro
Constitutional Law : Article VI, Sec. 1(Legislative Power; Non-Delegation)

G.R. No. L-14078; March 7, 1919; 39 Phil 660

FACTS:

The case is an application for habeas corpus in favor of Rubi and other Manguianes of the Province
of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial
officials of that province. Rubi and his companions are said to be held on the reservation established
at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away from the reservation.

The provincial governor of Mindoro and the provincial board thereof directed the Manguianes in
question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the
provincial governor and approved by the provincial board. The action was taken in accordance with
section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the
Interior as required by said action.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christian upon sites selected by provincial governor. — With the
prior approval of the Department Head, the provincial governor of any province in which non-Christian
inhabitants are found is authorized, when such a course is deemed necessary in the interest of law
and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to
be selected by him an approved by the provincial board.

Petitioners, however, challenge the validity of this section of the Administrative Code.

ISSUE:

Does section 2145 of the Administrative Code of 1917 constitute an unlawful delegation of legislative
power by the Philippine Legislature to a provincial official and a department head, therefore making it
unconstitutional?

HELD:

No. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be
exercised by the provincial governor and the provincial board.

In determining whether the delegation of legislative power is valid or not, the distinction is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be exercised under and in pursuance
of the law. The first cannot be done; to the later no valid objection can be made. Discretion may be
committed by the Legislature to an executive department or official. The Legislature may make
decisions of executive departments of subordinate official thereof, to whom it has committed the
execution of certain acts, final on questions of fact. The growing tendency in the decision is to give
prominence to the "necessity" of the case.

In enacting the said provision of the Administrative Code, the Legislature merely conferred upon the
provincial governor, with the approval of the provincial board and the Department Head, discretionary
authority as to the execution of the law. This is necessary since the provincial governor and the
provincial board, as the official representatives of the province, are better qualified to judge “when
such as course is deemed necessary in the interest of law and order”. As officials charged with the
administration of the province and the protection of its inhabitants, they are better fitted to select sites
which have the conditions most favorable for improving the people who have the misfortune of being
in a backward state.

Hence, Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative
power by the Philippine Legislature to provincial official and a department head.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,


vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.


Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History


(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American
jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight
change in phraseology, can be made to introduce the present opinion — This cause, in every point of
view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling
power of the constitution and laws, the rights if they have any, the political existence of a people, the
personal liberty of a citizen, are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to
introduce the facts and the issues, next to give a history of the so called "non-Christians," next to
compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the
constitutional questions presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of
Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial
officials of that province. Rubi and his companions are said to be held on the reservation established
at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which
is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to


make a permanent settlement,

"Whereas the provincial governor of any province in which non-Christian inhabitants


are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in
the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of
Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and

"Resolved further, That Mangyans may only solicit homesteads on this reservation providing
that said homestead applications are previously recommended by the provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved
by the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No.
2 which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes
in Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that
all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the
Baco River including those in the districts of Dulangan and Rubi's place in Calapan,
to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the
executive order of the governor of the same province copied in paragraph 3, were necessary
measures for the protection of the Mangyanes of Mindoro as well as the protection of public
forests in which they roam, and to introduce civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act
No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the
sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos.
2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan,
selected by the provincial governor and approved by the provincial board. The action was taken in
accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the
Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this
section of the Administrative Code. This, therefore, becomes the paramount question which the court
is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. —


With the prior approval of the Department Head, the provincial governor of any province in
which non-Christian inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take up their habitation
on sites on unoccupied public lands to be selected by him an approved by the provincial
board.

In connection with the above-quoted provisions, there should be noted section 2759 of the same
Code, which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian


who shall refuse to comply with the directions lawfully given by a provincial governor,
pursuant to section two thousand one hundred and forty-five of this Code, to take up
habitation upon a site designated by said governor shall upon conviction be imprisonment for
a period not exceeding sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would read: Section
2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial
laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later
be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the
phrase in its proper category, and in order to understand the policy of the Government of the
Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set
down a skeleton history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in
Book VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at
Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the
Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo,
on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical
law, and in order that they may forget the blunders of their ancient rites and ceremonies to the
end that they may live in harmony and in a civilized manner, it has always been endeavored,
with great care and special attention, to use all the means most convenient to the attainment
of these purposes. To carry out this work with success, our Council of the Indies and other
religious persons met at various times; the prelates of new Spain assembled by order of
Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six —
all of which meetings were actuated with a desire to serve God an our Kingdom. At these
meetings it was resolved that indios be made to live in communities, and not to live in places
divided and separated from one another by sierras and mountains, wherein they are deprived
of all spiritual and temporal benefits and wherein they cannot profit from the aid of our
ministers and from that which gives rise to those human necessities which men are obliged to
give one another. Having realized that convenience of this resolution, our kings, our
predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and
governors to execute with great care and moderation the concentration of
the indios into reducciones; and to deal with their doctrine with such forbearance and
gentleness, without causing inconveniences, so that those who would not presently settle and
who would see the good treatment and the protection of those already in settlements would,
of their own accord, present themselves, and it is ordained that they be not required to pay
taxes more than what is ordered. Because the above has been executed in the greater part of
our Indies, we hereby order and decree that the same be complied with in all the remaining
parts of the Indies, and the encomederos shall entreat compliance thereof in the manner and
form prescribed by the laws of this title.

xxx xxx xxx

LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the facilities of
waters. lands, and mountains, ingress and egress, husbandry and passageway of one league
long, wherein the indios can have their live stock that they may not be mixed with those of the
Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY


HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in the
places left by them. We hereby order that no change shall be made in this respect, and that
they be allowed to retain the lands held by them previously so that they may cultivate them
and profit therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY,
OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to
remove the pueblos or the reducciones once constituted and founded, without our express
order or that of the viceroy, president, or the royal district court, provided, however, that
the encomenderos, priests, or indios request such a change or consent to it by offering or
giving information to that en. And, because these claims are often made for private interests
and not for those of the indios, we hereby order that this law be always complied with,
otherwise the change will be considered fraudulently obtained. The penalty of one thousand
pesos shall be imposed upon the judge or encomendero who should violate this law.

LAW XV.
Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE


"INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of the
same reduccion; if there be more than eighty houses, there should be two mayors and two
aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more
than two mayors and four aldermen, If there be less than eighty indios but not less than forty,
there should be not more than one mayor and one alderman, who should annually elect nine
others, in the presence of the priests , as is the practice in town inhabited by Spaniards
and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581.
At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid,
on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4,
Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reducciones and towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature,
of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the
wrongs done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their blunders and vices
which may corrupt and pervert the goal which we desire to reach with regard to their
salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon
the commission of the acts above-mentioned which should not be tolerated in the towns, and
that the viceroys, presidents, governors, and courts take great care in executing the law within
their powers and avail themselves of the cooperation of the ministers who are truly honest. As
regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children
of indias and born among them, and who are to inherit their houses and haciendas, they all
not be affected by this law, it appearing to be a harsh thing to separate them from their
parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of
the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the
Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory recognized
as an integral part of a nation should respect and obey the laws in force therein; while, on
other hand, it is the duty to conscience and to humanity for all governments to civilize those
backward races that might exist in the nation, and which living in the obscurity of ignorance,
lack of all the nations which enable them to grasp the moral and material advantages that
may be acquired in those towns under the protection and vigilance afforded them by the same
laws.

It is equally highly depressive to our national honor to tolerate any longer the separation and
isolation of the non-Christian races from the social life of the civilized and Christian towns; to
allow any longer the commission of depredations, precisely in the Island of Luzon wherein is
located the seat of the representative of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with this
most important question, and that much has been heretofore accomplished with the help and
self-denial of the missionary fathers who have even sacrificed their lives to the end that those
degenerate races might be brought to the principles of Christianity, but the means and the
preaching employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in those which
have not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things, taking


into account the prestige which the country demands and the inevitable duty which every
government has in enforcing respect and obedience to the national laws on the part of all who
reside within the territory under its control, I have proceeded in the premises by giving the
most careful study of this serious question which involves important interests for civilization,
from the moral and material as well as the political standpoints. After hearing the illustrious
opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of
Northern Luzon, and also after finding the unanimous conformity of the meeting held with the
Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders
of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of
the Council of Authorities, held for the object so indicated, I have arrived at an intimate
conviction of the inevitable necessity of proceeding in a practical manner for the submission
of the said pagan and isolated races, as well as of the manner and the only form of
accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed
by the common law, save those exceptions prescribed in this decree which are bases upon
the differences of instructions, of the customs, and of the necessities of the different pagan
races which occupy a part of its territory.

2. The diverse rules which should be promulgated for each of these races — which may be
divided into three classes; one, which comprises those which live isolated and roaming about
without forming a town nor a home; another, made up of those subdued pagans who have not
as yet entered completely the social life; and the third, of those mountain and rebellious
pagans — shall be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in the work of
having these races learn these rules. These rules shall have executive character, beginning
with the first day of next April, and, as to their compliance, they must be observed in the
manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all
the means which their zeal may suggest to them, to the taking of the census of the inhabitants
of the towns or settlement already subdued, and shall adopt the necessary regulations for the
appointment of local authorities, if there be none as yet; for the construction of courts and
schools, and for the opening or fixing up of means of communication, endeavoring, as
regards the administrative organization of the said towns or settlements, that this be finished
before the first day of next July, so that at the beginning of the fiscal year they shall have the
same rights and obligations which affect the remaining towns of the archipelago, with the only
exception that in the first two years they shall not be obliged to render personal services other
than those previously indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate for
cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and
only in case of absolute necessity shall a new residence be fixed for them, choosing for this
purpose the place most convenient for them and which prejudices the least their interest; and,
in either of these cases, an effort must be made to establish their homes with the reach of the
sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed
force composed precisely of native Christian, the organization and service of which shall be
determined in a regulations based upon that of the abolished Tercios de Policia (division of
the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the rights
and duties affecting them and the liberty which they have as to where and now they shall till
their lands and sell the products thereof, with the only exception of the tobacco which shall be
bought by the Hacienda at the same price and conditions allowed other producers, and with
the prohibition against these new towns as well as the others from engaging in commerce of
any other transaction with the rebellious indios, the violation of which shall be punished with
deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indios shall be fixed; and whoever should go beyond the said limits shall be
detained and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the
Catholic Church, all by this fact along be exempt for eight years from rendering personal
labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to live in
towns; unity among their families; concession of good lands and the right to cultivate them in
the manner they wish and in the way them deem most productive; support during a year, and
clothes upon effecting submission; respect for their habits and customs in so far as the same
are not opposed to natural law; freedom to decide of their own accord as to whether they
want to be Christians or not; the establishment of missions and families of recognized honesty
who shall teach, direct, protect, and give them security and trust them; the purchase or facility
of the sale of their harvests; the exemption from contributions and tributes for ten years and
from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by
the local authorities as the ones who elect such officials under the direct charge of the
authorities of the province or district.

10. The races indicated in the preceding article, who voluntarily admit the advantages offered,
shall, in return, have the obligation of constituting their new towns, of constructing their town
hall, schools, and country roads which place them in communication with one another and
with the Christians; provided, the location of these towns be distant from their actual
residences, when the latter do not have the good conditions of location and cultivations, and
provided further the putting of families in a place so selected by them be authorized in the
towns already constituted.

11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their rebellious
attitude on the first of next April, committing from now on the crimes and vexations against the
Christian towns; and for the this purposes, the Captain General's Office shall proceed with the
organization of the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term,
they shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a year, and for
this purpose the military headquarters shall immediately order a detachment of the military
staff to study the zones where such operations shall take place and everything conducive to
the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates
to my authorities, local authorities, and other subordinates to may authority, civil as well as
military authorities, shall give the most effective aid and cooperation to the said forces in all
that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a


council or permanent commission which shall attend to and decide all the questions relative to
the application of the foregoing regulations that may be brought to it for consultations by the
chiefs of provinces and priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing, in
brining about due compliance with this decree, shall be promulgated by the respective official
centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la
Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the best
method for dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government in the
Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly
approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions
of these instructions have remained undisturbed by subsequent congressional legislation. One
paragraph of particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government and under which many of these tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal governments should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for
the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body
and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly.
The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was
to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain
exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of
August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative
jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine
Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district
to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao
and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and
representatives for the territory which, at the time of the passage of the Jones Law, was not
represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a
bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision
over the public affairs of the inhabitants which are represented in the Legislature by appointed
senators and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between the territory not
inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian
tribes, and the territory which is inhabited by Moros or other non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the Philippine
Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of
Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act;
Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and
government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No.
1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act
No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and
Sulu. The major portion of these laws have been carried forward into the Administrative Codes of
1916 an d1917.

Of more particular interest are certain special laws concerning the government of the primitive
peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States
Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422,
445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces
of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva
Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these
laws, because referring to the Manguianes, we insert Act No. 547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL


GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government, the provincial governor is authorized, subject to the approval of the Secretary of
the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their
designations and badges of office, and to prescribe their powers and duties: Provided, That
the powers and duties thus prescribed shall not be in excess of those conferred upon
township officers by Act Numbered Three hundred and eighty-seven entitled "An Act
providing for the establishment of local civil Governments in the townships and settlements of
Nueva Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is
further authorized, when he deems such a course necessary in the interest of law and order,
to direct such Manguianes to take up their habitation on sites on unoccupied public lands to
be selected by him and approved by the provincial board. Manguianes who refuse to comply
with such directions shall upon conviction be imprisonment for a period not exceeding sixty
days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to
acquire the knowledge and experience necessary for successful local popular government,
and his supervision and control over them shall be exercised to this end, an to the end that
law and order and individual freedom shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes
has advanced sufficiently to make such a course practicable, it may be organized under the
provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and
eighty-seven, as a township, and the geographical limits of such township shall be fixed by
the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same
is hereby expedited in accordance with section two of 'An Act prescribing the order of
procedure by the Commission in the enactment of laws,' passed September twenty-sixth,
nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and
1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act
No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained
the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and
consistent practice with reference to the methods to be followed for their advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are
to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be
found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian Tribes
and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the
Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase,
there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the
favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a
Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative
Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos.
2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine
Commission.

The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative
Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving
to it a religious signification. Obviously, Christian would be those who profess the Christian religion,
and non-Christians, would be those who do not profess the Christian religion. In partial corroboration
of this view, there could also be cited section 2576 of the last Administrative Code and certain well-
known authorities, as Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt,
"Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See
Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to ascertain what is its
true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by the
provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine
Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-
Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth
senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the
Philippine Islands inhabited by Moros or other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section
of this article, preceding section 2145, makes the provisions of the article applicable only in specially
organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has
never seen fit to give all the powers of local self-government. They do not, however, exactly coincide
with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still
a geographical description.

