Consti 2

G.R. No.
L-27833
April 18, 1969
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE

CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and
FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Taada as
amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral process by
Congress calling a halt to the undesirable practice of prolonged political campaign
bringing in their wake serious evils not the least of which is the ever increasing cost
of seeking public office, is challenged on constitutional grounds. More precisely,
the basic liberties of free speech and free press, freedom of assembly and freedom
of association are invoked to nullify the act. Thus the question confronting this
Court is one of transcendental significance.
It is faced with the reconciliation of two values esteemed highly and cherished
dearly in a constitutional democracy. One is the freedom of belief and of
expression availed of by an individual whether by himself alone or in association
with others of similar persuasion, a goal that occupies a place and to none in the
legal hierarchy. The other is the safeguarding of the equally vital right of suffrage
by a prohibition of the early nomination of candidates and the limitation of the
period of election campaign or partisan political activity, with the hope that the timeconsuming efforts, entailing huge expenditures of funds and involving the risk of
bitter rivalries that may end in violence, to paraphrase the explanatory note of the
challenged legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of judicial
duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so
not on the assumption that to us is granted the requisite knowledge to set matters
right, but by virtue of the responsibility we cannot escape under the Constitution,
one that history authenticates, to pass upon every assertion of an alleged

infringement of liberty, when our competence is appropriately invoked.
This then is the crucial question: Is there an infringement of liberty? Petitioners so
alleged in his action, which they entitled Declaratory Relief with Preliminary
Injunction, filed on July 22, 1967, a proceeding that should have been started in
the of Court of First Instance but treated by this Court as one of prohibition in view
of the seriousness and the urgency of the constitutional issue raised. Petitioners
challenged the validity of two new sections now included in the Revised Election
Code, under Republic Act No. 4880, which was approved and took effect on June
17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period
of election campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity" are
likewise defined. The former according to Act No. 4880 "refers to any person
aspiring for or seeking an elective public office regarded of whether or not said
person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office." Then the acts were specified.
There is a proviso that simple expression of opinion and thoughts concerning the
election shall not be considered as part of an election campaign. There is the
further proviso that nothing stated in the Act "shall be understood to prevent any
person from expressing his views on current political problems or issues, or from
mentioning the names of the candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official candidate
for Vice-Mayor of Manila to which he was subsequently elected on November 11,
1967; petitioner Gonzales, on the other hand, is a private individual, a registered
voter in the City of Manila and a political leader of his co-petitioner. It is their claim
that "the enforcement of said Republic Act No. 4880 in question [would] prejudice
[their] basic rights..., such as their freedom of speech, their freedom of assembly
and their right to form associations or societies for purpose not contrary to law,
guaranteed under the Philippine Constitution," and that therefore said act is
unconstitutional.
After invoking anew the fundamental rights to free speech, free press, freedom of
association and freedom of assembly with a citation of two American Supreme
Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the
law that would legally justify its passage and [enforcement] whether for reasons of
public policy, public order or morality, and that therefore the enactment of Republic
Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment
of the constitutional rights of freedom of speech, freedom of assembly and the right
to form associations and societies for purposes not contrary to law, ..." There was
the further allegation that the nomination of a candidate and the fixing of period of
election campaign are matters of political expediency and convenience which only
political parties can regulate or curtail by and among themselves through selfrestraint or mutual understanding or agreement and that the regulation and
limitation of these political matters invoking the police power, in the absence of
clear and present danger to the state, would render the constitutional rights of
petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be declared
unconstitutional, null and void, respondent Commission on Elections, in its answer
filed on August 1, 1967, after denying the allegations as to the validity of the act
"for being mere conclusions of law, erroneous at that," and setting forth special
affirmative defenses, procedural and substantive character, would have this Court
dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same date a
resolution was passed by us to the following effect: "At the hearing of case L27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes
Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the
respondent and they were given a period of four days from today within which to
submit, simultaneously,, their respective memorandum in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came from
this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs.
Commission on Elections), the Court, with eight (8) Justice present, having
deliberated on the issue of the constitutionality of Republic Act No. 4880; and a
divergence of views having developed among the Justices as to the
constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code:
considering the Constitutional provision that "no treaty or law may be declared
unconstitutional without the concurrence of two-thirds of all the members of the
(Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the
issue until after the return of the Justices now on official leave."
The case was then reset for oral argument. At such hearing, one of the copetitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as
counsel, assailed the validity of the challenged legislation relying primarily on
American Supreme Court opinion that warn against curtailment in whatever guise
or form of the cherished freedoms of expression, of assemble and of association,
all embraced in the First Amendment of the United States Constitution.
Respondent Commission on Elections was duly represented by Atty. Ramon
Barrios.
Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he did,
arguing most impressively with a persuasive exposition of the existence of
undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked upon as
a limitation on the preferred rights of speech and press, of assembly and of
association. He did justify its enactment however under the clear and present
danger doctrine, there being the substantive evil of elections, whether for national
or local officials, being debased and degraded by unrestricted campaigning,
excess of partisanship and undue concentration in politics with the loss not only of
efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken. The
divergence of views with reference to the paragraphs above mentioned having
continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to
submit memoranda as amici curiae on the question of the validity of R.A. Act No.
4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center
and the U.P. Women Lawyers' Circle were included, among them. They did file
their respective memoranda with this Court and aided it in the consideration of the
constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was raised by
five members of the Court. 6 It is their view that respondent Commission on
Elections not being sought to be restrained from performing any specific act, this
suit cannot be characterized as other than a mere request for an advisory opinion.
Such a view, from the remedial law standpoint, has much to recommend it.
Nonetheless, a majority would affirm, the original stand that under the
circumstances it could still rightfully be treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this Court on
the constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise
be added that the exceptional character of the situation that confronts us, the
paramount public interest, and the undeniable necessity for a ruling, the national
elections being, barely six months away, reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate invocation
of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute.
We are left with no choice then; we must act on the matter.
There is another procedural obstacle raised by respondent to be hurdled. It is not
insuperable. It is true that ordinarily, a party who impugns the validity of a statute or
ordinance must have a substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see
such interest as being possessed by petitioners. It may indicate the clarity of vision
being dimmed, considering that one of the petitioners was a candidate for an
elective position. Even if such were the case, however, the objection is not
necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a
taxpayer to bring an action to restrain the expenditure of public funds through the
enforcement of an invalid or unconstitutional legislative measure. 9
secured by the First Amendment.... That priority gives these liberties a sanctity and
a sanction not permitting dubious intrusions. And it is the character of the right, not
of the limitation, which determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure dealing
with elections, cited in the answer of respondent, militates against a stand
minimizing the importance and significance of the alleged violation of individual
rights: "As so construed by us, it has not been made to appear that section 8189,
Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any
provision of either the state or Federal Constitution on the subject of free speech or
liberty of the press, nor that its operation is in any wise subversive of any one's
constitutional liberty." 11 Another leading State decision is much more emphatic:
"Broad as the power of the legislature is with respect to regulation of elections, that
power is not wholly without limitation. Under the guise of regulating elections, the
legislature may not deprive a citizen of the right of trial by jury. A person charged
with its violation may not be compelled to give evidence against himself. If it
destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be squarely
met.lawphi1.nt
2. In the answer of the respondent as well as its memorandum, stress was laid on
Republic Act No. 4880 as an exercise of the police power of the state, designed to
insure a free, orderly and honest election by regulating "conduct which Congress
has determined harmful if unstrained and carried for a long period before elections
it necessarily entails huge expenditures of funds on the part of the candidates,
precipitates violence and even deaths, results in the corruption of the electorate,
and inflicts direful consequences upon public interest as the vital affairs of the
country are sacrificed to purely partisan pursuits." Evidently for respondent that
would suffice to meet the constitutional questions raised as to the alleged
infringement of free speech, free press, freedom of assembly and 'freedom' of
association. Would it were as simple as that?
3. Now as to the merits. A brief resume of the basic rights on which petitioners
premise their stand that the act is unconstitutional may prove illuminating. The
primacy, the high estate accorded freedom of expression is of course a
fundamental postulate of our constitutional system. No law shall be passed
abridging the freedom of speech or of the press .... 13 What does it embrace? At the
very least, free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship or
punishment. 14 There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 15prosecution for sedition, 16 or
action for damages, 17 or contempt proceedings 18 unless there be a clear and
present danger of substantive evil that Congress has a right to prevent.
An eloquent excerpt from a leading American decision 10 admonishes though

against such a cavalier approach. "The case confronts us again with the duty our
system places on this Court to say where the individual's, freedom ends the State's
power begins. Choice on that border, now as always delicate, is perhaps more so
where the usual. presumption supporting legislation is balanced by the preferred
place given in our scheme to the great, the indispensable democratic freedoms
The vital need in a constitutional democracy for freedom of expression is

undeniable whether as a means of assuring individual self-fulfillment, of attaining
the truth, of assuring participation by the people in social including political
decision-making, and of maintaining the balance between stability and
change. 19 The trend as reflected in Philippine and American decisions is to
recognize the broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of