It is well-known that within the specially organized provinces, there live persons some of who are
Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec.
2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise
inadquate. The reason it that the motive of the law relates not to a particular people, because of their
religion, or to a particular province because of its location, but the whole intent of the law is predicated
n the civilization or lack of civilization of the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce
the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for
so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact
designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian
tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United
States as to the future political status of the Philippine Islands and to provide a more autonomous
government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906,
circulated by the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by
reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et
seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged
the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-
Christian tribes . . . with special view to determining the most practicable means for bringing about
their advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal
marriage in connection with article 423 of the Penal code concerning the husband who surprises his
wife in the act of adultery. In discussing the point, the court makes use of the following language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage
of so-called non-Christians or members of uncivilized tribes, celebrated within that province
without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also
that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order
of intelligence, uncultured and uneducated, should be taken into consideration as a second
marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called upon to
interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted
much of the legislation relating to the so-called Christians and who had these people under his
authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official
addressed a letter to all governor of provinces, organized under the Special Provincial Government
Act, a letter which later received recognition by the Governor-General and was circulated by the
Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were
originally non-Christian but have recently been baptized or who are children of persons who
have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered
Christian or non-Christians.

It has been extremely difficult, in framing legislation for the tribes in these islands which are
not advanced far in civilization, to hit upon any suitable designation which will fit all cases.
The number of individual tribes is so great that it is almost out of the question to enumerate all
of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the one
most satisfactory, but the real purpose of the Commission was not so much to legislate for
people having any particular religious belief as for those lacking sufficient advancement so
that they could, to their own advantage, be brought under the Provincial Government Act and
the Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to
which the person baptized has attained at the time the act of baptism is performed. For
practical purposes, therefore, you will give the member of so-called "wild tribes" of your
province the benefit of the doubt even though they may recently have embraced Christianity.

The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be afforded
to them should be the degree of civilization to which they have attained and you are
requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in the
opinion above expressed and who will have the necessary instructions given to the governors
of the provinces organized under the Provincial Government Act. (Internal Revenue Manual,
p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the
following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other
better classification has as yet been made the present classification should be allowed to
stand . . . I believe the term carries the same meaning as the expressed in the letter of the
Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of
civilization rather than of religious denomination, for the hold that it is indicative of religious
denomination will make the law invalid as against that Constitutional guaranty of religious
freedom.

Another official who was concerned with the status of the non-Christians, was the Collector of Internal
Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas.
Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return
indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of
the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal
Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):

The internal revenue law exempts "members of non-Christian tribes" from the payment of
cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean
not that persons who profess some form of Christian worship are alone subject to the cedula
tax, and that all other person are exempt; he has interpreted it to mean that all persons
preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula
tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are
subject to said tax so long as they live in cities or towns, or in the country in a civilized
condition. In other words, it is not so much a matter of a man's form of religious worship or
profession that decides whether or not he is subject to the cedula tax; it is more dependent on
whether he is living in a civilized manner or is associated with the mountain tribes, either as a
member thereof or as a recruit. So far, this question has not come up as to whether a
Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian
tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew
of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was
not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East
Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula
taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen,
Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to
that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are
therefore being collected by this Office in all parts of these Islands on the broad ground that
civilized people are subject to such taxes, and non-civilized people preserving their tribal
relations are not subject thereto.

(Sgd.) JNO. S. HORD,


Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327,
approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads:

In view of the many questions that have been raised by provincial treasurers regarding cedula
taxes due from members of non-Christian tribes when they come in from the hills for the
purposes of settling down and becoming members of the body politic of the Philippine Islands,
the following clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact
that they do not profess Christianity, but because of their uncivilized mode of life and low state
of development. All inhabitants of the Philippine Islands classed as members of non-Christian
tribes may be divided into three classes in so far as the cedula tax law is concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life,
severs whatever tribal relations he may have had and attaches himself civilized community,
belonging a member of the body politic, he thereby makes himself subject to precisely the
same law that governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other taxes are due from
him as from other members thereof. If he comes in after the expiration of the delinquency
period the same rule should apply to him as to persons arriving from foreign countries or
reaching the age of eighteen subsequent to the expiration of such period, and a regular class
A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without
requiring him to pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or not
a man is subject to the regular cedula tax is not the circumstance that he does or does not
profess Christianity, nor even his maintenance of or failure to maintain tribal relations with
some of the well known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this reason so called
"Remontados" and "Montescos" will be classed by this office as members of non-Christian
tribes in so far as the application of the Internal Revenue Law is concerned, since, even
though they belong to no well recognized tribe, their mode of life, degree of advancement and
so forth are practically the same as those of the Igorrots and members of other recognized
non-Christina tribes.

Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations
No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on
April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the
regulations is practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary
request the opinion of the Attorney-General as to the status of a non-Christian who has been baptized
by a minister of the Gospel. The precise questions were these: "Does he remain non-Christian or is
he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an
infraction of the law and does the person selling same lay himself liable under the provision of Act No.
1639?" The opinion of Attorney-General Avanceña, after quoting the same authorities hereinbefore
set out, concludes:

In conformity with the above quoted constructions, it is probable that is probable that the
person in question remains a non-Christian, so that, in purchasing intoxicating liquors both he
and the person selling the same make themselves liable to prosecution under the provisions
of Act No. 1639. At least, I advise you that these should be the constructions place upon the
law until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the provisions
of the Administrative code which we are studying, we submit that said phrase does not have
its natural meaning which would include all non-Christian inhabitants of the Islands, whether
Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of
the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in
the mountains, beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of the
Philippines which live in tribes as non-Christian tribes, as distinguished from the common
Filipinos which carry on a social and civilized life, did not intended to establish a distinction
based on the religious beliefs of the individual, but, without dwelling on the difficulties which
later would be occasioned by the phrase, adopted the expression which the Spanish
legislation employed to designate the uncivilized portion of the inhabitants of the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act
No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of
uncivilized tribes of the Philippines, not only because this is the evident intention of the law,
but because to give it its lateral meaning would make the law null and unconstitutional as
making distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows,
then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized
Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et
seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to
be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular
Affairs, War Department, a sub-division under the title non-Christian tribes is, "Physical and Political
Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture
and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials,
specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a
way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of
civilization, usually living in tribal relationship apart from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of
1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres
de Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It
may be that the use of this word is applicable to a great number of Filipinos, but nevertheless
it has been applied only to certain inhabitants of Mindoro. Even in primitive times without
doubt this name was given to those of that island who bear it to-day, but its employed in three
Filipino languages shows that the radical ngian had in all these languages a sense to-day
forgotten. In Pampango this ending still exists and signifies "ancient," from which we can
deduce that the name was applied to men considered to be the ancient inhabitants, and that
these men were pushed back into the interior by the modern invaders, in whose language
they were called the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have not
advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic
people. They number approximately 15,000. The manguianes have shown no desire for community
life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to
make it practicable to bring them under any form of municipal government. (See Census of the
Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippines
Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when and
how the guardianship shall be terminated. The Indians are always subject to the plenary authority of
the United States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the
Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring
Indians." After quoting the Act, the opinion goes on — "This act avowedly contemplates the
preservation of the Indian nations as an object sought by the United States, and proposes to effect
this object by civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United States vs. Kagama
([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution
which gives Congress "power to regulate commerce with foreign nations, and among the several
States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of
the Indians in the United States (a more extended account of which can be found in Marshall's opinion
in Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both before and
since the Revolution, to the people of the United States, has always been an anomalous one
and of a complex character.

Following the policy of the European Governments in the discovery of American towards the
Indians who were found here, the colonies before the Revolution and the States and the
United States since, have recognized in the Indians a possessory right to the soil over which
they roamed and hunted and established occasional villages. But they asserted an ultimate
title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other
nations or peoples without the consent of this paramount authority. When a tribe wished to
dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a
treaty with the tribe was the only mode in which this could be done. The United States
recognized no right in private persons, or in other nations, to make such a purchase by treaty
or otherwise. With the Indians themselves these relation are equally difficult to define. They
were, and always have been, regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nation not a possessed of the fall
attributes of sovereignty, but as a separate people, with the power of regulating their internal
and social relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These Indian
tribes are the wards of the nation. The are communities dependent on the United States.
dependent largely for their daily food. Dependent for their political rights. They owe no
allegiance to the States, and receive from the no protection. Because of the local ill feeling,
the people of the States where they are found are often their deadliest enemies. From their
very weakness and helplessness, so largely due to the course of dealing of the Federal
Government with them and the treaties in which it has been promised, there arise the duty of
protection, and with it the power. This has always been recognized by the Executive and by
Congress, and by this court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and diminished in
numbers, is necessary to their protection, as well as to the safety of those among whom they
dwell. it must exist in that government, because it never has existed anywhere else, because
the theater of its exercise is within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered
was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit
the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to
statehood. The court looked to the reports of the different superintendent charged with guarding their
interests and founds that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that during the Spanish
dominion, the Indians of the pueblos were treated as wards requiring special protection, where
subjected to restraints and official supervisions in the alienation of their property." And finally, we not
the following: "Not only does the Constitution expressly authorize Congress to regulate commerce
with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a superior and civilized nation the power and
the duty of exercising a fostering care and protection over all dependent Indian communities within its
borders, whether within its original territory or territory subsequently acquired, and whether within or
without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the
courts to overrule the judgment of Congress. For very good reason, the subject has always been
deemed political in nature, not subject to the jurisdiction of the judicial department of the government.
(Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278;
U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the
Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204
U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S.,
286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.],
795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it
has full authority to pass such laws and authorize such measures as may be necessary to give to the
Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial
decisions.

The only case which is even remotely in point and which, if followed literally, might result in the
issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was
a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at
the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The
petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca
tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn
from the tribe, and completely severed their tribal relations therewith, and had adopted the general
habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were arrested and restrained
of their liberty by order of the respondent, George Crook. The substance of the return to the writ was
that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they
had fled or escaped form a reservation situated some place within the limits of the Indian Territory —
had departed therefrom without permission from the Government; and, at the request of the Secretary
of the Interior, the General of the Army had issued an order which required the respondent to arrest
and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had
caused the relators to be arrested on the Omaha Indian Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment by habeas
corpus. The second question, of much greater importance, related to the right of the Government to
arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from
which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the
Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court
said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade
and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited
power over the persons who go upon the reservations without lawful authority . . . Whether such an
extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not
be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise
of the power must be upheld." The decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal
judge, in all cases where he may be confined or in custody under color of authority of the
United States or where he is restrained of liberty in violation of the constitution or laws of the
United States.

2. That General George Crook, the respondent, being commander of the military department
of the Platte, has the custody of the relators, under color of authority of the United States, and
in violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian
Territory, as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate
white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so
long as they obey the laws and do not trespass on forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in violation of
the laws thereof, the relators must be discharged from custody, and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to determine
that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person"
within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine
courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical.
But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the
United States, that Indians have been taken from different parts of the country and placed on these
reservation, without any previous consultation as to their own wishes, and that, when once so located,
they have been made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn form the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of the government and that
when once so decided upon, the courts should not interfere to upset a carefully planned governmental
system. Perhaps, just as may forceful reasons exists for the segregation as existed for the
segregation of the different Indian tribes in the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not delegate this
power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has
abdicated its authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be
zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee
violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of case, namely: "The true distinction therefore is between the delegation
of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring
an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R.
Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall
in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive
department or official. The Legislature may make decisions of executive departments of subordinate
official thereof, to whom t has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence
to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section
21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial
governor, with the approval of the provincial board and the Department Head, discretionary authority
as to the execution of the law? Is not this "necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the
Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the
relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians.
Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs
shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the
President may prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the
long established practice of the Department, before saying that this language was not broad enough
to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The
power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such
supervision was necessary, and has been exercised. In the absence of special provisions naturally it
would be exercised by the Indian Department." (See also as corroborative authority, it any is needed,
Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United
States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An exception to the
general rule. sanctioned by immemorial practice, permits the central legislative body to delegate
legislative powers to local authorities. The Philippine Legislature has here conferred authority upon
the Province of Mindoro, to be exercised by the provincial governor and the provincial board.

Who but the provincial governor and the provincial board, as the official representatives of the
province, are better qualified to judge "when such as course is deemed necessary in the interest of
law and order?" As officials charged with the administration of the province and the protection of its
inhabitants, who but they are better fitted to select sites which have the conditions most favorable for
improving the people who have the misfortune of being in a backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by
the Philippine Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown
clients, says that — "The statute is perfectly clear and unambiguous. In limpid English, and in words
as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians'
and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature
to discriminate between individuals because of their religious beliefs, and is, consequently,
unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the Legislature must be
understood to mean what it has plainly expressed; judicial construction is then excluded; religious
equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q.
E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning
given to a common expression, especially as classification of inhabitants according to religious belief
leads the court to what it should avoid, the nullification of legislative action. We hold that the term
"non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that
section 2145 of the Administrative Code of 1917, does not discriminate between individuals an
account of religious differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of to
the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in
said Islands which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws." This constitutional limitation is derived
from the Fourteenth Amendment to the United States Constitution — and these provisions, it has
been said "are universal in their application, to all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356.) The protection afforded the individual is then as much for the non-Christian as for the Christian.

The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness that
trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a
refined idea, the offspring of high civilization, which the savage never understood, and never
can understand. Liberty exists in proportion to wholesome restraint; the more restraint on
others to keep off from us, the more liberty we have . . . that man is free who is protected from
injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced to do
what one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's
own will. It is only freedom from restraint under conditions essential to the equal enjoyment of
the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other basis, organized society
could not exist with safety to its members. Society based on the rule that each one is a law
unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not
exist under the operation of a principle which recognizes the right of each individual person to
use his own, whether in respect of his person or his property, regardless of the injury that may
be done to others . . . There is, of course, a sphere with which the individual may asserts the
supremacy of his own will, and rightfully dispute the authority of any human government —
especially of any free government existing under a written Constitution — to interfere with the
exercise of that will. But it is equally true that in very well-ordered society charged with the
duty of conserving the safety of its members, the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers, be subjected to such restraint to be
enforced by reasonable regulations, as the safety of the general public may demand."
(Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and
honorable conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty
guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with
which he has been endowed by this Creator, subject only to such restraints as are necessary for the
common welfare. As enunciated in a long array of authorities including epoch-making decisions of the
United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in
all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any
avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and
essential to his carrying out these purposes to a successful conclusion. The chief elements of the
guaranty are the right to contract, the right to choose one's employment, the right to labor, and the
right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are ordinarily
done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277;
Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6
R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this:
"Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the
term is restraint by law for the good of the individual and for the greater good of the peace and order
of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by
general law for the common good. Whenever and wherever the natural rights of citizen would, if
exercises without restraint, deprive other citizens of rights which are also and equally natural, such
assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the
interest of the public health, or of the public order and safety, or otherwise within the proper scope of
the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing
Co. vs. Cruz [1914], 189 Al., 66.)