public issue should be uninhibited, robust, and wide-open. 20 It is not going too far,
according to another American decision, to view the function of free speech as
inviting dispute. "It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger." 21 Freedom of speech and of the press thus means something
more than the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, to take refuge in the existing climate of opinion
on any matter of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those who question, who
do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of expression
involves more than a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith and a whole way
of life. The theory grew out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his fate determined by his own
powers of reason, and his prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a prescription for attaining a
creative, progressive, exciting and intellectually robust community. It contemplates
a mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities. It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear that the
right is not susceptible of any limitation. No law may be passed abridging the
freedom of speech and of the press. The realities of life in a complex society
preclude however a literal interpretation. Freedom of expression is not an absolute.
It would be too much to insist that at all times and under all circumstances it should
remain unfettered and unrestrained. There are other societal values that press for
recognition. How is it to be limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an
acceptable criterion for permissible restriction. Thus: "These are the 'clear and
present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in
a number of cases, means that the evil consequence of the comment or utterance
must be extremely serious and the degree of imminence extremely high' before the
utterance can be punished. The danger to be guarded against is the 'substantive
evil' sought to be prevented." It has the advantage of establishing according to the

above decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous tendency"
rule and explained it thus: "If the words uttered create a dangerous tendency which
the state has a right to prevent, then such words are punishable. It is not
necessary that some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the
legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient danger
to a fair administration of justice? Did its remittance to the PCAC create a danger
sufficiently imminent to come under the two rules mentioned above?" The choice of
this Court was manifest and indisputable. It adopted the clear and present danger
test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was
likewise an implicit acceptance of the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is present
is explained by Justice Branders thus: ... the evil apprehended is so imminent that
it may befall before there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence." 26 For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would
be inappropriate as the means for averting a relatively trivial harm to society."
Justice Black would go further. He would require that the substantive evil be
"extremely serious." 27 Only thus may there be a realization of the ideal envisioned
by Cardozo: "There shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought merges into
action." 28 It received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances and of such a nature
as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree." 29
This test then as a limitation on freedom of expression is justified by the danger or

evil a substantive character that the state has a right to prevent. Unlike
the dangerous tendency doctrine, the danger must not only be clear but also
present. The term clear seems to point to a causal connection with the danger of
the substantially evil arising from the utterance questioned. Present refers to the
time element. It used to be identified with imminent and immediate danger. The
danger must not only be probable but very likely inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits
abridgment by law of freedom of speech or of the press. It likewise extends the
same protection to the right of the people peaceably to assemble. As was pointed
out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a
necessary consequence of our republican institution and complements the right of
free speech. Assembly means a right on the part of citizens to meet peaceably for
consultation in respect to public affairs. From the same Bustos opinion: "Public
policy, the welfare of society and orderly administration of government have
demanded protection for public opinion." To paraphrase the opinion of Justice
Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or
coincidence that the rights to freedom of speech and of the press were coupled in
a single guaranty with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights while not
identical are inseparable. They are cognate rights and the assurance afforded by
the clause of this section of the Bill of Rights wherein they are contained, applies to
all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the
very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect to public affairs and to
petition for redress of grievances." As in the case of freedom of expression, this
right is not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that Congress has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for
purposes not contrary to law. 33 With or without a constitutional provision of this
character, it may be assumed that the freedom to organize or to be a member of
any group or society exists. With this explicit provision, whatever doubts there may
be on the matter are dispelled. Unlike the cases of other guarantee which are
mostly American in origin, this particular freedom has an indigenous cast. It can
trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character, it is

the view of Justice Douglas that it is primarily the first amendment of her
Constitution, which safeguards freedom of speech and of the press, of assembly
and of petition "that provides [associations] with the protection they need if they are
to remain viable and continue to contribute to our Free Society." 34 He adopted the
view of De Tocqueville on the importance and the significance of the freedom to
associate. Thus: "The most natural privilege of man, next to the right of acting for
himself, is that of combining his exertions with those of his fellow creatures and of
acting in common with them. The right of association therefore appears to me
almost inalienable in its nature as the right of personal liberty. No legislator can
attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De
Tocqueville. Since man lives in social it would be a barren existence if he could not
freely associate with others of kindred persuasion or of congenial frame of mind.
As a matter of fact, the more common form of associations may be likely to be
fraternal, cultural, social or religious. Thereby, for almost everybody, save for those
exceptional few who glory in aloofness and isolation life is enriched and becomes
more meaningful.
In a sense, however, the stress on this freedom of association should be on its
political significance. If such a right were non-existent then the likelihood of a oneparty government is more than a possibility. Authoritarianism may become
unavoidable. Political opposition will simply cease to exist; minority groups may be
outlawed, constitutional democracy as intended by the Constitution may well
become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of
being in the majority or in the minority as the will of the electorate dictates, will lose
their constitutional protection. It is undeniable therefore, that the utmost scope
should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be accorded a
human personality but equally so for its assurance that the wishes of any group to
oppose whatever for the moment is the party in power and with the help of the
electorate to set up its own program of government would not be nullified or
frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political
and academic affiliations have a preferred position under the due process version
of the First Amendment. But the associational rights protected by the First
Amendment are in my view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion. In my view,
government can neither legislate with respect to nor probe the intimacies of
political, spiritual, or intellectual relationships in the myriad of lawful societies and
groups, whether popular or unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that there
could be an abridgment of the right to form associations or societies when their
purposes are "contrary to law". How should the limitation "for purposes not contrary
to law" be interpreted? It is submitted that it is another way of expressing the clear
and present danger rule for unless an association or society could be shown to
create an imminent danger to public safety, there is no justification for abridging the
right to form association societies.37 As was so aptly stated: "There is no other
course consistent with the Free Society envisioned by the First Amendment. For
the views a citizen entertains, the beliefs he harbors, the utterances he makes, the
ideology he embraces, and the people he associates with are no concern to
government until and unless he moves into action. That article of faith marks
indeed the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles in
mind, we now consider the validity of the prohibition in Republic Act No. 4880 of
the too early nomination of candidates and the limitation found therein on the
period of election campaign or partisan political activity alleged by petitioners to
offend against the rights of free speech, free press, freedom of assembly and
freedom of association. In effect what are asked to do is to declare the act void on
its face evidence having been introduced as to its actual operation. There is
respectable authority for the court having the power to so act. Such fundamental
liberties are accorded so high a place in our constitutional scheme that any alleged
infringement manifest in the wording of statute cannot be allowed to pass
unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot ignore of
course the legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of happening,
but actually in existence, and likely to continue unless curbed or remedied. To
assert otherwise would be to close one's eyes to the realities of the situation. Nor
can we ignore the express legislative purpose apparent in the proviso "that simple
expressions of opinion and thoughts concerning the election shall not be
considered as part of an election campaign," and in the other proviso "that nothing
herein stated shall be understood to prevent any person from expressing his views
on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the entire
provision restricting the period of an election campaign or partisan political activity.
The prohibition of too early nomination of candidates presents a question that is
not too formidable in character. According to the act: "It shall be unlawful for any
political party political committee, or political group to nominate candidates for any
elective public officio voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective public, office earlier
than ninety days immediately preceding an election." 40
The right of association is affected. Political parties have less freedom as to the
time during which they may nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is there infringement of
their freedom to assemble. They can do so, but not for such a purpose. We sustain
in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political activity"
calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is
unlawful for any person whether or not a voter or candidate, or for any group or
association of persons whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an election involving a
public office voted for at large and ninety days immediately preceding an election
for any other elective public office. The term 'candidate' refers to any person
aspiring for or seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate. The term 'election campaign' or 'partisan political
activity' refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional infirmity
of vagueness and may be stricken down. What other conclusion can there be
extending as it does to so wide and all-encompassing a front that what is valid,
being a legitimate exercise of press freedom as well as freedom of assembly,
becomes prohibited? That cannot be done; such an undesirable eventuality, this
Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory vagueness

may be applied to a statute having inhibiting effect on speech; a man may the less
be required to act at his peril here, because the free dissemination of ideas may be
the loser.41 Where the statutory provision then operates to inhibit the exercise of
individual freedom affirmatively protected by the Constitution, the imputation of
vagueness sufficient to invalidate the statute is inescapable. 42 The language of
Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are
vague and fluid ... may be as much of a trap for the innocent as the ancient laws of
Caligula." 43Nor is the reason difficult to discern: ."These freedoms are delicate and
vulnerable, as well as supremely precious in our society. The threat of sanctions
may deter their exercise almost as potently as the actual application of
sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that the
limitations thus imposed on the constitutional rights of free speech and press, of
assembly, and of association cut deeply, into their substance. This on the one
hand.
On the other, it cannot be denied either that evils substantial in character taint the
purity of the electoral process. There can be under the circumstances then no
outright condemnation of the statute. It could not be said to be unwarranted, much
less arbitrary. There is need for refraining from the outright assumption that the
constitutional infirmity is apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest character, remedies
much more drastic than what ordinarily would suffice would indeed be called for.
The justification alleged by the proponents of the measures weighs heavily with the
members of the Court, though in varying degrees, in the appraisal of the aforesaid
restrictions to which such precious freedoms are subjected. They are not unaware
of the clear and present danger that calls for measures that may bear heavily on
the exercise of the cherished rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit to the
allowable limitations on such constitutional rights. The clear and present danger
doctrine rightly viewed requires that not only should there be an occasion for the
imposition of such restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then to be faced. The
practices which the act identifies with "election campaign" or "partisan political
activity" must be such that they are free from the taint of being violative of free
speech, free press, freedom of assembly, and freedom of association. What
removes the sting from constitutional objection of vagueness is the enumeration of
the acts deemed included in the terms "election campaign" or "partisan political
activity."
They are: "(a) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate; (b) holding political
conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate or party;(c) making speeches,
announcements or commentaries or holding interviews for or against the election
or any party or candidate for public office; (d) publishing or distributing campaign
literature or materials; (e) directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any party; (f) giving, soliciting, or
receiving contributions for election campaign purposes, either directly or
indirectly." 45 As thus limited the objection that may be raised as to vagueness has
been minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the view
that no unconstitutional infringement exists insofar as the formation of organization,
associations, clubs, committees, or other groups of persons for the purpose of
soliciting votes or undertaking any campaign or propaganda or both for or against
a candidate or party is restricted 47 and that the prohibition against giving, soliciting,
or receiving contribution for election purposes, either directly or indirectly, is equally
free from constitutional infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes or undertaking any campaign or
propaganda or both for or against a candidate or party, 49 leaving untouched all
other legitimate exercise of such poses a more difficult question. Nevertheless,
after a thorough consideration, and with the same Justices entertaining the
opposite conviction, we reject the contention that it should be annulled. Candor
compels the admission that the writer of this opinion suffers from the gravest
doubts. For him, such statutory prescription could very well be within the outermost
limits of validity, beyond which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan

political activity" tax to the utmost the judicial predisposition to view with sympathy
legislative efforts to regulate election practices deemed inimical, because of their
collision with the preferred right of freedom of expression. From the outset, such
provisions did occasion divergence of views among the members of the Court.
Originally only a minority was for their being adjudged as invalid. It is not so. any
more. 50 This is merely to emphasize that the scope of the curtailment to which
freedom of expression may be subjected is not foreclosed by the recognition of the
existence of a clear and present danger of a substantive evil, the debasement of
the electoral process.
The majority of the Court is thus of the belief that the solicitation or undertaking of
any campaign or propaganda whether directly or indirectly, by an individual, 51 the
making of speeches, announcements or commentaries or holding interview for or
against the election for any party or candidate for public office, 52 or the publication
or distribution of campaign literature or materials, 53 suffer from the corrosion of
invalidity. It lacks however one more affirmative vote to call for a declaration of
unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns. The
direful consequences and the harmful effects on the public interest with the vital
affairs of the country sacrificed many a time to purely partisan pursuits were known
to all. Moreover, it is no exaggeration to state that violence and even death did
frequently occur because of the heat engendered by such political activities. Then,
too, the opportunity for dishonesty and corruption, with the right to suffrage being
bartered, was further magnified.
Under the police power then, with its concern for the general welfare and with the
commendable aim of safe-guarding the right of suffrage, the legislative body must
have felt impelled to impose the foregoing restrictions. It is understandable for
Congress to believe that without the limitations thus set forth in the challenged
legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and
nullified. Whatever persuasive force such approach may command failed to elicit
the assent of a majority of the Court. This is not to say that the conclusion reached
by the minority that the above poisons of the statute now assailed has passed the
constitutional test is devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against the
election of any party or candidate for public office and the prohibition of the
publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged statute
prohibits what under the Constitution cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that otherwise
could be justified under the clear and present danger doctrine, it is the
consideration opinion of the majority, though lacking the necessary vote for an
adjudication of invalidity, that the challenged statute could have been more
narrowly drawn and the practices prohibited more precisely delineated to satisfy
the constitutional requirements as to a valid limitation under the clear and present
danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the absence of
such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court
could discern "an over breadth that makes possible oppressive or capricious
application" 55 of the statutory provisions, the line dividing the valid from the
constitutionally infirm has been crossed. Such provisions offend the constitutional
principle that "a governmental purpose constitutionally subject to control or prevent
activities state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental purposes be
legitimate and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. 57 For
precision of regulation is the touchstone in an area so closely related to our most
precious freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to view the
statutory provisions in question as unconstitutional on their face inasmuch as they
appear to range too widely and indiscriminately across the fundamental liberties
associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court. For this
minority group, no judgment of nullity insofar as the challenged sections are
concerned is called for. It cannot accept the conclusion that the limitations thus
imposed on freedom of expression vitiated by their latitudinarian scope, for
Congress was not at all insensible to the problem that an all-encompassing
coverage of the practices sought to be restrained would seriously pose.
Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Taada, appearing before us as amicus curiae. He
did clearly explain that such provisions were deemed by the legislative body to be
part and parcel of the necessary and appropriate response not merely to a clear
and present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as violence that of late
has invariably marred election campaigns and partisan political activities in this
country. He did invite our attention likewise to the well-settled doctrine that in the
choice of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or disregarded.
More than that, he would stress the two provisos already mentioned, precisely
placed in the state as a manifestation of the undeniable legislative determination
not to transgress the preferred freedom of speech, of press, of assembly and of
association. It is thus provided: "That simple expressions or opinion and thoughts
concerning the election shall not be considered as part of an election campaign
[and that nothing in the Act] shall be understood to prevent any person from
expressing his views on current political problems or issues, or from mentioning
the names of the candidates for public office whom he supports. 60 If properly
implemented then, as it ought to, the barrier to free, expression becomes minimal
and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution commands as
far as freedom of the mind and of association are concerned. It is its opinion that it
would be premature to say the least, for a judgment of nullity of any provision
found in Republic Act No. 4880. The need for adjudication arises only if in the
implementation of the Act, there is in fact an unconstitutional application of its
provisions. Nor are we called upon, under this approach, to anticipate each and
every problem that may arise. It is time enough to consider it when there is in fact
an actual, concrete case that requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to cleanse,
and, if possible, render spotless, the electoral process. There is full acceptance by
the Court of the power of Congress, under narrowly drawn legislation to impose the
necessary restrictions to what otherwise would be liberties traditionally accorded
the widest scope and the utmost deference, freedom of speech and of the press, of
assembly, and of association. We cannot, however, be recreant to the trust
reposed on us; we are called upon to safeguard individual rights. In the language
of Justice Laurel: "This Court is perhaps the last bulwark of constitutional
government. It shall not obstruct the popular will as manifested through proper
organs... But, in the same way that it cannot renounce the life breathed into it by
the Constitution, so may it not forego its obligation, in proper cases, to apply the
necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital interests.
Considering the responsibility incumbent on the judiciary, it is not always possible,
even with the utmost sympathy shown for the legislative choice of means to cure
an admitted evil, that the legislative judgment arrived at, with its possible
curtailment of the preferred freedoms, be accepted uncritically. There may be
times, and this is one of them, with the majority, with all due reject to a coordinate
branch, unable to extend their approval to the aforesaid specific provisions of one
of the sections of the challenged statute. The necessary two-third vote, however,
not being obtained, there is no occasion for the power to annul statutes to come
into play.
Such being the case, it is the judgment of this Court that Republic Act No. 4880
cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without
costs.
- versus COURT OF APPEALS, PEOPLE

OF THE PHILIPPINES, and Promulgated:
CARLOS SO,
Respondents. September 16, 2008
ERWIN TULFO, G.R. No. 161032
Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
CARPIO MORALES,
VELASCO, JR.,
PEOPLE OF THE PHILIPPINES NACHURA,* and
and ATTY. CARLOS T. SO, BRION, JJ.
Respondents.
x-------------------------------------------x
SUSAN CAMBRI, REY SALAO, G.R. No. 161176
JOCELYN BARLIZO, and
PHILIP PICHAY,
Petitioners,
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The freedom of the press is one of the cherished hallmarks of our democracy; but
even as we strive to protect and respect the fourth estate, the freedom it enjoys
must be balanced with responsibility. There is a fine line between freedom of
expression and libel, and it falls on the courts to determine whether or not that line
has been crossed.
The Facts
On the complaint of Atty. Carlos "Ding" So of the Bureau of Customs, four (4)
separate informations were filed on September 8, 1999 with the Regional Trial
Court in (RTC) Pasay City. These were assigned to Branch 112 and docketed as
Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo, as
author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor,
Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo
Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in
connection with the publication of the articles in the column "Direct Hit" in the
issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.1 The
four informations read as follows:
Criminal Case No. 99-1598
That on or about the 11th day of May, 1999 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of
"REMATE", a tabloid published daily and of general circulation in the Philippines,
10
did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the
malicious intent of injuring and exposing said complainant to public hatred,
contempt and ridicule, write and publish in the regular issue of said publication on
May 11, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit:
"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence

Unit sa South Harbor.
Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga
importer na ayaw ideklara ang totoong laman ng mga container para makaiwas sa
pagbayad ng malaking customs duties at taxes.
PINAKAMAYAMAN SA CUSTOMS
Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic]
pinakamayaman na yata na government official sa buong bansa sa pangungurakot
lamang diyan sa South Harbor.
Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito.

Siyempre-binibigyan din niya ng salapi yung ibang mga ahensiya para pumikit na
lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang taga BOC.
Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.
Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga

kawatan tulad ni So.
Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at

magnanakaw na miyembro nito.
Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robberyhold-up gang para kumita ng mas mabilis.
Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan
mo.
Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang
pagiging buwayang naka korbata at holdaper. Magnanakaw ka So!!"
Abangan bukas ang mga raket ni So sa BOC.
WHEREIN said complainant was indicated as an extortionist, a corrupt public

official, smuggler and having illegally acquired wealth, all as already stated, with
the object of destroying his reputation, discrediting and ridiculing him before the
bar of public opinion.3

That on or about the 12th day of May, 1999 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of
"REMATE", a tabloid published daily and of general circulation in the Philippines,
did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the
malicious intent of injuring and exposing said complainant to public hatred,
contempt and ridicule, write and publish in the regular issue of said publication on
May 12, 1999, in daily column "DIRECT HIT", quoted hereunder, to wit:

That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, being
then the columnist, publisher and managing editor, respectively of "REMATE", a
tabloid published daily and of general circulation in the Philippines, did then and
there willfully, unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of
injuring and exposing said complainant to public hatred, contempt and ridicule,
write and publish in the regular issue of said publication on May 19, 1999, in daily
column "DIRECT HIT", quoted hereunder, to wit:
xxxx
SI ATTY. SO NG BOC
11
"Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din

ng lakas itong si Daniel Aquino ng Presidential Anti-Smuggling Unit na nakatalaga
sa South Harbor.
Tulad ni So, magnanakaw na tunay itong si Aquino.
On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and
Pichay were arraigned on December 15, 1999. They all pleaded not guilty to the
offenses charged.
Panghihingi ng pera sa mga brokers, ang lakad nito.

Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng
kanilang kargamento."
That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, being
then the columnist, publisher and managing editor, respectively of "REMATE", a
tabloid published daily and of general circulation in the Philippines, did then and
there willfully, unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS "DING" T. SO, and with the malicious intent
of injuring and exposing said complainant to public hatred, contempt and ridicule,
write and publish in the regular issue of said publication on June 25, 1999, its daily
column "DIRECT HIT", quoted hereunder, to wit:
xxxx
Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban
sa inyong lingkod at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong
tarantadong si Atty. So dahil binanatan ko siya at inexpose ang kagaguhan niya sa
BOC.
Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan.
Buhay ka pa sinusunog na ang iyong kaluluwa sa impyerno.
At pre-trial, the following were admitted by petitioners: (1) that during the four dates
of the publication of the questioned articles, the complaining witness was not
assigned at South Harbor; (2) that the accused and complaining witness did not
know each other during all the time material to the four dates of publication; (3) that
Remate is a newspaper/tabloid of general circulation in the Philippines; (4) the
existence and genuineness of the Remate newspaper; (5) the column therein and
its authorship and the alleged libelous statement as well as the editorial post
containing the designated positions of the other accused; and (6) the prosecutions
qualified admission that it is the duty of media persons to expose corruption.6
The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James
Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The prosecution presented
documentary evidence as well.
Ablan testified that he had read the four columns written by Tulfo, and that the
articles were untrue because he had known Atty. So since 1992 and had worked
with him in the Customs Intelligence and Investigation Service Division of the
Bureau of Customs. He further testified that upon reading the articles written by
Tulfo, he concluded that they referred to Atty. So because the subject articles
identified "Atty. Carlos" as "Atty. Ding So" of the Customs Intelligence and
Investigation Service Division, Bureau of Customs and there was only one Atty.
Carlos "Ding" So of the Bureau of Customs.7
Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a
certification in connection with these cases upon the request of Atty. So.8 This
certification stated that as per records available in her office, there was only one
employee by the name of "Atty. Carlos T. So" who was also known as "Atty. Ding
So" in the Intelligence Division of the Customs Intelligence and Investigation
Service or in the entire Bureau of Customs.9
Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni
Kristo and as a lawyer, and that having read the articles of Tulfo, he believed that
these were untrue, as he knew Atty. Carlos "Ding" So.10
Atty. So testified that he was the private complainant in these consolidated cases.
He further testified that he is also known as Atty. "Ding" So, that he had been
12
connected with the Bureau of Customs since October 1981, and that he was
assigned as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation
Service Division at the Manila International Container Port since December 27,
1999. He executed two complaint-affidavits, one dated June 4, 1999 and the other
dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he
also filed 14 cases of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He
testified that petitioner Tulfos act of imputing upon him criminality, assailing his
honesty and integrity, caused him dishonor, discredit, and contempt among his comembers in the legal profession, co-officers of the Armed Forces of the
Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and
employees and superior officers in the Bureau of Customs, and among ordinary
persons who had read said articles. He said it also caused him and his family
sleepless nights, mental anguish, wounded feelings, intrigues, and
embarrassment. He further testified that he included in his complaint for libel the
officers of Remate such as the publisher, managing editor, city editor, and national
editor because under Article 360 of the Revised Penal Code (RPC), they are
equally responsible and liable to the same extent as if they were the author of the
articles. He also testified that "Ding" is his nickname and that he is the only person
in the entire Bureau of Customs who goes by the name of Atty. Carlos T. So or Atty.
Carlos "Ding" So.11
are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and
Salao as national editor. She testified that petitioner Barlizo is her subordinate,
whose duties and responsibilities are the typesetting, editing, and layout of the
page assigned to her, the Metro page. She further testified that she had no
participation in the writing, editing, or publication of the column of Tulfo because
the column was not edited. She claimed that none among her co-accused from the
Remate newspaper edited the columns of Tulfo, that the publication and editing of
the subject articles were the responsibility of Tulfo, and that he was given blanket
authority to write what he wanted to write. She also testified that the page wherein
Tulfos column appeared was supervised by Bueno as news editor.14
In his defense, petitioner Tulfo testified that he did not write the subject articles with
malice, that he neither knew Atty. So nor met him before the publication of the
articles. He testified that his criticism of a certain Atty. So of the South Harbor was
not directed against the complainant, but against a person by the name of Atty.
"Ding" So at the South Harbor. Tulfo claimed that it was the practice of certain
people to use other peoples names to advance their corrupt practices. He also
claimed that his articles had neither discredited nor dishonored the complainant
because as per his source in the Bureau of Customs, Atty. So had been promoted.
He further testified that he did not do any research on Atty. So before the subject
articles, because as a columnist, he had to rely on his source, and that he had
several sources in the Bureau of Customs, particularly in the South Harbor.12
In a Decision dated November 17, 2000, the RTC found petitioners guilty of the
crime of Libel. The dispositive portion reads as follows:
Petitioner Salao testified that he came to know Atty. Carlos "Ding" So when the
latter filed a case against them. He testified that he is an employee of Carlo
Publishing House, Inc.; that he was designated as the national editor of the
newspaper Remate since December 1999; that the duties of the position are to
edit, evaluate, encode, and supervise layout of the news from the provinces; and
that Tulfo was under the supervision of Rey Briones, Vice President for Editorial
and Head of the Editorial Division. Salao further testified that he had no
participation in the subject articles of Tulfo, nor had he anything to do with the
latters column.13
Petitioner Cambri, managing editor of Remate, testified that she classifies the
news articles written by the reporters, and that in the Editorial Division, the officers
Petitioner Pichay testified that he had been the president of Carlo Publishing
House, Inc. since December 1998. He testified that the company practice was to
have the columnists report directly to the vice-president of editorials, that the
columnists were given autonomy on their columns, and that the vice-president for
editorials is the one who would decide what articles are to be published and what
are not. He further testified that Tulfo was already a regular contributor.15
The Ruling of the RTC
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI,
REY SALAO, JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable
doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the
Revised Penal Code, and penalized by prision correccional in its minimum and
medium periods, or a fine ranging from P200.00 Pesos to P6,000.00 Pesos or
both, under Article 355 of the same Code.
Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of
the accused to suffer imprisonment of SIX (6) MONTHS of arresto mayor, as
minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as
maximum, for EACH count with accessory penalties provided by law.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn
Barlizo and Philip Pichay wrote and published the four (4) defamatory articles with
reckless disregard, being, in the mind of the Court, of whether it was false or not,
the said articles libelous per se, they are hereby ordered to pay, jointly and
severally, the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS, as
actual damages, the sum of ONE MILLION PESOS (P1,000,000.00), as moral
damages, and an additional amount of FIVE HUNDRED THOUSAND PESOS
(P500,000.00), by way of exemplary damages, all with subsidiary imprisonment, in
case of insolvency, and to pay the costs.
13
SO ORDERED.16
The Ruling of the Court of Appeals
dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a
motion for reconsideration dated July 2, 2003. In a Resolution dated December 11,
2003, both motions were denied for lack of merit.20
Before the Court of Appeals (CA), Tulfo assigned the following errors:
Petitions for Review on Certiorari under Rule 45
1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY

OF THE APPELLANT THAT HE DID NOT CRITICIZE THE PRIVATE
COMPLAINANT WORKING AT THE NAIA. HE CRITICIZED ANOTHER PERSON
WORKING AT THE SOUTH HARBOR. HENCE, THE ELEMENT OF IDENTITY IS
LACKING.
Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the
Decision of the CA in CA-G.R. CR No. 25318 which affirmed the decision of the
RTC. Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition
docketed as G.R. No. 161176, seeking the nullification of the same CA decision.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL

ELEMENT OF DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY.
CARLOS "DING" SO.17
In a Resolution dated March 15, 2004, the two cases were consolidated since both
cases arise from the same set of facts, involve the same parties, assail the same
decision of the CA, and seek identical reliefs.21
Assignment of Errors
Petitioner Tulfo submitted the following assignment of errors:
His co-accused assigned the following errors:

I
A
The trial court seriously erred in holding accused Susan Cambri, Rey Salao,
Jocelyn Barlizo and Philip Pichay liable for the defamations contained in the
questioned articles despite the fact that the trial court did not have any finding as to
their participation in the writing, editing and/or publication of the questioned
articles.
B
The trial court seriously erred in concluding that libel was committed by all of the
accused on the basis of its finding that the elements of libel have been
satisfactorily established by evidence on record.
C
The trial court seriously erred in considering complainant to be the one referred to
by Erwin Tulfo in his articles in question.18
In a Decision19 dated June 17, 2003, the Eighth Division of the CA dismissed the
appeal and affirmed the judgment of the trial court. A motion for reconsideration
Assuming that the Prosecution presented credible and relevant evidence, the
Honorable CA erred in not declaring the assailed articles as privileged; the CA
erred in concluding that malice in law exists by the courts having incorrectly
reasoned out that malice was presumed in the instant case.
II
Even assuming arguendo that the articles complained of are not privileged, the
lower court, nonetheless, committed gross error as defined by the provisions of
Section 6 of Rule 45 by its misappreciation of the evidence presented on matters
substantial and material to the guilt or innocence of the petitioner.22
Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of
errors, as follows:
A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The
Revised Penal Code By Holding Cambri, Salao And Barlizo Liable For The
Defamatory Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate
Simply Because They Were Managing Editor, National Editor And City Editor
Respectively Of Remate And By Holding Pichay Also Liable For Libel Merely
Because He Was The President Of Carlo Publishing House, Inc. Without Taking
14
Into Account The Unrebutted Evidence That Petitioners Had No Participation In