None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in
the course of the argument in the Dartmouth College Case before the United States Supreme Court,
since a classic in forensic literature, said that the meaning of "due process of law" is, that "every
citizen shall hold his life, liberty, property, an immunities under the protection of the general rules
which govern society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a
rule which is especially true where much must be left to the discretion of the administrative officers in
applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due
process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in
furtherance of the public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process
of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general
powers of the legislative department of the Government; second, that this law shall be reasonable in
its operation; third, that it shall be enforced according to the regular methods of procedure prescribed;
and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class."
(U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1)
"What is due process of law depends on circumstances. It varies with the subject-matter and
necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute
which is applicable to all of a class. The classification must have a reasonable basis and cannot be
purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United
States Constitution particularly as found in those portions of Philippine Organic Law providing "That
slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for
crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth
Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force
in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary
modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the
punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage,
all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906],
203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have been disguised.
(Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their freedom.
Next must come a description of the police power under which the State must act if section 2145 is to
be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is
the farreaching scope of the power, that it has become almost possible to limit its weep, and that
among its purposes is the power to prescribe regulations to promote the health, peace, morals,
education, and good order of the people, and to legislate so as to increase the industries of the State,
develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S.,
27.) What we are not interested in is the right of the government to restrain liberty by the exercise of
the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with self-protection,
and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the
current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion,
provided the purposes of the law do not go beyond the great principles that mean security for the
public welfare or do not arbitrarily interfere with the right of the individual.

The Government of the Philippine Islands has both on reason and authority the right to exercise the
sovereign police power in the promotion of the general welfare and the public interest. "There can be
not doubt that the exercise of the police power of the Philippine Government belongs to the
Legislature and that this power is limited only by the Acts of Congress and those fundamental
principles which lie at the foundation of all republican forms of government." (Churchill and
Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before finally deciding
whether any constitutional provision has indeed been violated by section 2145 of the Administrative
Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If
legally possible, such legislative intention should be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao
reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of
former attempts for the advancement of the non-Christian people of the province; and (2) the only
successfully method for educating the Manguianes was to oblige them to live in a permanent
settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the
protection of the public forests in which they roam; (5) the necessity of introducing civilized customs
among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its
selection, the following:

To inform himself of the conditions of those Manguianes who were taken together to Tigbao,
the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found
that the site selected is a good one; that creditable progress has been made in the clearing of
forests, construction of buildings, etc., that there appears to be encouraging reaction by the
boys to the work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat trying period for
children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since the
beginning of the institution definitely justify its continuance and development.

Of course, there were many who were protesting against that segregation. Such was naturally
to be expected. But the Secretary of the Interior, upon his return to Manila, made the following
statement to the press:

"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
policy to organize them into political communities and to educate their children with
the object of making them useful citizens of this country. To permit them to live a
wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."

The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian
people, has adopted as the polaris of his administration — "the advancement of the non-Christian
elements of our population to equality and unification with the highly civilized Christian inhabitants."
This is carried on by the adoption of the following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are
induced to leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout the
regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians, to
promote social and commercial intercourse and maintain amicable relations among them and
with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

( f ) The encouragement of immigration into, and of the investment of private capital in, the
fertile regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the non-
Christian people. These people are being taught and guided to improve their living conditions
in order that they may fully appreciate the benefits of civilization. Those of them who are still
given to nomadic habits are being persuaded to abandon their wild habitat and settle in
organized settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent communities, thus bringing
them under the control of the Government, to aid them to live and work, protect them from
involuntary servitude and abuse, educate their children, and show them the advantages of
leading a civilized life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic, social, and political
equality, and unification with the more highly civilized inhabitants of the country. (See Report
of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the so-called
non-Christians, and to promote their educational, agricultural, industrial, and economic development
and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing
the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian
people in the following unequivocal terms:

It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster
by all adequate means and in a systematical, rapid, and complete manner the moral, material,
economic, social, and political development of those regions, always having in view the aim of
rendering permanent the mutual intelligence between, and complete fusion of, all the
Christian and non-Christian elements populating the provinces of the Archipelago. (Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States, proper wards of the
Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in
the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan,
carefully formulated, and apparently working out for the ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is evident.
Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making
depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing
nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing
than into a reservation was to gather together the children for educational purposes, and to improve
the health and morals — was in fine, to begin the process of civilization. this method was termed in
Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been
followed with reference to the Manguianes and other peoples of the same class, because it required,
if they are to be improved, that they be gathered together. On these few reservations there live under
restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people.
Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that the
axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free,
and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with
many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as
surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon
the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature
in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro
must have their crops and persons protected from predatory men, or they will leave the country. It is
no argument to say that such crimes are punished by the Penal Code, because these penalties are
imposed after commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the
Government must be in a position to guarantee peace and order.

Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy
and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must
prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñgins thereon. Not bringing any benefit to the State but instead injuring
and damaging its interests, what will ultimately become of these people with the sort of liberty
they wish to preserve and for which they are now fighting in court? They will ultimately
become a heavy burden to the State and on account of their ignorance they will commit
crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they will
— going from one place to another in the mountains, burning and destroying forests and
making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they allege
that they are being deprived thereof without due process of law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without
due process of law' apply to a class of persons who do not have a correct idea of what liberty
is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people should be let along in the mountains and in a
permanent state of savagery without even the remotest hope of coming to understand liberty
in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government is indeed encouraging and
the signs of the times point to a day which is not far distant when they will become useful
citizens. In the light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work simply because a
certain element, believing that their personal interests would be injured by such a measure
has come forward and challenged the authority of the Government to lead this people in the
pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem
this people from the claws of ignorance and superstition, now willingly retire because there
has been erroneously invoked in their favor that Constitutional guaranty that no person shall
be deprived of his liberty without due process of law? To allow them to successfully invoke
that Constitutional guaranty at this time will leave the Government without recourse to pursue
the works of civilizing them and making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to attack by those who doubt,
nay challenge, the ability of the nation to deal with our backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are
being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed and
permanent communities. They are being aided to live and work. Their children are being
educated in a school especially established for them. In short, everything is being done from
them in order that their advancement in civilization and material prosperity may be assured.
Certainly their living together in Tigbao does not make them slaves or put them in a condition
compelled to do services for another. They do not work for anybody but for themselves. There
is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places
under penalty of imprisonment. Attention in this connection is invited to the fact that this
people, living a nomadic and wayfaring life, do not have permanent individual property. They
move from one place to another as the conditions of living warrants, and the entire space
where they are roving about is the property of the nation, the greater part being lands of
public domain. Wandering from one place to another on the public lands, why can not the
government adopt a measure to concentrate them in a certain fixed place on the public lands,
instead of permitting them to roam all over the entire territory? This measure is necessary
both in the interest of the public as owner of the lands about which they are roving and for the
proper accomplishment of the purposes and objectives of the government. For as people
accustomed to nomadic habit, they will always long to return to the mountains and follow a
wayfaring life, and unless a penalty is provinced for, you can not make them live together and
the noble intention of the Government of organizing them politically will come to naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a
general conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases.
Could be not, however, be kept away from certain localities ? To furnish an example from the Indian
legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those
citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for
the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted
and followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people
confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of
any oppressed Manguian? The answer would naturally be that the official into whose hands are given
the enforcement of the law would have little or not motive to oppress these people; on the contrary,
the presumption would all be that they would endeavor to carry out the purposes of the law
intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists
the power of removal in the hands of superior officers, and the courts are always open for a redress of
grievances. When, however, only the validity of the law is generally challenged and no particular case
of oppression is called to the attention of the courts, it would seems that the Judiciary should not
unnecessarily hamper the Government in the accomplishment of its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the right and
liberties of the individual members of society be subordinated to the will of the Government? It is a
question which has assailed the very existence of government from the beginning of time. Now purely
an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the
peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very
existence of government renders imperatives a power to restrain the individual to some extent,
dependent, of course, on the necessities of the class attempted to be benefited. As to the particular
degree to which the Legislature and the Executive can go in interfering with the rights of the citizen,
this is, and for a along time to come will be, impossible for the courts to determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics
and political theory, are of the past. The modern period has shown as widespread belief in the
amplest possible demonstration of governmental activity. The courts unfortunately have sometimes
seemed to trial after the other two branches of the government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the
Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a
great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of
civilization of the Manguianes is considered. They are restrained for their own good and the general
good of the Philippines. Nor can one say that due process of law has not been followed. To go back
to our definition of due process of law and equal protection of the law, there exists a law ; the law
seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and
it applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would lead to
the determination that section 2145 is valid. it the attitude which the courts should assume towards
the settled policy of the Government. In a late decision with which we are in full accord,
Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the
Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really new
question that comes before the courts is, in the last analysis, determined on that theory, when not
determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies
furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales
which the court believes will best promote the public welfare in its probable operation as a general
rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its
influence in all possible contingencies. Distinctions must be made from time to time as sound reason
and a true sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians
has been in vain, if we fail to realize that a consistent governmental policy has been effective in the
Philippines from early days to the present. The idea to unify the people of the Philippines so that they
may approach the highest conception of nationality. If all are to be equal before the law, all must be
approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro
must be populated, and its fertile regions must be developed. The public policy of the Government of
the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The
Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said,
for their own good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a
coordinate branch, be exercised. The whole tendency of the best considered case is toward non-
interference on the part of the courts whenever political ideas are the moving consideration. Justice
Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other
mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final
decision of the many grave questions which this case presents, the courts must take "a chance," it
should be with a view to upholding the law, with a view to the effectuation of the general governmental
policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that
broad conception which will make the courts as progressive and effective a force as are the other
departments of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code does not
deprive a person of his liberty without due process of law and does not deny to him the equal
protection of the laws, and that confinement in reservations in accordance with said section does not
constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian
policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore,
not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered.

Arellano, C.J., Torres and Avanceña, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing,
opinion.

The words "non-Christian' have a clear, definite and well settled signification when used in the
Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants,"
dwelling in more or less remote districts and provinces throughout the Islands.

Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-
book, denote the 'low grace of civilization" of the individuals included in the class to which they are
applied. To this I would add that the tests for the determination of the fact that an individual or tribes
is, or is not of the "non-Christian" are, and throughout the period of American occupation always have
been, "the mode of life, the degree of advancement in civilization, and connection or lack of
connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated
September 17, 1910, and set out in the principal opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses that the standard
of civilization to which a specific tribe must be found to have advanced, to justify its removal from the
class embraces with the descriptive term "non-Christian," as that term is used in the Philippine
statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it is
feasible and practicable to extend to, and enforce upon its membership the general laws and
regulations, administrative, legislative, and judicial, which control the conduct of the admitted civilized
inhabitants of the Islands; a made of life, furthermore, which does not find expression in tribal customs
or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or
practices, or to expose to loss or peril the lives or property of those who may be brought in contact
with members of the tribe.
So the standard of civilization to which any given number or group of inhabitants of particular province
in these Islands, or any individual member of such a group, must be found to have advanced, in order
to remove such group or individual from the class embraced within the statutory description of "non-
Christian," is that degree of civilization which would naturally and normally result in the withdrawal by
such persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at any time
adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside
within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life independent
of a apart from that maintain by such tribe, but a mode of life as would not be inimical to the lives or
property or general welfare of the civilized inhabitants of the Islands with whom they are brought in
contact.

The contention that, in this particular case, and without challenging the validity of the statute, the writ
should issue because of the failure to give these petitioners, as well as the rest of the fifteen thousand
Manguianes affected by the reconcentration order, an opportunity to be heard before any attempt was
made to enforce it, begs the question and is, of course, tantamount to a contention that there is no
authority in law for the issuance of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained that degree of
civilization which would have made it practicable to serve notice upon, and give an opportunity for a
real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the
provincial board and the Secretary of the Interior would have been justified in its enforcement By what
proceeding known to the law, or to be specially adopted in a particular case, could the offices of any
province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a head-
hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is in
the mountain fastnesses of Mindanao, and whose individual members have no fixed or known place
of residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in
the United States when tribes or groups of American Indians have been placed upon reservations; but
since non-Christian head men and chiefs in the Philippines have no lawful authority to bind their acts
or their consent, the objection based on lack of a hearing, would have the same force whether the
issuance of a reconcentration order was or was not preceded by a pow-wow of this kind.

The truth of the mater is that the power to provide for the issuance of such orders rests upon
analogous principles to those upon which the liberty and freedom or action of children and persons of
unsound minds is restrained, without consulting their wishes, but for their own good and the general
welfare. The power rests upon necessity, that "great master of all things," and is properly exercised
only where certain individuals or groups of individual are found to be of such a low grade of civilization
that their own wishes cannot be permitted to determine their mode of life or place of residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal
attitude assume toward them by the Insular Government is well illustrated by the following provisions
found in the Administrative Code of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It shall be the
duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty in
favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate means
and in a systematic, rapid, and completely manner the moral, material, economic, social and
political development of those regions, always having in view the aim of rendering permanent
the mutual intelligence between and complete fusion of all the Christian and non-Christian
elements populating the provinces of the Archipelago.

SEC. 2116. Township and settlement fund. — There shall be maintained in the provincial
treasuries of the respective specially organized provinces a special fund to be known as the
township and settlement fund, which shall be available, exclusively, for expenditures for the
benefit of the townships and settlements of the province, and non-Christian inhabitants of the
province, upon approval of the Secretary of the Interior.
As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts
of these Islands in habeas corpus proceedings, to review the action of the administrative authorities in
the enforcement of reconcentration orders issued, under authority of section 2145 of the
Administrative Code, against a petitioner challenging the alleged fact that he is a "non-Christian" as
that term is used in the statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I
cannot give my consent to any act which deprives the humblest citizen of his just liberty without a
hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled
to a hearing, at least, before they are deprived of their liberty.

MOIR, J., dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to let
this decision go on record without expressing may strong dissent from the opinion of Justice Malcolm,
concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go into the
question in detail. I shall simply state, as briefly as may be, the legal and human side of the case as it
presents itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered
by the Provincial governor of Mindoro to remove their residence from their native habitat and to
establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or be
punished by imprisonment if they escaped. This reservation, as appears from the resolution of the
provincial board, extends over an area of 800 hectares of land, which is approximately 2,000 acres,
on which about three hundred manguianes are confined. One of the Manguianes, Dabalos, escaped
from the reservation and was taken in hand by the provincial sheriff and placed in prision at Calapan,
solely because he escaped from the reservation. The Manguianes used out a writ of habeas corpus in
this court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion
which states that the provincial governor of Mindoro with the prior approval of his act by the
Department Secretary ordered the placing of the petitioners and others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have
considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are
peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The
manguianes have shown no desire for community life, and, as indicated in the preamble to Act No.
547, have no progressed sufficiently in civilization to make it practicable to bring them under any for of
municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including
smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles and
a populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This appears to
be the total Mangyan population of the province. The total population was less than seven to the mile
(Vol. 2, P.I. Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.


It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by
Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes
[Magellan] anchored his boats in the water of Cebu. They have made little or no progress in the ways
of civilization. "They are a peaceful, timid, primitive, seminomadic people," whom the Government of
the Philippines Islands would bring under the beneficient influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do
not take kindly to the ways provided for civilizing them section 2759 provides the punishment.