The Editing Or Publication Of The Defamatory Articles In Question.
B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly
Disregarding The Unrebutted Evidence That Petitioners Had No Participation In
The Editing Or Publication Of The Defamatory Articles In Question.
the subject articles are privileged communications must first be established by the
defense, which it failed to do at the level of the RTC and the CA. Even so, it shall
be dealt with now, considering that an appeal in a criminal proceeding throws the
whole case open for review.
Our Ruling
There is no question of the status of Atty. So as a public official, who served as the
OIC of the Bureau of Customs Intelligence and Investigation Service at the Ninoy
Aquino International Airport (NAIA) at the time of the printing of the allegedly
libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of
Customs, a government agency, are matters of public interest. It is now a matter of
establishing whether the articles of Tulfo are protected as qualified privileged
communication or are defamatory and written with malice, for which he would be
liable.
The petitions must be dismissed.
Freedom of the Press v. Responsibility of the Press
The assignment of errors of petitioner Tulfo shall be discussed first.
The Court has long respected the freedom of the press, and upheld the same
when it came to commentaries made on public figures and matters of public
interest. Even in cases wherein the freedom of the press was given greater weight
over the rights of individuals, the Court, however, has stressed that such freedom
is not absolute and unbounded. The exercise of this right or any right enshrined in
the Bill of Rights, indeed, comes with an equal burden of responsible exercise of
that right. The recognition of a right is not free license for the one claiming it to run
roughshod over the rights of others.
C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That

The Person Referred To In The Published Articles Was Private Complainant Atty.
Carlos So.23
In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v.
Court of Appeals.24 In essence, he argues that the subject articles fall under
"qualifiedly privileged communication" under Borjal and that the presumption of
malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the
prosecution to prove malice in fact.
This case must be distinguished from Borjal on several points, the first being that
Borjal stemmed from a civil action for damages based on libel, and was not a
criminal case. Second, the ruling in Borjal was that there was no sufficient
identification of the complainant, which shall be differentiated from the present
case in discussing the second assignment of error of Tulfo. Third, the subject in
Borjal was a private citizen, whereas in the present case, the subject is a public
official. Finally, it was held in Borjal that the articles written by Art Borjal were "fair
commentaries on matters of public interest."25 It shall be discussed and has yet to
be determined whether or not the articles fall under the category of "fair
commentaries."
In passing, it must be noted that the defense of Tulfos articles being qualifiedly
privileged communication is raised for the first time in the present petition, and this
particular issue was never brought before either the RTC or the CA. Thus, neither
the RTC nor the CA had a chance to properly consider and evaluate this defense.
Tulfo now draws parallels between his case and that of Art Borjal, and argues that
the prosecution should have proved malice in fact, and it was error on the part of
the trial and appellate courts to use the presumption of malice in law in Art. 354 of
the RPC. This lays an unusual burden on the part of the prosecution, the RTC, and
the CA to refute a defense that Tulfo had never raised before them. Whether or not
The Journalists Code of Ethics adopted by the National Union of Journalists of the
Philippines shows that the press recognizes that it has standards to follow in the
exercise of press freedom; that this freedom carries duties and responsibilities. Art.
I of said code states that journalists "recognize the duty to air the other side and
the duty to correct substantive errors promptly." Art. VIII states that journalists
"shall presume persons accused of crime of being innocent until proven
otherwise."
In the present case, it cannot be said that Tulfo followed the Journalists Code of
Ethics and exercised his journalistic freedom responsibly.
In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs
as being involved in criminal activities, and was using his public position for
personal gain. He went even further than that, and called Atty. So an
embarrassment to his religion, saying "ikaw na yata ang pinakagago at
magnanakaw sa miyembro nito."26 He accused Atty. So of stealing from the
government with his alleged corrupt activities.27 And when Atty. So filed a libel suit
against him, Tulfo wrote another article, challenging Atty. So, saying, "Nagalit itong
15
tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan

niya sa [Bureau of Customs]."28
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had
neither met nor known him prior to the publication of the subject articles. He also
admitted that he did not conduct a more in-depth research of his allegations before
he published them, and relied only on his source at the Bureau of Customs.
In his defense before the trial court, Tulfo claimed knowledge of people using the
names of others for personal gain, and even stated that he had been the victim of
such a practice. He argued then that it may have been someone else using the
name of Atty. So for corrupt practices at the South Harbor, and this person was the
target of his articles. This argument weakens his case further, for even with the
knowledge that he may be in error, even knowing of the possibility that someone
else may have used Atty. Sos name, as Tulfo surmised, he made no effort to verify
the information given by his source or even to ascertain the identity of the person
he was accusing.
The trial court found Tulfos accusations against Atty. So to be false, but Tulfo
argues that the falsity of contents of articles does not affect their privileged
character. It may be that the falsity of the articles does not prove malice. Neither
did Borjal give journalists carte blanche with regard to their publications. It cannot
be said that a false article accusing a public figure would always be covered by the
mantle of qualified privileged communication. The portion of Borjal cited by Tulfo
must be scrutinized further:
Even assuming that the contents of the articles are false, mere error, inaccuracy or
even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There
must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively
function as critical agencies in our democracy. In Bulletin Publishing Corp. v.
Noel we held
A newspaper especially one national in reach and coverage, should be free to
report on events and developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or another on criminal or
civil charges for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.
to allow an adequate margin of error by protecting some inaccuracies. It is for the

same reason that the New York Times doctrinerequires that liability for defamation
of a public official or public figure may not be imposed in the absence of proof of
"actual malice" on the part of the person making the libelous
statement.29 (Emphasis supplied.)
Reading more deeply into the case, the exercise of press freedom must be done
"consistent with good faith and reasonable care." This was clearly abandoned by
Tulfo when he wrote the subject articles. This is no case of mere error or honest
mistake, but a case of a journalist abdicating his responsibility to verify his story
and instead misinforming the public. Journalists may be allowed an adequate
margin of error in the exercise of their profession, but this margin does not expand
to cover every defamatory or injurious statement they may make in the furtherance
of their profession, nor does this margin cover total abandonment of responsibility.
Borjal may have expanded the protection of qualified privileged communication
beyond the instances given in Art. 354 of the RPC, but this expansion does not
cover Tulfo. The addition to the instances of qualified privileged communications is
reproduced as follows:
To reiterate, fair commentaries on matters of public interest are privileged and
constitute a valid defense in an action for libel or slander. The doctrine of fair
comment means that while in general every discreditable imputation publicly made
is deemed false, because every man is presumed innocent until his guilt is
judicially proved, and every false imputation is deemed malicious, nevertheless,
when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation
to a public official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition. If the comment is an expression of opinion,
based on established facts, then it is immaterial that the opinion happens to be
mistaken, as long as it might reasonably be inferred from the facts.30 (Emphasis
supplied.)
The expansion speaks of "fair commentaries on matters of public interest." While
Borjal places fair commentaries within the scope of qualified privileged
communication, the mere fact that the subject of the article is a public figure or a
matter of public interest does not automatically exclude the author from liability.
Borjal allows that for a discreditable imputation to a public official to be actionable,
it must be a false allegation of fact or a comment based on a false supposition. As
previously mentioned, the trial court found that the allegations against Atty. So
were false and that Tulfo did not exert effort to verify the information before
publishing his articles.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required
16
Tulfo offered no proof for his accusations. He claimed to have a source in the
Bureau of Customs and relied only on this source for his columns, but did no
further research on his story. The records of the case are bereft of any showing
that Atty. So was indeed the villain Tulfo pictured him to be. Tulfos articles related
no specific details or acts committed to prove Atty. So was indeed a corrupt public
official. These columns were unsubstantiated attacks on Atty. So, and cannot be
countenanced as being privileged simply because the target was a public official.
Although wider latitude is given to defamatory utterances against public officials in
connection with or relevant to their performance of official duties, or against public
officials in relation to matters of public interest involving them, such defamatory
utterances do not automatically fall within the ambit of constitutionally protected
speech.31 Journalists still bear the burden of writing responsibly when practicing
their profession, even when writing about public figures or matters of public
interest. As held in In Re: Emil P. Jurado:
Clearly, the public interest involved in freedom of speech and the individual interest
of judges (and for that matter, all other public officials) in the maintenance of
private honor and reputation need to be accommodated one to the other. And the
point of adjustment or accommodation between these two legitimate interests is
precisely found in the norm which requires those who, invoking freedom of speech,
publish statements which are clearly defamatory to identifiable judges or other
public officials to exercise bona fide care in ascertaining the truth of the statements
they publish. The norm does not require that a journalist guarantee the truth of
what he says or publishes. But the norm does prohibit the reckless disregard of
private reputation by publishing or circulating defamatory statements without any
bona fide effort to ascertain the truth thereof. That this norm represents the
generally accepted point of balance or adjustment between the two interests
involved is clear from a consideration of both the pertinent civil law norms and the
Code of Ethics adopted by the journalism profession in the Philippines.33
Surely it cannot be postulated that the law protects a journalist who deliberately
prints lies or distorts the truth; or that a newsman may ecape liability who publishes
derogatory or defamatory allegations against a person or entity, but recognizes no
obligation bona fide to establish beforehand the factual basis of such imputations
and refuses to submit proof thereof when challenged to do so. It outrages all
notions of fair play and due process, and reduces to uselessness all the injunctions
of the Journalists Code of Ethics to allow a newsman, with all the potential of his
profession to influence popular belief and shape public opinion, to make shameful
and offensive charges destructive of personal or institutional honor and repute, and
when called upon to justify the same, cavalierly beg off by claiming that to do so
would compromise his sources and demanding acceptance of his word for the
reliability of those sources.32
Tulfo has clearly failed in this regard. His articles cannot even be considered as
qualified privileged communication under the second paragraph of Art. 354 of the
RPC which exempts from the presumption of malice "a fair and true report, made
in good faith, without any comments or remarks, of any judicial, legislative, or other
official proceedings which are not of confidential nature, or any statement, report,
or speech delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions." This particular provision has several
elements which must be present in order for the report to be exempt from the
presumption of malice. The provision can be dissected as follows:
The prosecution showed that Tulfo could present no proof of his allegations against
Atty. So, only citing his one unnamed source. It is not demanded of him that he
name his source. The confidentiality of sources and their importance to journalists
are accepted and respected. What cannot be accepted are journalists making no
efforts to verify the information given by a source, and using that unverified
information to throw wild accusations and besmirch the name of possibly an
innocent person. Journalists have a responsibility to report the truth, and in doing
so must at least investigate their stories before publication, and be able to back up
their stories with proof. The rumors and gossips spread by unnamed sources are
not truth. Journalists are not storytellers or novelists who may just spin tales out of
fevered imaginings, and pass them off as reality. There must be some foundation
to their reports; these reports must be warranted by facts.
(a) That it is a fair and true report of a judicial, legislative, or other official
proceedings which are not of confidential nature, or of a statement, report or
speech delivered in said proceedings, or of any other act performed by a public
officer in the exercise of his functions;
Jurado also established that the journalist should exercise some degree of care
even when writing about public officials. The case stated:
In order that the publication of a report of an official proceeding may be considered