The attorney for the petitioners has raised various constitutional questions, but only the fundamental
one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759,
quoted in the majority opinion, are in violation of the first paragraph of section 3 of the Act of
Congress of August 29, 1916, which reads as follows:

That no law shall be enacted in said Islands which shall deprive any person of life, liberty or
property without due process of law, or deny to any person therein the equal protection of the
laws.

It is not necessary to argue that a Mangyan is one of the persons protected by that provision.

The Attorney-General argues that the treatment provided for the Manguianes is similar to that
accorded the Indians in the United States, and reference is made all through the court's decision to
the decisions of the United States Supreme Court with reference to the Indians. It is not considered
necessary to go into these cases for the simple reason that all the Indians nations in the United States
were considered as separate nations and all acts taken in regard to them were the result of separate
treaties made by the United States Government with the Indian nations, and, incompliance with
these treaties, reservations were set apart for them on which they lived and were protected form
intrusion and molestation by white men. Some these reservations were larger than the Islands of
Luzon, and they were not measured in hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government of the Philippine
Islands by which they have agreed to live within a certain district where they are accorded exclusive
rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are entitled to all the
rights and privileges of any other citizen of this country. And when the provincial governor of the
Province of Mindoro attempted to take them from their native habitat and to hold them on the little
reservation of about 800 hectares, he deprived them of their rights and their liberty without due
process of law, and they were denied the equal protection of the law.

The majority opinion says "they are restrained for their own good and the general good of the
Philippines."

They are to be made to accept the civilization of the more advanced Filipinos whether they want it or
not. They are backward and deficient in culture and must be moved from their homes, however
humble they may be and "bought under the bells" and made to stay on a reservation.

Are these petitioners charged with any crime? There is no mention in the return of the Solicitor-
General of the Philippine Islands of any crime having been committed by these "peacefully, timid,
primitive, semi-nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the
majority opinion, and from it I gather the nature of their offense which is that —

Living a nomadic and wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñgins thereon. No bringing any benefit to the State but, instead, injuring
and damaging its interests, what will ultimately become of those people with the sort of liberty
they wish to preserve and for which they are not fighting in court? They will ultimately become
a heavy burden to the State and, on account of their ignorance, they will commit crimes and
make depredations, or if not they will be subjected to involuntary servitude by those who may
want to abuse them.

There is no doubt in my mind that this people has not a right conception of liberty and does
not practice liberty in a rightful way. They understand liberty as the right to do anything they
will — going from one place to another in the mountains, burning and destroying forests and
making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they are being
deprived thereof without due process of law?

xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without
due process of law" apply to a class of persons who do not have a correct idea of what liberty
is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people be let alone in the mountains and in a permanent state
of savagery without even the remotest hope of coming to understand liberty in its true and
noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the Manguianes
destroy the forest by making a caiñgin. What is a "caiñgin?" Simply this. These people move their
camp or place of abode frequently and when they do move to a new place, it is necessary to clear the
land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees and
burn these around the larger ones, killing them, so that they can plant their crops. The fires never
spread in the tropical undergrowth of an island like Mindoro, but the trees within the caiñgin are killed
and crops are planted and harvested. This land may be abandoned later on — due to superstition, to
a lack of game in the neighborhood, to poor crops from exhausted fertility, or to a natural desire to
move on.

Granting that the Manguianes do make caiñgins or clear lands in spots and then abandon them for
the more fertile lands, which every man knows to be just over the hills, we cannot see that they are
committing such a great abuse as to justify incarcerating them on a small tract of land — for
incarceration it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state and on account
of their ignorance they will commit crimes and make depredations, or if not they will be subjected to
involuntary servitude by those who want to abuse them." They have never been a burden to the state
and never will be. They have not committed crimes and, when they do, let the law punish them." The
authorities are anticipating too much from these "peaceful, timid, primitive, semi-nomadic people."
Their history does not demonstrate that we must expect them to commit crimes and jail them to
prevent the possibility. But the Secretary says "they will be subjected to involuntary servitude by those
want to abuse them." Are they more liable to be subjected to involuntary servitude when left free to
roam their native hills and gain a livelihood as they have been accustomed to for hundreds of years,
than they will be if closely confined on a narrow reservation from which they may not escape without
facing a term in jail? Is not more likely that they will be glad to exchange their "freedom" on a small
reservation for the great boon of binding themselves and their children to the more fortunate Christian
Filipinos who will feed them and clothe them in return of their services.?

It think it not only probable but almost a certainty that they will be all be subjected to involuntary
personal servitude if their freedom is limited as it has been. How will they live? There may be persons
who are willing to lend them money with which to buy food on the promise that they will work for them.
And if they accept the loan and do not work for the lender we have another law on the statute books,
Act No. 2098, into whose noose they run their necks, and they may be fined not more than two
hundred pesos or imprisonment for not exceeding six months or both, and when the sentence expires
they must again go into debt or starve, and if they do not work will again go to jail, and this maybe
repeated till they are too old to work and are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not appear they
were ever consulted about their reconcentration. It does not appear that they had any hearing or were
allowed to make any defense. It seems they were gathered here and there whenever found by the
authorities of the law and forcibly placed upon the reservation, because they are "non-Christian," and
because the provincial governor ordered it. Let it be clear there is no discrimination because
of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any
of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes are Moros,
Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together.
Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The
have beautiful fields reclaimed by hard labor — they have herds of cattle and horses and some few of
them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low in
the scale of civilization, but they are one and all "non-Christians," as the term is used and understood
in law and in fact.

All of them, according to the court's opinion under the present law, may be taken from their homes
and herded on a reservation at the instance of the provincial governor, with the prior approval of the
department head. To state such a monstrous proposition is to show the wickedness and illegality of
the section of the law under which these people are restrained of their liberty. But it is argued that
there is no probability of the department head ever giving his approval to such a crime, but the fact
that he can do it and has done it in the present case in what makes the law unconstitutional. The
arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested
and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary
body of individuals; that the constitutional principles upon which our government and its
institutions rest do not leave room for the play and action of purely personal and arbitrary
power, but that all in authority are guided and limited by these provisions which the people
have, the through the organic law, declared shall be the measure and scope of all control
exercised over them. In particular the fourteenth amendment, and especially the equal
protection clause, thereof, forbids that the individual shall be subjected to any arbitrary
exercise of the powers of government; it was intended to prohibit, and does prohibit, any
arbitrary deprivation of life or liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or


which singles out any particular individuals or class as the subject of hostile and
discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth
amendment and especially to the equal protection clause thereof. This is a plain case, and
requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)

When we consider the nature and the theory of our institutions of government, the principles
upon which they are supposed to rest, and review the history of their development, we are
constrained to conclude that they do not mean to leave room for the play and action of purely
personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the
author and source of law; but in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts. And the law is the definition and limitation of power. It is,
indeed, quite true, that there must always be lodged somewhere, and in some person or
body, the authority of final decision; and, in many cases of mere administration the
responsibility is purely political, no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty, and the pursuit of happiness, considered as individual
possessions, are secured by those maxims of constitutional law which are the monuments
showing the victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill
of Rights, the Government of Commonwealth "may be a government of law and not of men."
For the very idea that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of slavery itself. (Yick
Wo vs. Hopkins, 118 U.S., 374.)

It is said that the present law is an old Act being substance Act No. 547 of the Philippine Commission.
But it has never been brought before this court for determination of its constitutionality. No matter how
beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive any man of life,
liberty, or property without due process law, it is void.

In may opinion the acts complained of which were taken in conformity with section 2145 of the
Administrative Code not only deprive these Manguianes of their liberty, without due process of law,
but will in all probability deprive them of their life, without due process of law. History teaches that to
take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of
a reservation is to invite disease an suffering and death. From my long experience in the Islands, I
should say that it would be a crime of title less magnitude to take the Ifugaos from their mountain
homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to
transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon from
their fields — than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the
same category as the Manguianes. If the Manguianes may be so taken from their native habitat and
reconcentrated on a reservation — in effect an open air jail — then so may the Ifugaos, so may the
Tinguianes, who have made more progress than the Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine
governors upon the prior approval of the head of the department, have the power under this law to
take the non-Christian inhabitants of their different provinces form their homes and put them on a
reservation for "their own good and the general good of the Philippines," and the court will grant them
no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their lives,
may be, subject to the unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that some political
enemy was a non-Christian, and that he would be safer on the reservation. No matter what his
education and culture, he could have no trial, he could make no defense, the judge of the court might
be in a distant province and not within reach, and the provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should
be quoted at length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the laws of my
country, I have never been called upon to hear or decide a case that appealed so strongly to
my sympathy as the one now under consideration. On the one side, we have a few of the
remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and
generally despised race; and the other, we have the representative of one of the most
powerful, most enlightened, and most christianized nations of modern times. On the one side,
we have the representatives of this wasted race coming into this national tribunal of ours,
asking for justice and liberty to enable them to adopt our boasted civilization, and to pursue
the arts of peace, which have made us great and happy as a nation; on the other side, we
have this magnificent, if not magnanimous, government, resisting this application with the
determination of sending these people back to the country which is to them less desirable
perpetual imprisonment in their own native land. But I think it is creditable to the heart and
mind of the brave and distinguished officer who is made respondent herein to say that he has
no sort of sympathy in the business in which he is forced by his position to bear a part so
conspicuous; and, so far as I am individually concerned, I think it not improper to say that, if
the strongest possible sympathy could give the relators title to freedom, they would have been
restored to liberty the moment the arguments in their behalf were closed. no examination or
further thought would then have been necessary or expedient. But in a country where liberty
is regulated by law, something more satisfactory and enduring than mere sympathy must
furnish and constitute the rule and basis of judicial action. It follows that this case must be
examined and decided on principles of law, and that unless the relators are entitled to their
discharge under the constitution or laws of the United States, or some treaty, they must be
remanded to the custody of the officer who caused their arrest, to be returned to the Indian
Territory which they left without the consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the
session of the court held at that time of Lincoln, presented their petition, duly verified, praying
for the allowance of a writ of habeas corpus and their final discharged from custody
thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly belonged to
the Ponca tribe of Indians now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations therewith,
and had adopted the general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the general
government; that whilst they were thus engaged, and without being guilty of violating any of
the laws of the United States, they were arrested and restrained of their liberty by order of the
respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April, and, the distance
between the place where the writ was made returnable and the place where the relators were
confined being more than twenty miles, ten days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention is
therein shown. The substance of the return to the writ, and the additional statement since
filed, is that the relators are individual members of, and connected with, the Ponca Tribe of
Indians; that they had fled or escaped from a reservation situated in some place within the
limits of the indian Territory — had departed therefrom without permission from the
government; and, at the request of the secretary of the interior, the general of the army had
issued an order which required the respondent to arrest and return the relators to their tribe in
the Indian Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian reservation, and that they were in his custody for the purpose
of being returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators had withdrawn
and severed, for all time, their connection with the tribe to which they belonged; and upon this
point alone was there any testimony produced by either party hereto. The other matter stated
in the petition and the return to the writ are conceded to be true; so that the questions to be
determined are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of
Indians, by which a certain tract of country, north of the Niobrara river and west of the
Missouri, was set apart for the permanent home of the aid Indians, in which the government
agreed to protect them during their good behaviour. But just when or how, or why, or under
what circumstances, the Indians left their reservation in Dakota and went to the Indian
Territory does not appear.

xxx xxx xxx

A question of much greater importance remains for consideration, which, when determined,
will be decisive of this whole controversy. This relates to the right of the government to arrest
and hold the relators for a time, for the purpose of being returned to a point in the Indian
Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can
do full justice to a question like the one under consideration. But, as the mater furnishes so
much valuable material for discussion, and so much food for reflection, I shall try to present it
as viewed from my own standpoint, without reference to consequences or criticisms, which,
though not specially invited, will be sure to follow.

xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and
in it we find a provision authorizing the secretary of the interior to use $25,000 for the removal
of the Poncas to the Indian Territory, and providing them a home therein, with consent of the
tribe. (19 Sta., 192.)

xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the
same, until two or three years ago, when they removed therefrom, but whether by force or
otherwise does not appear. At all event, we find a portion of them, including the relators,
located at some point in the Indian Territory. There, the testimony seems to show, is where
the trouble commenced. Standing Bear, the principal witness, states that out of five hundred
and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one
hundred and fifty-eight died within a year or so, and a great proportion of the others were sick
and disabled, caused, in a great measure, no doubt, from change of climate; and to save
himself and the survivors of his wasted family, and the feeble remnant of his little band of
followers, he determined to leave the Indian Territory and return to his old home, where, to
use his own language, "he might live and die in peace, and be buried with his fathers." He
also stated that he informed the agent of their final purpose to leave, never to return, and that
he and his followers had finally, fully, and forever severed his and their connection with the
Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to cut
loose from the government, go to work, become self-sustaining, and adopt the habits and
customs of a higher civilization. To accomplish what would seem to be a desirable and
laudable purpose, all who were able to do so went to work to earn a living. The Omaha
Indians, who speak the same language, and with whom many of the Poncas have long
continued to intermarry, gave them employment and ground to cultivate, so as to make them
self-sustaining. And it was when at the Omaha reservation, and when thus employed, that
they were arrested by order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or
necessity, of removing them by force from their own native plains and blood relations to a far-
off country, in which they can see little but new-made graves opening for their reception. The
land from which they fled in fear has no attractions for them. The love of home and native
land was strong enough in the minds of these people to induce them to brave every peril to
return and live and die where they had been reared. The bones of the dead son of Standing
Bear were not to repose in the land they hoped to be leaving forever, but were carefully
preserved and protected and formed a part of what was to them melancholy procession
homeward. Such instances of parental affections, and such love home and native land, may
be heathen in origin, but it seems to that they are not unlike Christian in principle.

And the court declared that the Indians were illegally held by authority of the United States and in
violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from
custody.
This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are
unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that
they have been denied the equal protection of the law, and order the respondents immediately to
liberate all of the petitioners.

Footnotes

1 218 U.S., 302; 54 L. ed., 1049.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.


ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.


Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria
Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo
Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized
Christensen, is not in any way related to me, nor has she been at any time adopted by me,
and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum
of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to
be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the
Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest which may
have accrued thereon, is exhausted..

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever
kind or character, and wheresoever situated, of which I may be possessed at my death and
which may have come to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project
of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the
residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as
it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by
Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen.
The legal grounds of opposition are (a) that the distribution should be governed by the laws of the
Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen
Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of California alone, but the entire law thereof
because several foreign elements are involved, that the forum is the Philippines and even if the case
were decided in California, Section 946 of the California Civil Code, which requires that the domicile of
the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen
having been declared an acknowledged natural child of the decedent, she is deemed for all purposes
legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a testator
has the right to dispose of his property in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.

V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death. But there is also no question that at the time of his death he was
domiciled in the Philippines, as witness the following facts admitted by the executor himself in
appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country,
and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of facts. 1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United States
but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI
Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-
Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by
the fact that he was born in New York, migrated to California and resided there for nine years, and
since he came to the Philippines in 1913 he returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never to have owned or acquired a home or
properties in that state, which would indicate that he would ultimately abandon the Philippines and
make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for
the latter was a territory of the United States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will in 1951 he
declared that he was a citizen of that State; so that he appears never to have intended to abandon his
California citizenship by acquiring another. This conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus
one may be domiciled in a place where he has never been. And he may reside in a place
where he has no domicile. The man with two homes, between which he divides his time,
certainly resides in each one, while living in it. But if he went on business which would require
his presence for several weeks or months, he might properly be said to have sufficient
connection with the place to be called a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in hand, not giving up his former
"home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires
the exercise of intention as well as physical presence. "Residence simply requires bodily
presence of an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile." Residence, however, is a term used
with many shades of meaning, from the merest temporary presence to the most permanent
abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country where
it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the United States,
each state of the Union having its own private law applicable to its citizens only and in force only
within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not,
therefore, possibly mean or apply to any general American law. So it can refer to no other than the
private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The
decision of the court below, sustains the contention of the executor-appellee that under the California
Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is deemed
to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case
cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of the State of California,
the internal law thereof, which is that given in the abovecited case, should govern the determination of
the validity of the testamentary provisions of Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946
should be applicable, and in accordance therewith and following the doctrine of the renvoi, the
question of the validity of the testamentary provision in question should be referred back to the law of
the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers
a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of
the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult
to see why the reference back should not have been to Michigan Conflict of Laws. This would
have resulted in the "endless chain of references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked merely to the internal law of Illinois,
thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason
why the original reference should be the internal law rather than to the Conflict of Laws rule. It
is true that such a solution avoids going on a merry-go-round, but those who have accepted
the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at
that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent
for they look always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two
states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to which
would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in


Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of
laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the national
law of the deceased, thus applying the Massachusetts statute of distributions. So on the
surface of things the Massachusetts court has open to it alternative course of action: (a) either
to apply the French law is to intestate succession, or (b) to resolve itself into a French court
and apply the Massachusetts statute of distributions, on the assumption that this is what a
French court would do. If it accepts the so-called renvoi doctrine, it will follow the latter
course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it has
been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws,
and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel,
in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one
of them is necessarily competent, which agree in attributing the determination of a
question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would distribute personal property upon death in
accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is the English law — he must
accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in
In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of
its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting
to the law of the domicile in the determination of matters with foreign element involved is in accord
with the general principle of American law that the domiciliary law should govern in most matters or
rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed two
sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our
Civil Code, then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-
laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of
the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that
the national law of the deceased should govern. This contention can not be sustained. As explained in
the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law
on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or
return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the
law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not
refer the case back to California; such action would leave the issue incapable of determination
because the case will then be like a football, tossed back and forth between the two states, between
the country of which the decedent was a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the
question has to be decided, especially as the application of the internal law of California provides no
legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines,
makes natural children legally acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano
vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of
a state in the United States but with domicile in the Philippines, and it does not appear in each case
that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946
of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower
court with instructions that the partition be made as the Philippine law on succession provides.
Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,
concur.
Bengzon, C.J., took no part.
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,
DECEASED. ADOLFO C. AZNAR, EXECUTOR AND LUCY CHRISTENSEN, HEIR OF THE
DECEASED, EXECUTOR AND HEIR-APPELLEES, vs. HELEN CHRISTENSEN GARCIA,
oppositor-appellant. No. L-16749. January 31, 1963.

FACTS:

Edward E Christensen was born in New York but he migrated to California where he resided for 9
years. In 1913, he came to the Philippines where he became a domiciliary until the time of his death.
In his will, he instituted an acknowledged natural daughter, Maria Lucy Christensen as his only heir,
but left a legacy sum of money in favor of Helen Christensen Garcia. Counsel for the acknowledged
natural daughter Helen claims that under Article 16, par. 2 of the Civil Code, California law should be
should be applied; that under California law, the matter is referred back to the law of the domicile. On
the other hand, the counsel for Maria Lucy contends that the national law of the deceased must apply,
illegitimate children not being entitled to anything under California law.

ISSUE:

Whether or not the national law of the deceased should be applied in determining the successional
rights oh his heirs.

HELD:

The Supreme Court grants more successional rights to Helen. It said in effect that there are two rules
in California on the matter: the internal law which applies to California’s domiciled in California, and
the conflict rule for Californian’s domiciled out of California. Christensen, being domiciled in the
Philippines, the law of his domicile must be followed. For the determination of the successional rights
under Philippine Law, the case was remanded to the lower court for further proceedings.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO
EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO &
JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS &
JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA
& JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO
& RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE
TANACAO, represented by his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO,
represented by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR,
represented by their parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR &
GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO ALFAR &
ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO
VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP,
represented by his parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her
parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES, represented by her parents, MR.
& MRS. FLORENCIO MONARES; MERCY MONTECILLO, represented by her parents MR. &
MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, represented by his parent ILUMINADA
TANGAHA; EVELYN, MARIA & FLORA TANGAHA, represented by their parents MR. & MRS.
ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his parents, MR. & MRS.
PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented
by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE
SARSOZO, represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH
& HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON &
MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO,
JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO, represented by
their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by
her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her
parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents
MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their
parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA, represented
by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX
MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her
parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by
her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON PALATULON, SALMERO
PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN,
respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

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

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and
Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and
Taburan Cebu province. All minors, they are assisted by their parents who belong to the
religious group known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and
Antonio A. Sangutan," the petitioners are 25 high school and grade school students enrolled
in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses. Both petitions
were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by Department
Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS)
making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265
provides:

Sec. 1. All educational institutions shall henceforth observe daily flag


ceremony, which shall be simple and dignified and shall include the playing or
singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue


or cause to be issued rules and regulations for the proper conduct of the flag
ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education,
after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment
which shall be published at least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by
this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private educational
institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:


RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL
EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public and
private, every school day throughout the year. It shall be raised at sunrise and
lowered at sunset. The flag-staff must be straight, slightly and gently tapering
at the end, and of such height as would give the Flag a commanding position in
front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising


ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are


in school and its premises shall assemble in formation facing
the flag. At command, books shall be put away or held in the left
hand and everybody shall come to attention. Those with hats
shall uncover. No one shall enter or leave the school grounds
during the ceremony.

b. The assembly shall sing the Philippine National


Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by
the school band alone. At the first note of the Anthem, the flag
shall be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart.
Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform
shall give the salute prescribed by their regulations. The salute
shall be started as the Flag rises, and completed upon last note
of the anthem.

c. Immediately following the singing of the Anthem, the


assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools and
of private schools which are intended for Filipino students or
whose population is predominantly Filipino.

English Version

I love the Philippines.


It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or
"religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or
anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard
ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the
State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's power and invades the sphere
of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses may
be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8, series
of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil.
2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of freedom
and liberty which it and the Constitution guarantee and protect. Under a system
of complete separation of church and state in the government, the flag is
utterly devoid of any religious significance. Saluting the flag does not involve
any religious ceremony. The flag salute is no more a religious ceremony than
the taking of an oath of office by a public official or by a candidate for
admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether Christian,
Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the
duty imposed upon it by the Constitution which charges it with supervision
over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all
schools aim to develop, among other things, civic conscience and teach the
duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in


the flag ceremony. They have no valid right to such exemption. Moreover,
exemption to the requirement will disrupt school discipline and demoralize the
rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru


Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony but
an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et
al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI,
Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of
September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling
in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above
provision of the new Administrative Code of 1987. They have targeted only Republic Act No.
1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who
refused to sing the Philippine national anthem, salute the Philippine flag and recite the
patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division
of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this
Court's decision in Gerona, issued Division Memorandum No. 108, dated November 17, 1989
(pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals
and Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to salute
the Philippine flag or participate in the daily flag ceremony because of some
religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations)
but also strikes at the heart of the DECS sustained effort to inculcate patriotism
and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is not in
any manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippine says:

The flag is not an image but a symbol of the Republic of the


Philippines, an emblem of national sovereignty, of national unity
and cohesion and freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may


advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said


belief, there is quite a stretch of road to travel. If the exercise of
said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give
way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106
Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate


in the daily flag ceremony or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be considered removed from the
service after due process.

6. In strong language about pupils and students who do the same the Supreme
Court has this to say:
If they choose not to obey the flag salute regulation, they merely
lost the benefits of public education being maintained at the
expense of their fellow Citizens, nothing more. According to a
popular expression, they could take it or leave it! Having elected
not to comply with the regulation about the flag salute they
forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those


who choose not to participate in flag ceremony or salute the Philippine flag.
(pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were
asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the national
anthem, place their right hand on their breast until the end of the song and recite the pledge of
allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the
Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from
which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to salute
the flag of the Republic of the Philippines during Flag Ceremony and other
occasions, as mandated by law specifically Republic Act No. 1265, this Office
hereby orders the dropping from the list in the School Register (BPS Form I) of
all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective
today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21,
1955 in accordance with Republic Act No. 1265 and Supreme Court Decision of
a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable
Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the
"dropping from the rolls" of students who "opted to follow their religious belief which is
against the Flag Salute Law" on the theory that "they forfeited their right to attend public
schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo


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

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

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan
National High School, Agujo Elementary School, Calape Barangay National High School,
Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary
School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and
Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting
Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to
appeal to the Secretary of Education Isidro Cariño but the latter did not answer their letter. (p.
21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because
Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools,
would not recall the expulsion orders of his predecessor. Instead, he verbally caused the
expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted without or
in excess of their jurisdiction and with grave abuse of discretion — (1) in ordering their
expulsion without prior notice and hearing, hence, in violation of their right to due process,
their right to free public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the


rolls of herein petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring the


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

iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their
respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining order
be issued enjoining the respondents from enforcing the expulsion of the petitioners and to re-
admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-admit the
petitioners to their respective classes until further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F.
Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p.
98, Rollo) defending the expulsion orders issued by the public respondents on the grounds
that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious


and anti-social school children and consequently disloyal and mutant Filipino
citizens.
2. There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies
are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates


respect and love of country, for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful


regulations in question do not warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and


jurisprudence.

6. State's power to regulate repressive and unlawful religious practices


justified, besides having scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).

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

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by
its in corporation in the Administrative Code of 1987, the present Court believes that the time
has come to re-examine it. The idea that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their
rights to free speech ** and the free exercise of religious profession and worship (Sec. 5,
Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7],
1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his Creator
(Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA
514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute as
long as the belief is confined within the realm of thought. The second is subject
to regulation where the belief is translated into external acts that affect the
public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony,
they do not engage in "external acts" or behavior that would offend their countrymen who
believe in expressing their love of country through the observance of the flag ceremony. They
quietly stand at attention during the flag ceremony to show their respect for the right of those
who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50
and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is
no warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of


religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to prevent."
Absent such a threat to public safety, the expulsion of the petitioners from the
schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic,
even tragic situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious
group which admittedly comprises a "small portion of the school population" will shake up our
part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and admiration for national heroes"
(Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a vocation of
profession and be taught the virtues of "patriotism, respect for human rights, appreciation for
national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2],
Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court had feared in Gerona.
Forcing a small religious group, through the iron hand of the law, to participate in a ceremony
that violates their religious beliefs, will hardly be conducive to love of country or respect for
dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are


voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal with
here, the price is not too great. But freedom to differ is not limited to things that
do not matter much. That would be a mere shadow of freedom. The test of its
substance is the right to differ as to things that touch the heart of the existing
order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, .
. . — assuming that such unity and loyalty can be attained through coercion —
is not a goal that is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are
enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive
free education, for it is the duty of the State to "protect and promote the right of all citizens to
quality education . . . and to make such education accessible to all (Sec. 1, Art. XIV).

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption
of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between
their employer and a union because it would violate the teaching of their church not to join any
labor group:
. . . It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct.
1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to
the observance of the flag ceremony out of respect for their religious beliefs, however
"bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the
flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the
warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard
must be afforded their right to the free exercise of their religion, "this should not be taken to
mean that school authorities are powerless to discipline them" if they should commit breaches
of the peace by actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their classmates and
teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see
how such conduct may possibly disturb the peace, or pose "a grave and present danger of a
serious evil to public safety, public morals, public health or any other legitimate public interest
that the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the
invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if
petitioners had lived through that dark period of our history, they would not quibble now about
saluting the Philippine flag. For when liberation came in 1944 and our own flag was proudly
hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride
and joy over the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to
refuse to salute the Philippine flag on account of their religious beliefs, we hope, nevertheless,
that another foreign invasion of our country will not be necessary in order for our countrymen
to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders
issued by the public respondents against the petitioners are hereby ANNULLED AND SET
ASIDE. The temporary restraining order which was issued by this Court is hereby made
permanent.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and
Campos, Jr., JJ., concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.


Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
affirmation of a vital postulate of freedom. I would only add my brief observations
concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that
promulgated it was apparently laboring under the conviction that the State had the right to
determine what was religious and what was not and to dictate to the individual what he could
and could not worship. In pronouncing that the flag was not a religious image but a symbol of
the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to
worship it. This was no different from saying that the cult that reveres Rizal as a divinity
should not and cannot do so because he is only a civic figure deserving honor but not
veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship
or whether to worship at all. This is a personal decision he alone can make. The individual may
worship a spirit or a person or a beast or a tree (or a flag), and the State cannot prevent him
from doing so. For that matter, neither can it compel him to do so. As long as his beliefs are
not externalized in acts that offend the public interest, he cannot be prohibited from harboring
them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex
cathedra that they are not violating the Bible by saluting the flag. This is to me an unwarranted
intrusion into their religious beliefs, which tell them the opposite. The State cannot interpret
the Bible for them; only they can read it as they see fit. Right or wrong, the meaning they
derive from it cannot be revised or reversed except perhaps by their own acknowledged
superiors. But certainly not the State. It has no competence in this matter. Religion is
forbidden territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of


religious freedom terminated disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their
own understanding of their religious obligations. Significantly, as the ponencia notes, their
intransigence does not disturb the peaceful atmosphere of the school or otherwise prejudice
the public order. Their refusal to salute the flag and recite the patriotic pledge does not disrupt
the flag ceremony. They neither mock nor disdain it. The petitioners simply stand at attention
and keep quiet "to show their respect for the right of those who choose to participate in the
solemn proceedings." It is for this innocuous conduct that, pursuant to the challenged law and
regulations, the teachers have been dismissed and the students excelled.