privileged, the following conditions must exist:
(b) That it is made in good faith; and

(c) That it is without any comments or remarks.34
The articles clearly are not the fair and true reports contemplated by the provision.
They provide no details of the acts committed by the subject, Atty. So. They are
plain and simple baseless accusations, backed up by the word of one unnamed
source. Good faith is lacking, as Tulfo failed to substantiate or even attempt to
verify his story before publication. Tulfo goes even further to attack the character of
the subject, Atty. So, even calling him a disgrace to his religion and the legal
profession. As none of the elements of the second paragraph of Art. 354 of the
17
RPC is present in Tulfos articles, it cannot thus be argued that they are qualified
privileged communications under the RPC.
Breaking down the provision further, looking at the terms "fair" and "true," Tulfos
articles do not meet the standard. "Fair" is defined as "having the qualities of
impartiality and honesty."35 "True" is defined as "conformable to fact; correct; exact;
actual; genuine; honest."36 Tulfo failed to satisfy these requirements, as he did not
do research before making his allegations, and it has been shown that these
allegations were baseless. The articles are not "fair and true reports," but merely
wild accusations.
Even assuming arguendo that the subject articles are covered by the shield of
qualified privileged communication, this would still not protect Tulfo.
In claiming that his articles were covered by qualified privileged communication,
Tulfo argues that the presumption of malice in law under Art. 354 of the RPC is no
longer present, placing upon the prosecution the burden of proving malice in fact.
He then argues that for him to be liable, there should have been evidence that he
was motivated by ill will or spite in writing the subject articles.
The test to be followed is that laid down in New York Times Co. v. Sullivan, 37 and
reiterated in Flor v. People, which should be to determine whether the defamatory
statement was made with actual malice, that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.38
The trial court found that Tulfo had in fact written and published the subject articles
with reckless disregard of whether the same were false or not, as proven by the
prosecution. There was the finding that Tulfo failed to verify the information on
which he based his writings, and that the defense presented no evidence to show
that the accusations against Atty. So were true. Tulfo cannot argue that because he
did not know the subject, Atty. So, personally, there was no malice attendant in his
articles. The test laid down is the "reckless disregard" test, and Tulfo has failed to
meet that test.
Leaving the discussion of qualified privileged communication, Tulfo also argues

that the lower court misappreciated the evidence presented as to the identity of the
complainant: that Tulfo wrote about Atty. "Ding" So, an official of the Bureau of
Customs who worked at the South Harbor, whereas the complainant was Atty.
Carlos So who worked at the NAIA. He claims that there has arisen a cloud of
doubt as to the identity of the real party referred to in the articles.
This argument is patently without merit.
The prosecution was able to present the testimonies of two other witnesses who
identified Atty. So from Tulfos articles. There is the certification that there is only
one Atty. So in the Bureau of Customs. And most damning to Tulfos case is the
last column he wrote on the matter, referring to the libel suit against him by Atty. So
of the Bureau of Customs. In this article, Tulfo launched further attacks against
Atty. So, stating that the libel case was due to the exposs Tulfo had written on the
corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an
admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He
cannot now point to a putative "Atty. Ding So" at South Harbor, or someone else
using the name of Atty. So as the real subject of his attacks, when he did not
investigate the existence or non-existence of an Atty. So at South Harbor, nor
investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo
cannot say that there is doubt as to the identity of the Atty. So referred to in his
articles, when all the evidence points to one Atty. So, the complainant in the
present case.
Having discussed the issue of qualified privileged communication and the matter of
the identity of the person referred to in the subject articles, there remains the
petition of the editors and president of Remate, the paper on which the subject
articles appeared.
In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no
participation in the editing or writing of the subject articles, and are thus not liable.
The argument must fail.
The fact that Tulfo published another article lambasting respondent Atty. So can be
considered as further evidence of malice, as held in U.S. vs. Montalvo,39 wherein
publication after the commencement of an action was taken as further evidence of
a malicious design to injure the victim. Tulfo did not relent nor did he pause to
consider his actions, but went on to continue defaming respondent Atty. So. This is
a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of
malice.
The language of Art. 360 of the RPC is plain. It lists the persons responsible for
libel:
Art. 360. Persons responsible.Any person who shall publish, exhibit, or cause
the publication or exhibition of any defamation in writing or by similar means, shall
be responsible for the same.
18
The author or editor of a book or pamphlet, or the editor or business manager of a

daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author thereof.
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep.,
629), the question of the responsibility of the manager or proprietor of a newspaper
was discussed. The court said, among other things (pp. 782, 783):
The claim that they had no participation does not shield them from liability. The
provision in the RPC does not provide absence of participation as a defense, but
rather plainly and specifically states the responsibility of those involved in
publishing newspapers and other periodicals. It is not a matter of whether or not
they conspired in preparing and publishing the subject articles, because the law
simply so states that they are liable as they were the author.
"The question then recurs as to whether the manager or proprietor of a newspaper

can escape criminal responsibility solely on the ground that the libelous article was
published without his knowledge or consent. When a libel is published in a
newspaper, such fact alone is sufficient evidence prima facie to charge the
manager or proprietor with the guilt of its publication.
Neither the publisher nor the editors can disclaim liability for libelous articles that
appear on their paper by simply saying they had no participation in the preparation
of the same. They cannot say that Tulfo was all alone in the publication of Remate,
on which the subject articles appeared, when they themselves clearly hold
positions of authority in the newspaper, or in the case of Pichay, as the president in
the publishing company.
As Tulfo cannot simply say that he is not liable because he did not fulfill his
responsibility as a journalist, the other petitioners cannot simply say that they are
not liable because they did not fulfill their responsibilities as editors and publishers.
An editor or manager of a newspaper, who has active charge and control of its
management, conduct, and policy, generally is held to be equally liable with the
owner for the publication therein of a libelous article.40 On the theory that it is the
duty of the editor or manager to know and control the contents of the paper,41 it is
held that said person cannot evade responsibility by abandoning the duties to
employees,42 so that it is immaterial whether or not the editor or manager knew the
contents of the publication.43 In Fermin v. People of the Philippines,44 the Court
held that the publisher could not escape liability by claiming lack of participation in
the preparation and publication of a libelous article. The Court cited U.S. v.
Ocampo, stating the rationale for holding the persons enumerated in Art. 360 of the
RPC criminally liable, and it is worth reiterating:
According to the legal doctrines and jurisprudence of the United States, the printer
of a publication containing libelous matter is liable for the same by reason of his
direct connection therewith and his cognizance of the contents thereof. With regard
to a publication in which a libel is printed, not only is the publisher but also all other
persons who in any way participate in or have any connection with its publication
are liable as publishers.
xxxx
"The manager and proprietor of a newspaper, we think ought to be held prima facie
criminally for whatever appears in his paper; and it should be no defense that the
publication was made without his knowledge or consent, x x x.
"One who furnishes the means for carrying on the publication of a newspaper and
entrusts its management to servants or employees whom he selects and controls
may be said to cause to be published what actually appears, and should be held
responsible therefore, whether he was individually concerned in the publication or
not, x x x. Criminal responsibility for the acts of an agent or servant in the course of
his employment necessarily implies some degree of guilt or delinquency on the
part of the publisher; x x x.
"We think, therefore, the mere fact that the libelous article was published in the
newspaper without the knowledge or consent of its proprietor or manager is no
defense to a criminal prosecution against such proprietor or manager."
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question
was considered and the court held that in the criminal prosecution of a publisher of
a newspaper in which a libel appears, he is prima facie presumed to have
published the libel, and that the exclusion of an offer by the defendant to prove that
he never saw the libel and was not aware of its publication until it was pointed out
to him and that an apology and retraction were afterwards published in the same
paper, gave him no ground for exception. In this same case, Mr. Justice Colt,
speaking for the court, said:
"It is the duty of the proprietor of a public paper, which may be used for the
publication of improper communications, to use reasonable caution in the conduct
of his business that no libels be published." (Whartons Criminal Law, secs. 1627,
1649; 1 Bishops Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195;
Commonwealth vs. Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the English courts. In the
case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was "clearly of the
19
opinion that the proprietor of a newspaper was answerable criminally as well as