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights
that guarantees to the individual the liberty to utter what is in his mind also guarantees to him
the liberty not to utter what is not in his mind. The salute is a symbolic manner of
communication that conveys its message as clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be prohibited in the face of
valid religious objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This coercion of
conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or proscribing the
assertion of unorthodox or unpopular views as in this case. The conscientious objections of
the petitioners, no less than the impatience of those who disagree with them, are protected by
the Constitution. The State cannot make the individual speak when the soul within rebels.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that
school teachers and students who cannot salute the flag, sing the national anthem and recite
the pledge of loyalty to the country, on grounds of religious belief or conviction, may not on
this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be the


far-reaching consequences of our ruling in that, we may in effect be sanctioning
a privileged or elite class of teachers and students who will hereafter be exempt from
participating, even when they are in the school premises, in the flag ceremony in deference to
their religious scruples. What happens, for instance, if some citizens, based also on their
religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps
problems of this nature should not be anticipated. They will be resolved when and if they ever
arise. But with today's decision, we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its
citizens, especially the youth, love and country, respect for the flag and reverence for its
national heroes. It cannot also be disputed that the State has the right to adopt reasonable
means by which these laudable objectives can be effectively pursued and achieved. The flag
ceremony is one such device intended to inspire patriotism and evoke the finest sentiments of
love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For
a select few to be exempt from the flag ceremony and all that it represent seven if the
exemption is predicated on respect for religious scruples, could be divisive in its impact on
the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious
scruples or beliefs cannot actively participate in the flag ceremony conducted in the school
premises should be excluded beforehand from such ceremony. Instead of allowing the
religious objector to attend the flag ceremony and display therein his inability to salute the
flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should
remain in the classroom while honors to the flag are conducted and manifested in the
"quadrangle" or equivalent place within school premises; or if the flag ceremony must be held
in a hall, the religious objector must take his or her place at the rear of (or outside) the hall
while those who actively participate in the ceremony must take the front places. This
arrangement can, in my view, achieve an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to freedom of religion and a valid exercise of
the State's fundamental and legitimate authority to require homage and honor to the flag as
the symbol of the Nation.

# Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
affirmation of a vital postulate of freedom. I would only add my brief observations
concerning Gerona v. Secretary of Education.
In my humble view, Gerona was based on an erroneous assumption. The Court that
promulgated it was apparently laboring under the conviction that the State had the right to
determine what was religious and what was not and to dictate to the individual what he could
and could not worship. In pronouncing that the flag was not a religious image but a symbol of
the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to
worship it. This was no different from saying that the cult that reveres Rizal as a divinity
should not and cannot do so because he is only a civic figure deserving honor but not
veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship
or whether to worship at all. This is a personal decision he alone can make. The individual may
worship a spirit or a person or a beast or a tree (or a flag), and the State cannot prevent him
from doing so. For that matter, neither can it compel him to do so. As long as his beliefs are
not externalized in acts that offend the public interest, he cannot be prohibited from harboring
them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex
cathedra that they are not violating the Bible by saluting the flag. This is to me an unwarranted
intrusion into their religious beliefs, which tell them the opposite. The State cannot interpret
the Bible for them; only they can read it as they see fit. Right or wrong, the meaning they
derive from it cannot be revised or reversed except perhaps by their own acknowledged
superiors. But certainly not the State. It has no competence in this matter. Religion is
forbidden territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of


religious freedom terminated disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their
own understanding of their religious obligations. Significantly, as the ponencia notes, their
intransigence does not disturb the peaceful atmosphere of the school or otherwise prejudice
the public order. Their refusal to salute the flag and recite the patriotic pledge does not disrupt
the flag ceremony. They neither mock nor disdain it. The petitioners simply stand at attention
and keep quiet "to show their respect for the right of those who choose to participate in the
solemn proceedings." It is for this innocuous conduct that, pursuant to the challenged law and
regulations, the teachers have been dismissed and the students excelled.

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights
that guarantees to the individual the liberty to utter what is in his mind also guarantees to him
the liberty not to utter what is not in his mind. The salute is a symbolic manner of
communication that conveys its message as clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be prohibited in the face of
valid religious objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This coercion of
conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or proscribing the
assertion of unorthodox or unpopular views as in this case. The conscientious objections of
the petitioners, no less than the impatience of those who disagree with them, are protected by
the Constitution. The State cannot make the individual speak when the soul within rebels.
PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that
school teachers and students who cannot salute the flag, sing the national anthem and recite
the pledge of loyalty to the country, on grounds of religious belief or conviction, may not on
this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be the


far-reaching consequences of our ruling in that, we may in effect be sanctioning
a privileged or elite class of teachers and students who will hereafter be exempt from
participating, even when they are in the school premises, in the flag ceremony in deference to
their religious scruples. What happens, for instance, if some citizens, based also on their
religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps
problems of this nature should not be anticipated. They will be resolved when and if they ever
arise. But with today's decision, we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its
citizens, especially the youth, love and country, respect for the flag and reverence for its
national heroes. It cannot also be disputed that the State has the right to adopt reasonable
means by which these laudable objectives can be effectively pursued and achieved. The flag
ceremony is one such device intended to inspire patriotism and evoke the finest sentiments of
love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For
a select few to be exempt from the flag ceremony and all that it represent seven if the
exemption is predicated on respect for religious scruples, could be divisive in its impact on
the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious
scruples or beliefs cannot actively participate in the flag ceremony conducted in the school
premises should be excluded beforehand from such ceremony. Instead of allowing the
religious objector to attend the flag ceremony and display therein his inability to salute the
flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should
remain in the classroom while honors to the flag are conducted and manifested in the
"quadrangle" or equivalent place within school premises; or if the flag ceremony must be held
in a hall, the religious objector must take his or her place at the rear of (or outside) the hall
while those who actively participate in the ceremony must take the front places. This
arrangement can, in my view, achieve an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to freedom of religion and a valid exercise of
the State's fundamental and legitimate authority to require homage and honor to the flag as
the symbol of the Nation.
Ebralinag vs. Division Superintendent of School of Cebu

Ebralinag vs. Division Superintendent of School of Cebu


GR 95770, 29 December 1995; En Banc Resolution, Kapunan [J]

FACTS:
Two special civil actions for certiorari, Mandamus and Prohibition were filed and consolidated raising
the same issue whether school children who are members or a religious sect known as Jehovah’s
Witnesses may be expelled from school (both public and private), for refusing, on account of their
religious beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the
Philippine national anthem, saluting the Philippine flag and reciting the patriotic pledge.

All of the petitioners in both (consolidated) cases were expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic
pledge as required by Republic Act No. 1265 (An Act making flagceremony compulsory in all
educational institutions) of July 11, 1955 , and by Department Order No. 8 (Rules and Regulations for
Conducting the Flag Ceremony in All Educational Institutions)dated July 21, 1955 of the Department
of Education, Culture and Sports (DECS) making the flag ceremony compulsory in all educational
institutions.

Petitioners are Jehovah’s Witnesses believing that by doing these is religious worship/devotion akin to
idolatry against their teachings. They contend that to compel transcends constitutional limits and
invades protection against official control and religious freedom. The respondents relied on the
precedence of Gerona et al v. Secretary of Education where the Court upheld the explulsions. Gerona
doctrine provides that we are a system of separation of the church and state and the flag is devoid of
religious significance and it doesn’t involve any religious ceremony. The children of Jehovah’s
Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to
such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize
the rest of the school population which by far constitutes the great majority. The freedom of religious
belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance
with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority.

ISSUE: Whether or not the expulsion of petitioners violated their freedom of religion?
HELD:
YES. The Court held that the expulsion of the petitioners from the school was not justified.
Religious freedom is a fundamental right of highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator. The right to religious
profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on
one’s belief. The first is absolute as long as the belief is confined within the realm of thought.
The second is subject to regulation where the belief is translated into external acts that affect
the public welfare. The only limitation to religious freedom is the existence of grave and
present danger to public safety, morals, health and interests where State has right to prevent.
Petitioners stress that while they do not take part in the compulsory flag ceremony, they do not
engage in “external acts” or behavior that would offend their countrymen who believe in expressing
their love of country through the observance of the flag ceremony. They quietly stand at attention
during the flag ceremony to show their respect for the right of those who choose to participate in the
solemn proceedings. Since they do not engage in disruptive behavior, there is no warrant for their
expulsion.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13954 August 12, 1959

GENARO GERONA, ET AL., petitioners-appellants,


vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.

K.V. Felon and Hayed C. Cavington for appellant.


Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.

MONTEMAYOR, J.:

Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their
complaint. Acting upon the "Urgent Motion for Writ of Preliminary Injunction" filed on behalf of
petitioners of December 12, 1958, and without objection on the part of the Solicitor General, by
resolution of this Court of December 16, we issued the corresponding writ of preliminary injunction
restraining respondents from excluding or banning petitioners-appellants, their children and all other
of Jehovah's Witnesses for whom this action has been brought, from admission to public schools,
particularly the Buenavista Community School, solely on account of their refusal to salute the flag or
preventing their return to school should they have already been banned, until further orders from this
Court.

The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and
went into effect. Acting upon section 2 of said Act authorizing and directing the Secretary of Education
to issue or cause to be issued rules and regulations for the proper conduct of the flag ceremony, said
Secretary issued Department Order No. 8, series of 1955 on July 21, 1955 which Department Order
quoting Republic Act No. 1265 in its entirety, we reproduce below for purpose of reference:

"Republic of the Philippines


Department of Education
Office of the Secretary
Manila

Department Order
No. 8, s. 1955

July 21, 1955

COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS

To the Director of Public Schools and the Director of Private Schools:

1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony
Compulsory in all Educational Institutions," which is self-explanatory.

SECTION 1. All educational institutions henceforth observe daily flag ceremony,


which shall be simple and dignified and shall include the playing or singing of the
Philippine National Anthem.
SECTION 2. The Secretary of Education is hereby authorized and directed to issue or
cause to be issued rules and regulations for the proper conduct of the flag ceremony
herein provided.

SECTION 3. Failure of refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education, after
proper notice and hearing, shall subject the educational institution concerned and its
head to public censure as an administrative punishment which shall be published at
least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag ceremony provided by this Act, the
Secretary of Education, after proper notice and hearing, shall cause the cancellation of the
recognition or permit of the private educational institution responsible for such failure.

SECTION 4. This Act shall take effect upon its approval.

Approved, June 11, 1955.

2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct
of the required flag ceremony, given in the in closure to this Order, are hereby promulgated.
These rules and regulations should be made known to all teachers and school officials, public
and private. The patriotic objective or significance of the Act should be explained to all pupils
and students in the schools and to all communities through the purok organizations and
community assemblies.

(Sgd.) G. HERNANDEZ, JR.


Secretary of Education

Incl.:
As stated

(Inclosure of Department order No. 8, s. 1955)

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every
school day throughout the year. It shall be raised at sunrise and lowered at sunset. The flag
staff must be straight, slightly and gently tapering at the end, and of such height as would give
the Flag a commanding position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every
morning except when it is raining, in which event the ceremony may be conducted indoors in
the best way possible. A retreat shall be held in the afternoon of the same day.

The flag-raising ceremony in the morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises
shall assemble in formation facing the flag. At command, books shall be put away or held in
the left hand and everybody shall come to attention. Those with hats shall uncover. No one
shall enter or leave the school grounds during the ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the school band
or without the accompaniment if it has none; or the anthem may be played by the school band
alone. At the first note of the Anthem, the flag shall be raised briskly. While the flag is being
raised, all persons present shall stand at attention and execute a salute. Boys and men with
hats shall salute by placing that hat over the heart. Those without hats may stand with their
arms and hands downed and straight at the sides. Those in military or Boy Scout uniform
shall give the salute prescribed by their regulations. The salute shall be started as the Flag
rises, and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in unison of
following patriotic pledge (English or vernacular version 0, which may bring the ceremony to a
close. This is required of all public schools and of private schools which are intended for
Filipino students or whose population is predominantly Filipino.

ENGLISH VERSION

I Love the Philippines.


It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

3. The retreat shall be observed as follows:

a. Teachers and pupils or faculty members and students whose classes and after the last
school period in the afternoon before sun down shall assemble facing the flag. At command,
the Philippine National Anthem shall be sung with accompaniment of the school band. If the
school has no band, the assembly will only sing the Anthem. Boys who have been taking part
in preparatory military training or Boy Scout activities shall attend the retreat in formation and
execute the salute prescribed for them. Others shall execute the same salute and observe the
same deportment as required of them in the flag-raising ceremony. The flag should be
lowered slowly so that it will be in the hands of the color detail at the sound of the last note of
the Anthem.

b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the
singing of the National Anthem, for the retreat. At the sound of the first note, the assembly
shall stand at attention facing the flag and observe the same deportment as required in the
flag-raising ceremony. Or, it may have its bugle corp play "To the Colors" and at the sound of
the first note everybody within hearing distance shall stand at attention, face the flag, and
observe the same deportment as required in the flag-raising ceremony.

4. The flag should be handled reverently in raising or lowering it and not allowed to touch the
ground. This can be insured by having one pupil hold the flag while another pupil fastening it
to or unfasten it from the halyard.

5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast,
allowing it to fly there for a moment, and then brought down to half-mast. To lower the flag, it
must again be hoisted to full-mast before bringing it down."

In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955
addressed to Division Superintendents of Schools, enclosing a copy of Department Order No. 8,
series of 1955 and enjoining strict compliance therewith.

It would appear that pursuant to the Department Order in question, the flag ceremony contemplated
therein was held daily in every school, public and private. Petitioners' children attending the
Buenavista Community School, Uson, Masbate, refused to salute the flag, sing the national anthem
and recite the patriotic pledge contrary to the requirement of Department Order No. 8; as a result they
were expelled from school sometime in September, 1955. It is said that other children similarly
situated who refused or failed to comply with the requirement about saluting the flag are under threats
of being also expelled from all public schools in the Philippines.

Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of
this flag ceremony, they and their children attending school be allowed to remain silent and stand at
attention with their arms and hands down and straight at the sides and that they be exempted from
executing the formal salute, singing of the National Anthem and the reciting of the patriotic pledge,
giving their reason for the same. On December 16, 1955 the Secretary of Education wrote to counsel
for petitioner denying the petition, making it clear that the denial was the final and absolute stand of
the Department of Education on the matter and that counsel may thereafter feel free to seek a judicial
determination of the constitutionality or interpretation of Republic Act No. 1265 as construed and
applied to Jehovah's Witnesses. The letter also informed petitioners' counsel that with reference to his
letter of December 1, 1955 relative to the request for reinstatement of petitioners' children who had
been expelled from school for non-compliance with Department Order No. 8, no favorable action
could be taken thereon. So, on March 27, 1957 petitioners commenced the present action asking that
a writ of preliminary injunction issue to restrain the Secretary of Education and the Director of Public
Schools from enforcing Department Order No. 8 "as applied to petitioners and all others of Jehovah's
Witnesses for whom this action is brought and to restrain them from excluding from the public schools
the children of the petitioners on account of their refusal to execute a formal salute to the flag, sing the
national anthem and recite the patriotic pledge, and that after hearing, the trial court declare
Department Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary injunction
prayed for be made permanent.

Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body


teaching that the obligation imposed by law of God is superior to that of laws enacted by the State.
Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which say:
"Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven
above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down
thyself to them, nor serve them." They consider that the flag is an "image within this command. For
this reason they refuse to salute it.