civilly for the acts of his servants or agents for misconduct in the management of
the paper."
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander, said:
"An information for libel will lie against the publisher of a papers, although he did
not know of its being put into the paper and stopped the sale as soon as he
discovered it."
In the case of People vs. Clay (86 Ill., 147) the court held that
"A person who makes a defamatory statement to the agent of a newspaper for
publication, is liable both civilly and criminally, and his liability is shared by the
agent and all others who aid in publishing it."45
Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been
found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.
Though we find petitioners guilty of the crime charged, the punishment must still be
tempered with justice. Petitioners are to be punished for libel for the first time. They
did not apply for probation to avoid service of sentence possibly in the belief that
they have not committed any crime. In Buatis, Jr. v. People,46 the Court, in a
criminal case for libel, removed the penalty of imprisonment and instead imposed a
fine as penalty. In Sazon v. Court of Appeals,47 the accused was merely fined in
lieu of the original penalty of imprisonment and fine. Freedom of expression as well
as freedom of the press may not be unrestrained, but neither must it be reined in
too harshly. In light of this, considering the necessity of a free press balanced with
the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each
count of libel, with subsidiary imprisonment in case of insolvency, should
suffice.48 Lastly, the responsibilities of the members of the press notwithstanding,
the difficulties and hazards they encounter in their line of work must also be taken
into consideration.
The award of damages by the lower court must be modified. Art. 2199 of the Civil
Code provides, "Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory
damages." There was no showing of any pecuniary loss suffered by the
complainant Atty. So. Without proof of actual loss that can be measured, the award
of actual damages cannot stand.
In Del Mundo v. Court of Appeals, it was held, as regards actual and moral
damages:
A party is entitled to an adequate compensation for such pecuniary loss actually
suffered by him as he has duly proved. Such damages, to be recoverable, must
not only be capable of proof, but must actually be proved with a reasonable degree
of certainty. We have emphasized that these damages cannot be presumed, and
courts, in making an award must point out specific facts which could afford a basis
for measuring whatever compensatory or actual damages are borne.
Moral damages, upon the other hand, may be awarded to compensate one for
manifold injuries such as physical suffering, mental anguish, serious anxiety,
besmirched reputation, wounded feelings and social humiliation. These damages
must be understood to be in the concept of grants, not punitive or corrective in
nature, calculated to compensate the claimant for the injury suffered. Although
incapable of exactness and no proof of pecuniary loss is necessary in order that
moral damages may be awarded, the amount of indemnity being left to the sound
discretion of the court, it is imperative, nevertheless, that (1) injury must have been
suffered by the claimant, and (2) such injury must have sprung from any of the
cases expressed in Article 2219 and Article 2220 of the Civil Code. A causal
relation, in fine, must exist between the act or omission referred to in the Code
which underlies, or gives rise to, the case or proceeding on the one hand, and the
resulting injury, on the other hand; i.e. the first must be the proximate cause and
the latter the direct consequence thereof.49
It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So
deserves the award of moral damages. Justification for the award of moral
damages is found in Art. 2219(7) of the Civil Code, which states that moral
damages may be recovered in cases of libel, slander, or any other form of
defamation. As the cases involved are criminal cases of libel, they fall squarely
within the ambit of Art. 2219(7).
Moral damages can be awarded even in the absence of actual or compensatory
damages. The fact that no actual or compensatory damage was proven before the
trial court does not adversely affect the offended partys right to recover moral
damages.50
And while on the subject of moral damages, it may not be amiss to state at this
juncture that Tulfos libelous articles are abhorrent not only because of its vilifying
and demeaning effect on Atty. So himself, but also because of their impact on
members of his family, especially on the children and possibly even the childrens
children.
20
The Court can perhaps take judicial notice that the sense of kinship runs deeply in
a typical Filipino family, such that the whole family usually suffers or rejoices at the
misfortune or good fortune, as the case may be, of any of its member. Accordingly,
any attempt to dishonor or besmirch the name and reputation of the head of the
family, as here, invariably puts the other members in a state of disrepute, distress,
or anxiety. This reality adds an imperative dimension to the award of moral
damages to the defamed party.
The award of exemplary damages, however, cannot be justified. Under Art. 2230 of
the Civil Code, "In criminal offenses, exemplary damages as a part of the civil
liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party." No aggravating circumstances
accompanied the commission of the libelous acts; thus, no exemplary damages
can be awarded.
Conclusion
The press wields enormous power. Through its widespread reach and the
information it imparts, it can mold and shape thoughts and opinions of the people.
It can turn the tide of public opinion for or against someone, it can build up heroes
or create villains.
It is in the interest of society to have a free press, to have liberal discussion and
dissemination of ideas, and to encourage people to engage in healthy debate. It is
through this that society can progress and develop.
Those who would publish under the aegis of freedom of the press must also
acknowledge the corollary duty to publish responsibly. To show that they have
exercised their freedom responsibly, they must go beyond merely relying on
unfounded rumors or shadowy anonymous sources. There must be further
investigation conducted, some shred of proof found to support allegations of
misconduct or even criminal activity. It is in fact too easy for journalists to destroy
the reputation and honor of public officials, if they are not required to make the
slightest effort to verify their accusations. Journalists are supposed to be reporters
of facts, not fiction, and must be able to back up their stories with solid research.
The power of the press and the corresponding duty to exercise that power
judiciously cannot be understated.
But even with the need for a free press, the necessity that it be free does not mean
that it be totally unfettered. It is still acknowledged that the freedom can be abused,
and for the abuse of the freedom, there must be a corresponding sanction. It falls
on the press to wield such enormous power responsibly. It may be a clich that the
pen is mightier than the sword, but in this particular case, the lesson to be learned
is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but
always guided by conscience and careful thought.
A robust and independently free press is doubtless one of the most effective
checks on government power and abuses. Hence, it behooves government
functionaries to respect the value of openness and refrain from concealing from
media corruption and other anomalous practices occurring within their backyard.
On the other hand, public officials also deserve respect and protection against
false innuendoes and unfounded accusation of official wrongdoing from an abusive
press. As it were, the law and jurisprudence on libel heavily tilt in favor of press
freedom. The common but most unkind perception is that government institutions
and their officers and employees are fair game to official and personal attacks and
even ridicule. And the practice on the ground is just as disconcerting. Reports and
accusation of official misconduct often times merit front page or primetime
treatment, while defenses set up, retraction issued, or acquittal rendered get no
more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm
of clear conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government impasse is the
fact that a maliciously false imputation of corruption and dishonesty against a
public official, as here, leaves a stigmatizing mark not only on the person but also
the office to which he belongs. In the ultimate analysis, public service also unduly
suffers.
WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and
161176 are DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R. CR
No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of
imprisonment, the penalty to be imposed upon petitioners shall be a fine of six
thousand pesos (PhP 6,000) for each count of libel, with subsidiary imprisonment
in case of insolvency, while the award of actual damages and exemplary damages
is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in
Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as
follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI,
REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond reasonable
doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the
Revised Penal Code, and sentences EACH of the accused to pay a fine of SIX
THOUSAND PESOS (PhP 6,000) per count of libel with subsidiary imprisonment,
in case of insolvency.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn
Barlizo, and Philip Pichay wrote and published the four (4) defamatory articles with
reckless disregard whether it was false or not, the said articles being libelous per
21
se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and
severally, the sum of ONE MILLION PESOS (PhP 1,000,000) as moral damages.
The claim of actual and exemplary damages is denied for lack of merit.
Costs against petitioners.
SO ORDERED.
August 8, 1955
G.R. No. L-7491
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GO PIN, defendant-appellant.
J. Perez Cardenas and Castao and Ampil for defendant.
Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A.
Avancea for appellee.
MONTEMAYOR, J.:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201
of the Revised Penal Code for having exhibited in the City of Manila at the Globe
Arcade, a recreation center, a large number of one-real 16-millimeter films about
100 feet in length each, which are allegedly indecent and/or immoral. At first, he
pleaded not guilty of the information but later was allowed by the court to change
his plea to that of guilty which he did. Not content with the plea of guilty the trial
court had the films in question projected and were viewed by it in order to evaluate
the same from the standpoint of decency and morality. Thereafter, and considering
the plea of guilty entered by the accused, and the fact that after viewing the films
the trial court noted only a slight degree of obscenity, indecency and immorality in
them, it sentenced the appellant to 6 months and 1 day of prision
correcciconal and to pay a fine of P300, with subsidiary imprisonment in case of
insolvency, and to pay the costs. He is now appealing from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances
surrounding the case, particularly the slight degree of obscenity, indecency and
immorality noted by the court in the films, the prison sentence should be eliminated
from the penalty imposed. His counsel brings to our attention some authorities to
the effect that paintings and pictures of women in the nude, including sculptures of
that kind are not offensive because they are made and presented for the sake of
art. We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been the
main, if not the exclusive consideration in their exhibition; and it would not be
surprising if the persons who went to see those pictures and paid entrance fees for
the privilege of doing so, were not exactly artists and persons interested in art and
who generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes, but rather people desirous of satisfying their morbid curiosity and taste, and
lust, and for love for excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this
recommendation and said official recommendation that "considering that the
accused Go Pin is an alien who is supposed to maintain a high degree of morality
while he is in the Philippines", and "considering that he engaged in a very
nefarious trade, which degenerates the moral character of our youth, who are
usually the regular customers of his trade", he recommended that appellant be
sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this
recommendation, the trial court as already said, probably considering its opinion
that the pictures were not so obscene, indecent and immoral but only slightly so,
gave appellant only 6 months and 1 day of prision correccional in addition to P300
fine.
22
The penalty imposed by the trial court is within the range provided by Article 201 of
the Revised Code. We are satisfied that in imposing the penalty the trial court
made use of its sound discretion, and we find no reason for modifying the said
sentence. The Solicitor General in his brief even urges that we recommend to the
proper authorities that deportation proceedings be instituted against appellant as
an undesirable alien. The trial court could have done this but did not do so,
believing perhaps that it was warranted. We repeat that we do not feel justified in
interfering with the discretion of the trial court in the imposition of the sentence in
this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
23
CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.
FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a
campaig manager of the Coalesced Minority Parties against Valeraino Fugoso, as
Mayor of the City of Manila, to compel the latter to issue a permit for the holding of
a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947, for
the purpose of petitioning the government for redress to grievances on the groun
that the respondent refused to grant such permit. Due to urgency of the case, this
Court, after mature deliberation, issued a writ of mandamus, as prayed for in the
petition of November 15, 1947, without prejudice to writing later an extended and
reasoned decision.
The right of freedom of speech and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the Constitutions of democratic countries.
But it a casettled principle growing out of the nature of well-ordered civil societies
that the exercise of those rights is not absolute for it may be so regulated that it
shall not be injurious to the equal enjoyment of others having equal rights, not
injurious to the rights of the community or society. The power to regulate the
exercise of such and other constitutional rights is termed the sovereign "police
power" which is the power to prescribe regulations, to promote the health, morals,
peace, education, good order or safety, and general welfare of the people. This
sovereign police power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other constitutional and civil
rights, and it may be delegated to political subdivisions, such as towns,
municipalities, and cities authorizing their legislative bodies, called municipal and
city councils to enact ordinances for the purpose.
G.R. No. L-1800
January 27, 1948
The Philippine legislature has delegated the exercise of the police power to the
Municipal Board of the City of Manila, which according to section 2439 of the
Administrative Code is the legislative body of the City. Section 2444 of the same
24
Code grants the Municipal Board, among others, the following legislative power, to
wit: "(p) to provide for the prohibition and suppression of riots, affrays,
disturbances, and disorderly assemblies, (u) to regulate the use of streets,
avenues ... parks, cemeteries and other public places" and "for the abatement of
nuances in the same," and "(ee) to enact all ordinances it may deem necessary
and proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City of Manila,
enacted sections 844 and 1119. Section of the Revised Ordinances of 1927
prohibits as an offense against public peace, and section 1262 of the same
Revised Ordinance penalizes as a misdemeanor, "any act, in any public place,
meeting, or procession, tending to disturb the peace or excite a riot; or collect with
other persons in a body or crowd for any unlawful purpose; or disturb or disquiet
any congregation engaged in any lawful assembly." And section 1119 provides the
following:
"SEC. 1119 Free for use of public The streets and public places of the
city shall be kept free and clear for the use of the public, and the
sidewalks and crossings for the pedestrians, and the same shall only be
used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or
exercise during the celebration of national holidays in any streets or public
places of the city and on the patron saint day of any district in question,
may be permitted by means of a permit issued by the Mayor, who shall
determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided,
further, That the holding of any parade or procession in any streets or
public places is prohibited unless a permit therefor is first secured from
the Mayor who shall, on every such ocassion, determine or specify the
streets or public places for the formation, route, and dismissal of such
parade or procession: And provided, finally, That all applications to hold a
parade or procession shall be submitted to the Mayor not less than
twenty-four hours prior to the holding of such parade or procession."
As there is no express and separate provision in the Revised Ordinance of the City
regulating the holding of public meeting or assembly at any street or public places,
the provisions of saif section 1119 regarding the holding of any parade or
procession in any street or public paces may be applied by analogy to meeting and
assembly in any street or public places.
Said provision is susceptible to two constructions: one is that the Mayor of the City
of Manila is vested with unregulated discretion to grant or refuse, to grant permit
for the holding of a lawful assembly or meeting, parade, or procession in the
streets and other public places of the City of Manila; and the other is that the
applicant has the right to a permit which shall be granted by the Mayor, subject
only to the latter's reasonable discretion to determine or specify the streets or
public places to be used for the purpose, with the view to prevent confusion by
overlapping, to secure convenient use of the streets and public places by others,
and to provide adequate and proper policing to minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we must adopt
the second construction, that is construe the provisions of the said ordinance to
mean that it does not confer upon the Mayor the power to refuse to grant the
permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting
may be held.
Our conclusions find support in the decision in the case of Willis Cox vs. State of
New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
Chap. 145, section 2, providing that "no parade or procession upon any ground
abutting thereon, shall be permitted unless a special license therefor shall first be
obtained from the select men of the town or from licensing committee," was
construed by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfetted discretion to refuse to grant the license, and held valid.
And the Supreme Court of the United States in its decision (1941) penned by Chief
Justice Hughes firming the judgement of the State Supreme Court, held that " a
statute requiring pewrsons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a freedom of speech and
press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration, the
time, place, and manner of the parade and procession, with a view to conserving
the public convenience and of affording an opportunity to provide proper policing
and are not invested with arbitrary discretion to issue or refuse license, ... ."
25
We can not adopt the alternative construction or constru the ordinance under
consideration as conferring upon the Mayor power to grant or refuse to grant the
permit, which would be tantamount to authorizing him to prohibit the use of the
streets and other public places for holding of meetings, parades or processions,
because such a construction would make the ordinance invalid and void or
violative of the constitutional limitations. As the Municipal Boards is empowered
only to regulate the use of streets, parks, and the other public places, and the word
"regulate," as used in section 2444 of the Revised Administrative Code, means and
includes the power to control, to govern, and to restrain, but can not be construed
a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of
Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it
does not have. Besides, the powers and duties of the Mayor as the Chief
Executive of the City are executive and one of them is "to comply with and enforce
and give the necessary orders for the faithful performance and execution of laws
and ordinances" (section 2434 [b] of the Revised Administrative Code), the
ligislative police power of the Municipal Board to enact ordinances regulating
reasonably the excercise of the fundamental personal rights of the citizens in the
streets and other public places, can not be delgated to the Mayor or any other
officer by conferring upon him unregulated discretion or without laying down rules
to guide and control his action by which its impartial execution can be secured or
partiality and oppression prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of
Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which empowers city
councils to regulate the use of public streets, the council has no power to ordain
that no processions shall be allowed upon the streets until a permit shall be
obtained from the superintendent of police, leaving the issuance of such permits to
his discretion, since the powers conferred on the council cannot be delegated by
them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis.,
585; 54 N.W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs. Radecke, 49
Md., 217, were also, in substance, the same, for the ordinance in that
case upon its face committed to the unrestrained will of a single public
officer the power to determine the rights of parties under it, when there
was nothing in the ordinance to guide or cintrol his action, and it was held
void because "it lays down no rules by which its impartial execution can
be secured, or partiality and oppression prevented." and that "when we