To further make clear the stand of petitioners as to the relative position and priority of religious
teaching on the one hand and laws promulgated by the State on the other, we quote from appellant's
brief on page 50 thereof:

In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United
States Supreme Court held that the flag `is an emblem of National sovereignty,

To many persons the saluting of a national flag means nothing. To a sincere person who
believed in God and the Bible as his Word, and who is in a covenant with Almighty God to do
his will exclusively, it means much. To such person "sovereignty" means the supreme
authority or power. Many believe that "the higher powers," mentioned in the Bible at Romans
13:1, means the "sovereign state"; but to the Christian this means Jehovah God and his son,
Christ Jesus, Jehovah's anointed King. They, Father and Son are the higher powers, to whom
all must be subject and joyfully obey. (Emphasis supplied)

The question involved in this appeal is a highly important one. We are called upon to determine the
right of a citizen as guaranteed by the Constitution about freedom of religious belief and the right to
practice it as against the power and authority of the State to limit or restrain the same. Our task is
lessened by the fact that petitioners do not challenge the legality or constitutionality of Republic Act
1265. All that they question is the legality or constitutionality of Department Order No. 8, series of
1955 of the Department of Education implementing said Republic Act.

The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in
most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of
belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said
religious belief clashes with the established institutions of society and with the law, then the former
must yield and give way to the latter. The Government steps in and either restrains said exercise or
even prosecutes the one exercising it.

One may believe in polygamy because it is permitted by his religious, but the moment he translates
said religious belief into an overt act, such as engaging or practising plural marriages, he may be
prosecuted for bigamy and he may not plead or involve his religious belief as a defense or as matter
of exemption from the operation of the law.

In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law
prohibiting and punishing polygamy even as against the claim of religious belief of the Mormons. Said
the Court:

So here, as a law of the organization of society under the exclusive dominion of the United
States, it is provided that plural marriages shall not be allowed. Can a man excuse his
practices to the contrary because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself. Government could exist only in name under such
circumstance. (emphasis supplied)

Again, one may not believe in the payment of taxes because he may claim that according to his
religious belief, the payment of taxes means service to one other than God. As long as he confines
himself to mere belief, well and good. But when he puts said belief into practice and he actually
refuses to pay taxes on his property or on his business, then the States steps in, compels payment,
and enforces it either by court action or levy and distraint.

One of the important questions to determine here is the true meaning and significance of the Filipino
flag. Petitioners believe and maintain that it is an image and therefore to salute the same is to go
against their religious belief. "Thou shalt not make unto thee any graven . . . thou shalt not bow down
thyself to them or serve them." They also claim that the flag salute is a religious ceremony,
participation in which is forbidden by their religious belief. We disagree. Appellants themselves (page
51 of their brief) concede that the flag is a symbol of the State. They give the meaning of the word
"image" on page 51 of their brief as follows:

Under the word "image" this comment is given by Webster: "Image, in modern usage,
commonly suggests religious veneration." (Emphasis supplied)

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Considering the complete separation of church and state in our system of
governments, the flag is utterly devoid of any religious significance. Saluting the flag consequently
does not involve any religious ceremony. The flag salute, particularly the recital of the pledge of
loyalty is no more a religious ceremony than the taking of an oath of office by a public official or by a
candidate for admission to the bar. In said oath, taken while his right hand is raised, he swears
allegiance to the Republic of the Philippines, promise to defend the Constitution and even invokes the
help of God; and it is to be doubted whether a member of Jehovah's Witness who is a candidate for
admission to the Philippine Bar would object to taking the oath on the ground that is religious
ceremony.

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with
the courts. It cannot be left to a a religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there might be as many interpretations
and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all sincerity and good faith, may want
to give to such ritual or ceremony.

We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at
attention with their arms and hands down straight at the sides, and they agree that boys, members of
Jehovah's Witness who have been taking part in military training or Boy Scout activities, and are in
uniform, may execute the salute to the flag prescribed by the Circular for them. So, the requirement
contained in Department Order No. 8 that during the flag ceremony those without hats may stand with
their arms and hands down and straight at the sides, including the formal salute by boys in military
and boy Scout uniform, meets with the conformity of petitioners. Of course, there is the other
requirement that boys and men with hats shall salute the flag by placing their hats over the heart, but
petitioners and other members of the Jehovah's Witness could well solve this requirements or avoid it
by putting away their hats just as pupils books, may put them away, at command (Rules and
Regulations, Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may be
reduced to their objection to singing the National Anthem and reciting the patriotic pledge.

After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning
of this decision, frankly we find nothing, absolutely nothing, objectionable, even from the point of view
of religious belief. The school child or student is simply made to say that he loves the Philippines
because it is the land of his birth and the home of his people; that because it protects him, in return he
will heed the counsel of his parents, obey the rules and regulations of his school, perform the duties of
a patriotic and law-abiding citizen; and serve his country unselfishly and faithly, and that he would be
a true Filipino in thought, in word, and in deed. He is not even made to pledge allegiance to the flag or
to the Republic for which it stands. So that even if we assume for a moment that the flag were an
image, connoting religious and veneration instead of a mere symbol of the State and of national unity,
the religious scruples of appellants against bowing to and venerating an image are not interfered with
or otherwise jeopardized.

And as to the singing of the National Anthem, which we reproduce below:

Land of the morning,


Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.

the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of
suffering and dying for it. It does not even speak of resorting to force and engaging in military service
or duty to defend the country, which service might meet with objection on the part of conscientious
objectors. Surely, petitioners do not disclaim or disavow these noble and sacred feelings of patriotism,
respect, even veneration for the flag and love of coutnry for which the flag stands.

Men may differ and do differ on religous beliefs and creeds, government policies, the wisdom and
legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of
country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these
are matters in which they are mutually and viatlly interested, for to them, they mean national existence
and survival as a nation or national extinction.
In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for
their failure or refusal to obey school regulations about the flag salute they were not being persecuted.
Neither were they being criminally prosecuted under threat of penal sacntion. If they chose not to
obey the flag salute regulation, they merely lost the benefits of public education being maintained at
the expense of their fellow citizens, nothing more. According to a popular expression, they could take
it or leave it. Having elected not to comply with the regulations about the flag salute, they forfeited
their right to attend public schools.

In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the
present case, appellants therein were taxpayers and citizens of the United States and of California.
The University of California received endowment and support from the State legislature under certain
conditions such as that any resident of California of the age of 14 years or upward of approved moral
character shall have the right to enter the University as a student and receive instructions therein. The
University as part of its cirriculum and instruction required military science and tactics in the Reserve
Officers Training Corps. Appellants conformed to all requirements of the University except taking the
course in military science and tactics and for this the regents of the University suspended them.
Appellants were members of the Methodist Espiscopal Church and of the Epworth League. For many
years their fathers have been ordained ministers of that church. They believed that war and
preparation for war is a violation of their religious belief. In other words, they were conscientious
objectors to war. They believed that war, training for war, and military training were immoral, wrong
and contrary to the letter and spirit of the teaching of God and precepts of the Christian religion. They
petitioned for exemption from the military science and tactics course but the regents refused to make
military training optional or to exempt them and they were suspended. So they initiated court action
with a California Supreme Court to compel the regents of the University to admit them. In that action
they assailed the validity of the State law providing for military training in the University. The petition
was denied by the State Supreme Court. In affirming the decision of the State Supreme Court, the
Supreme Court of the United States held that:

. . . California has not drafted or called them to attend the University. They are seeking
education offered by the State and at the same time insisting that they be excluded from the
prescribed course solely upon grounds of their religious beliefs and consicientious objections
to war, preparation for war and military education. Taken on the basis of the facts alleged in
the petition, appellants' contentions amount to no more than an assertion that the due
process clause of the Fourtheenth Amendment as a safeguard of liberty' confers the right to
be students in the state university free from obligation to take military training as one of the
conditions of attendance.

Viewed in the light of our decisions that proposition must at once be put aside as untenable . .
.

In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later
naturalization case, the applicant was unwilling, because of conscientious objections, to take
unqualifiedly the statutory oath of allegiance which contains this statement: "That he will
support and defend the constitution and laws of the United States against all enemies, foreign
and domestic, and bear true faith and allegiance to the same." U.S.C. title 8, Sec. 381. His
petition stated that he was willing if necessary to take up arms in defense of this country, "but
I should want to be free to judge of the necessity." In amplification he said: "I do not undertake
to support "my country, right or wrong" in any dispute which may arise, and I am not willing to
poromise beforehand, and without knowing the cause for which my country may go to war,
either that I will or that I will not "take up arms in defense of this country," however
"necessary" the war may seem to be to the government of the day." The opinion of this court
quotes from petitioner's brief a statement to the effect that it is a fixed principle of our
Constitution, zealously guarded by our laws, that a citizen cannot be forced and need not
bear arms in a war if he has conscientious religious scruples against doing so." And, referring
to that part of the argument in behalf of the applicant this court said (p. 623): "This, if it means
what it seems to say, is an astonishing statement. Of course, there is no such principle of the
Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to
bear arms in obedience to no constitutional provision, express or implied; but because, and
only because, it has accorded with the policy of Congress thus to relieve him . . . The
previlege of the native-born conscientious objector to avoid bearing arms comes not from the
Constitution but from the acts of Congress. That body may grant or withhold the exemption as
in its wisdom it sees fit; and if it be withheld, the native-born conscientious objector cannot
successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless
extent of the war power as above illustrated, which include by necessary implication, the
power, inthe last extremity, to compel armed serviced of any citizen in the land, without regard
to his objections or his views in respect of the justice or morality of the particular war or of war
in general. In Jacobson v. Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651, 25 S. Ct. 358,
3 Ann. Cas, 765, this Court (upholding a state compulsory vaccination law) speaking of the
liberties guaranteed to the individual by the Fourteenth Amendment, said: "... and yet he may
be compelled, by force if need be, against his will and without regard to his personal wishes
or his pecuniary intersts, or even his religious or political convictions, to take his place in the
ranks of the army of his country and risk the chance of being shot down in its defense.

And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now
before us, decided against the contention of a student in the University of Maryland who on
conscientious grounds objected to military training there required. His appeal to this Court
was dismissed for the want of a substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54
S. Ct. 131.

Plainly there is no ground for the contention that the regents' order, requiring able-bodied
male students under the age of twenty-four as a condition of their enrollment to take the
prescribed instruction in military science and tactics, transgresses any constitutional right
asserted by these appellants.

Mr. Justice Cardozo in his concurring opinion said:

I assume for present purposes that religious liberty protected by the First Amendment against
invasion by the nation is protected by the Fourteenth Amendment against invasion by the
states.

Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the
state to "the free exercise" of religion as the phrase was understood by the foundrs of hte
nation, and by the generations that have followed. Davis vs. Beasin, 133 U.S. 333, 342, 33 L.
ed. 637, 10 s.Ct. 299.

There is no occasion at this time to mark the limits of governmental power in the exaction of
military service when the nation is at peace. The petitioners have not been required to bear
arms for any hostile purpose, offensive or defensive, either now or in the future. They have
not even been required in any absolute or peremptory way to join courses of instruction that
will fit them to bear arms. If they elect to resort to an institution for higher education
maintained with the state's moneys, then they are comanded to follow courses of instruction
believed by the state to be vital to its welfare. This may be condemned by some unwise or
illiberal or unfair when there is violence to conscientious scruples, either religious or merely
ethical. More must be shown to set the ordinance at naught. In controversies of this order
courts do not concern themselves with matters of legislative policy, unrelated to privileges or
liberties secured by the organic law. The first Amendment, if it be read into the Fourteenth,
makes invalid any state law `respecting an establishment of religion or prohibiting the free
exercise thereof.' Instruction in military science is not instruction in the practice or tenets of a
religion. Neither directly nor indirectly is government establishing a state religion when it
insists upon such training. Instruction in military science, unaccompanied here by any pledge
of military service, is not an interference by the state with the free exercise of religion when
the liberties of the constitution are read in the light of a century and a half of history during
days of peace and war . . .

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of.
The conscientious objector, if his liberties were to be thus extended, might refuse to
contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of
any other end, condemned by his conscience as irreligious or immoral. The right of private
judgment has never yet been so exalted above the powers and the compulsion of the
agencies of government. One who is a martyr to a principle—which may turn out in the end to
be a delusion or an error—does not prove by his martyrdom that he has kept within the law."

We are not unmindful of the decision of the United States Federal Supreme Court on similar set of
facts. In the case of Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah
Witnesses children were expelled from the public school of Minersville for refusing to salute the
national flag in accordance with the regulations poromulgated by the school board for the daily flag
ceremony. Their father Gobitsi on behalf of his two children and in his own behalf brought suit to
enjoin the school authorities from continuing to exact the execution of the flag ceremony as a
condition of his children's admittance in school. After trial, the District Court gave him relief and this
decree was affirmed by the Circuit Court of Appeals. On appeal to the Federal Supreme Court, the
decrees of both the District Court and the Circuit Court of Appeals were reversed with the lone dissent
of Chief Justice Stone, on the ground that the requirement of participation of all pupils in the public
schools in the flag ceremony did not infringe the due process law and liberty guaranteed by the
Constitution, particularly the one referring to religious freedom and belief. Three years later, that is, on
June 14, 1943, the ruling laid down in the Minersville School District vs. Gobitis case, was in the case
of West Virginia State Board of Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply
divided court, the majority opinion being penned by Mr. Justice Jackson in which Justice Black,
Douglas and Murphy concurred; while Mr. Justice Frankfurter who wrote the opinion in the Gobitis
case, filed a long dissenting opinion, and Justices Roberts and Reed adhered to the views expressed
in the Gobitis case.

Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to
criticize the doctrine of the West Virginia vs. Barnette case, frankly, we are more inclined to favor the
former as more in keeping with the spirit of our Constitution and the government policy as laid down in
Republic Act No. 1265 entitles "An Act Making Flag Ceremony Compulsory In All Educational
Institutions".

We cannot help thinking that one reason that may have possibly influenced the decision in the West
Virginia State Board of Education vs. Barnette case, was that the children involved in said case and
their parents found themselves in a serious dilemma for refusing to salute the flag as required by the
regulations of the School Board. They were expelled by the School Board and their absence was
considered unlawful and because of the law of compulsory school atendance of all children of school
age, they were considered as truants and the school officials threatened to send them to
reformatories maintained for criminially inclinded juveniles. Parents of such children have been
prosecuted or were threatened with prosecution for cause such as alleged delinquency and if
convicted, were subject to fine not exceeding $50.00 and a jail term not exceeding 30 days. That is
why in the majority opinion it was stated:

. . . The sole conflict is between authority and rights of the individual. The state asserts power
to conditions access to public education on making a prescribed sign and profession and at
the same time to coerce attendance by punishing both parent and child . . .

Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have
a law (Republic Act 896) requiring compulsory enrollment of children of shcool age, but said law
contains so many exceptions and exemptions that it can be said that a child of school age is very
seldom compelled to attend school, let alone the fact that almost invariably, there is school crisis
every year wherein the pupils applying for admission in public schools could not be accommodated,
and what is equally important is that there is no punishment or penal sanction either for the pupil who
fail to attend school or is expelled for failure to comply with school regulations such as the compulsory
flag salute ceremony, or his parents.

In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the
decision in the case of West Virginia, the Supreme Court of the United States affirmed a decision of
the Illinois Supreme Court refusing admission of petitioner Clyde Wilson Summers to the Illinois Bar.
Summers had complied with tall the prerequisites to admission to the Bar of that state, but he was a
conscientious objector who did not believe in the use of force or war because of his religious belief.
He described this attitude of his as follows:
The so-called "misconduct" for which petitioner could be reproached for is his taking the New
Testament too seriously. Instead of merely reading or preaching the Sermon on the Mount, he
tries to practice it. The only fault of the petitioner consists in his attempt to act as a good
Christian in accordance with his interpreation of the Bible, and according to the dictates of his
conscience. We respectfully submit that the profession of law does nt shut its gates to
persons who have qualified in all other respects even when they follow in the footsteps of that
Great Teacher of mankind who delivered the Sermon on the Mount. We respectfully submit
that under our Constitutional guarantees even good Christians who have met all the
requirements for the admission to the bar may be admitted to practice law

The Constitution of Illinois required service in the militia in time of war of men of petitioner's age
group. The Federal Supreme Court defined the position of Summers as a conscientious objector in
the following words:

. . . without detailing petitioner's testimony before the Committee or his subsequent statments
in the record, his position may be compendiously stated as one of non-violence. Petitioner will
not serve in the armed forces. While he recognizes a difference between the military and
police forces, he would not act in the latter to coerce threatened violations. Petitioner would
not use force to meet aggression against himself or his family, no matter how aggravated or
whether or not carrying a danger of bodily harm to himself or others. He is a believer in
passive resistance. We need to consider only his attitude toward service in the armed forces.

It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious
belief. In affirming the decision of the Illinois Supreme Court excluding Summers from the practice of
law in that state, the Federal Supreme Court held that the action of the State Supreme Court did not
violate the principle of religious freedom contained in the Constitution.

If a man lived, say on an island, alone and all by himself without neighbors, he would normally have
complete and absolute rights as to the way he lives, his religion, incuding the manners he practices
his religious beliefs. There would be no laws to obey, no rules and regulations to follow. He would be
subject only to Nature's physical laws. But man iis gregarious by nature and instinct and he gravitates
toward community life, to receive and enjoy the benefits of society and of social and political
organization. The moment he does this and he becomes a member of a community or nation, he has
to give rights for the benefit of his fellow citizens and for the general welfare, just as his fellow men
and companions also agree to a limitation of their rights in his favor. So, with his religion. He may
retain retain his freedom or religious belief, but as to practising the same, he would have to give up
some of those practices repugnant to the general welfare and subordinate them to the laws and
sovereignty of the State. In order words, the practice of religion or religious belief is subject to
reasonable and non-discrminatory laws and regulations by the state.

In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme
Court affirmed a decision convicting Sarah Prince of a violation of the Child Labor Law of
Massachusetts. Mr. Justice Rutledge who wrote the opinion tersely described the case thus:

The case brings for review another episode in the conflict between Jehovah's Witneses and
state authority. This time Sarah Prince appeals from convictions for violating Massachusetts'
child labor laws, by acts said to be a rightful exercise of her religious convictions.

When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a
girl nine years of age. . . . (Emphasis supplied)

The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to
distribute religious pamphlets intended to propagate the religion of Johovah Wiitness. The question
involved was whether or not the law in question contravened the Fourtheenth Amendment by denying
appellant freedom of religion and denying to her the equal protection of the law. Defendant claimed
that the child was exercising her God given right and her constitutional right to preach the gospel and
that no preacher of God's commands shold be interfered with. She rested her case squarely on
freedom of religion. In affirming the judgment of conviction and upholding the law as agains the claiim
of relgion and the exercise of religious belief, the court said:

. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to
guard the general interest in youth's well-being, the state as parens patriae may restrict the
parent's control by requiring shcool attendance, regulating or prohibiting the child's labor, and
in many other ways. Its authority is not nullified merely because the parent grounds his claim
to control the child's course of conduct on religion or conscience. Thus, he cannot claim
freedom from compulsory vaccination for the child more than for himself on relgious grounds.
The right to practice religion freely does not include liberty to expose the community or the
child to communicable disease or the latter to ill health or death. . . . It is too late now to doubt
that legislation appropriately designed to reach such evils is withinthe state's police power,
whether against the parent's claim to control of the child or one that religious scruples dictate
contrary action.

Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education
was not imposing a religion or religious belief or a religious test on said students. It was merely
enforcing a non-discriminatory school regulation applicable to all alike whether Christian, Moslem,
Protestant or Jehovah's Witness. The State was merely carrying out the duty imposed upon it by the
Constitution which charges it with supervision over and regulation of all educational institutions, to
establish and maintain a complete and adequate system of public education, and see to it that all
schools aim to develop among other things, civic conscience and teach the duties of citizenship. (Art.
XIV, section 5 of the Constitution). It does nothing more than try to inculcate in the minds of the school
population during the formative period of their life, love of country and love of the flag, all of which
make for united and patriotic citizenry, so that later in after years they may be ready and willing to
serve, fight, even die for it. It is well known that whatever is taught to the youth during this period,
such as love of God, of parents, respect for elders, love of the truth, loyalty, honoring one's word and
respecting the rights of other, becomes a habit or second nature that will remain with them always.
School children of kingdoms and empires are taught early to respect and love the king or the emperor
for these rulers and sovereigns symbolize the nation, and the children as future citizens or subjects
will come to love their country.

Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly
but they do "question the attempt to compel conscientious objectors guided by the word of God to
salute the flag or participate in the ceremony to specific commandment of Jehovah God. It is perfectly
proper and lawful for one nt bound by a covenant with Jehovah to salute the flag when that person
desires to salute it. It is entirely wrong to interfere with that right or prevent such one from saluting the
flag. Conversely, it is also true that it is wrong and illegal to compel one who, for concience' sake,
cannot participate in the ceremony." (p. 85, Appellant's Brief)

The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that
they have no valid right to such exemption is that the latter would disrupt shcool discipline and
demoralize the rest of the school population which by far constitutes the great majority. If the children
of Jehovah Witnesses are exempted, then the other pupils, especially the young ones seeing no
reason for such exemption, would naturlly ask for the same privilege because they might want to do
something else such as play or study, instead of standing at attention saluting the flag and singing the
national anthem and reciting the patriotic pledge, all of which consume considerable time; and if to
avoid odions discrimination this exemption is extended to others, then the flag ceremony would soon
be a thing of the past or perhaps conducted with very few participants, and the time will come when
we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic, even tragic situation, and
all because a small portion of the shcool population imposed its will, demanded and was granted an
exemption. In a way that might be regarded as tyranny of the minority, and a small minority at that.

In a few cases, such exemptions in a limited way have been afforded members of a religious group.
Conscientious objectors in the United States who because of their religion were unwilling to serve in
the war particularly as regards actual fighting or field duty, were allowed to do some work in relation to
the war, but not involving combat duty or the use of force. But that was by special legislation. If that is
possible here as regards exemption from participation in the flag ceremony, then petitioners would
have to look to the Legislature, not the courts for relief.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption
form or non-compliance with reasonable and non-discriminatory laws, rules and regulations
promulgated by competent authority. As was said by Mr. Justice Frankfurter in h is dissent in West
Virginia vs. Barnette, supra:

The constitutional protection of religious freedom ... gave religious equality, not civil immunity.
Its essence is freedom from conformity to religious dogma, not freedom from conformity to
law because of religious dogma. Religious loyalties may be exercised without hindrance from
the State, not the State may not exercise that which except by leave of religious loyalties is
within the domain of temporal power. Otherwise, each individual could set up his own censor
against obedience to laws conscientiously deemed for the public good by those whose
business it is to make laws. (West Virginia State Board vs. Barnette, supra, at p. 653;
emphasis supplied)

In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration;
rather it is symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty
and national unity; that the flag salute is nt a religious ceremony but an act and profession of love and
allegiance and pledge of loyalty to the fatherland which the flag stands for; that by authority of the
legislature, the Secretary of Education was duly authorized to promulgate Department Order No. 8,
series of 1955; that the requirement of observance of the flag ceremony or salute provided for in said
Department Order No. 8, does not violate the Constitutional provision about freedom of religion and
exercise of religion; that compliance with the non-discriminatory and reasonable rules and regulations
and school disicipline, including observance of the flag ceremony is a prerequisite to attendance in
public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were
properly excluded and dismissed from the public shcool they were attending.

In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction
heretofore issued is ordered dissolved. No costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador and Endencia, JJ., concur.

Separate Opinions

BARRERA, J., concurring:

I am in substantial accord with teh well-thought and well-expressed opinion of Mr. Justice
Montemayor.

As much reliacne has been place by appellants on the Barnette case decided by the Supreme Court
of the United States (West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 87 L. ed.
1628), two fundamental features distinguishing that case from the one before us, bear some
stressing.

The underlying and, I belive, compelling consideration that impelled the majority in the Barnette case
to overrule the Gobitis decision (Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed 1375)
was the compulsory nature of the order of the State Board of Education making non-compliance
therewith virtually unlawful in the sense that under the West Virginia Code, upon expulsion of the
disobeying pupil, his parents or guardian become liable to criminal prosecution 1 for such absence due
to expulsion and if convicted are subjected to fine not exceeding $50 and jail term not exceeding thirty
days.2 The delinquent pupil may be proceeded against and sent to reformatories maintained for
ciminally inclined juveniles.3 Hence, the Court treated the case as one where "the sole conflict is
between authority and rights of the individual. The State asserts power to condition access to public
education on making a prescribed sign and profession, and at the same time to coerce attendance (in
school) by punishing both parent and child". As thus presented, really the conflict there between
authority and liberty become deeply sharpened and has attained the proportion of repugnance to a
degree that left no choice to the Court except to apply the rationale of the grave-and-imminent-danger
rule and to enjoin, under the circumstances, the enforcement of the West Virginia School Regulation.

Fortunately the problem the instant case presents to us is unaccompanied by such dire
consequences. Non-compliance with our prescribed flag ceremony does not result in criminal
prosecution either of the pupil or of the parent. All that the unwilling pupil suffers is inability to continue
his studies in a public school. If this and nothing else is the consequence, as it presently appears to
be the complaint of appellants in this case, then I perceive no clear offense is done to the
Constitution.

One other significant distinction between the Barnette case and the one before us is the substnatial
difference in the manner the flag salute is to be executed under the two laws, and of course, the
varying reaction and attitude taken by the Jehovah's Witnesses in relation thereto. In West Virginia,
the law requires the "Stiff-arm" salute, the saluter to keep the right hand raised with palm turned up
while the following is repeated: "I pledge allegiance to the Flag of the United States of America and to
the Republic for which it stands; one Nations, indivisible with liberty and justice for all." The Jehovah's
Witnesses considered this posture of raising the hand at the same time reciting the pledge as an act
of obeisance contrary to their religious beliefs.

Here, what is required of all persons present during the flag ceremony is to stand at attention while
the flag is being raised and the National Anthem is being played or sung. Boys and men with hats
shall place the hat over the heart. Those without hats may stand with their arms and hands down and
straight at the sides. Those in military or Boy Scout uniform shall give the salute prescribed by their
regulations.

Appellants here have manifested through counsel, both in their brief and, I understand, in the course
of the oral argument, that they do not object to this requirement of standing at attention with their arms
and hands down and straight at the sides. Consequently, there seems to be no irreconciliable
fundamental conflict, except perhaps as regards the singing of the National Anthem and the recital
(unaccompanied by any particular physical position) of the patriotic pledge near the close of the
ceremony. As to the import of the National Anthem and the Patriotic Pledge, I can add nothing to the
very sober and well-considered opinion of Justice Montemayor.

As I see the issuance, disentangled as it should and could be from the stress and strain of counsels'
doctrinal discussion and argumentation on the fundamentals of the freedom of religion about which
there could be no serious disagreement, and if viewed and interpreted rationally — in a spirit of
harmony, goodwill and in keeping with an appropriate sense of nationalism — I find no reasonable
consideration making the flag ceremony executed in the manner prescribed by the questioned
Department order and regulation, clearly repugnant to the Constitution.

Footnotes

1 Section 1851 (1) West Virginia Code.

2 Section 1847, 1851, Idem.

3 Section 4904 (4), Idem.


CASE DIGEST : Gerona Vs Secretary of Education
G.R. No. L-13954 August 12, 1959 GENARO GERONA, ET AL., petitioners-appellants, vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees

Facts : Petitioners belong to the Jehova’s Witness whose children were expelled from their schools
when they refused to salute, sing the anthem, recite the pledge during the conduct of flag ceremony.
DO No. 8 issued by DECS pursuant to RA 1265 which called for the manner of conduct during a flag
ceremony. The petitioners wrote the Secretary of Education on their plight and requested to reinstate
their children. This was denied. As a result, the petitioners filed for a writ of preliminary injunction
against the Secretary and Director of Public Schools to restrain them from implementing said DO No.
8. The lower court (RTC) declared DO 8 invalid and contrary to the Bill of Rights

ISSUE : WON DO .8 is constitutional

HELD : The court held that the flag is not an image but a symbol of the Republic of the Philippines,
an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it
and the Constitution guarantee and protect. Considering the complete separation of church and state
in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag
consequently does not involve any religious ceremony. After all, the determination of whether a
certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious
group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and
misunderstanding for there might be as many interpretations and meanings to be given to a certain
ritual or ceremony as there are religious groups or sects or followers. The freedom of religious belief
guaranteed by the Constitution does not and cannot mean exemption form or non-compliance with
reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority. In
enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their
failure or refusal to obey school regulations about the flag salute they were not being persecuted.
Neither were they being criminally prosecuted under threat of penal sacntion. If they chose not to
obey the flag salute regulation, they merely lost the benefits of public education being maintained at
the expense of their fellow citizens, nothing more. According to a popular expression, they could take
it or leave it. Having elected not to comply with the regulations about the flag salute, they forfeited
their right to attend public schools The Filipino flag is not an image that requires religious veneration;
rather it is symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty
and national unity; that the flag salute is not a religious ceremony but an act and profession of love
and allegiance and pledge of loyalty to the fatherland which the flag stands for; that by authority of the
legislature, the Secretary of Education was duly authorized to promulgate Department Order No. 8,
series of 1955; that the requirement of observance of the flag ceremony or salute provided for in said
Department Order No. 8, does not violate the Constitutional provision about freedom of religion and
exercise of religion; that compliance with the non-discriminatory and reasonable rules and regulations
and school discipline, including observance of the flag ceremony is a prerequisite to attendance in
public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were
properly excluded and dismissed from the public school they were attending