remember that action or nonaction may proceed from enmity or prejudice,
from partisan zeal or animosity, from favoritism and other improper
influences and motives easy of concealment and difficult to be detected
and exposed, it becomes unnecessary to suggest or to comment upon
the injustice capable of being wrought under cover of such a power, for
that becomes apparent to every one who gives to the subject a moment's
consideration. In fact, an ordinance which clothes a single individual with
such power hardly falls within the domain of law, and we are constrained
to pronounce it inoperative and void." ... In the exercise of police power,
the council may, in its discretion, regulate the exercise of such rights in a
reasonable manner, but can not suppress them, directly or indirectly, by
attempting to commit the power of doing so to the mayor or any other
officer. The discretion with which the council is vested is a legal discretion,
to be exercised within the limits of the law, and not a discretion to
transcend it or to confer upon any city officer and arbitrary authority,
making him in its exercise a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no
person or persons, or associations or organizations shall march, parade, ride or
drive, in ou upon or through the public streets of the City of Grand Rapids with
musical instrument, banners, flags, ... without first having obtained the consent of
the mayor or common council of said city;" was held by the Supreme Court of
Michigan to be unreasonable and void. Said Supreme Court in the course of the
decision held:
". . . We must therefore construe this charter, and the powers it assumes
to grant, so far as it is not plainly unconstitutional, as only conferring such
power over the subjects referred to as will enable the city to keep order,
and suppress mischief, in accordance with the limitations and conditions
required by the rights of the people themselves, as secured by the
principles of law, which cannot be less careful of private rights under the
constitution than under the common law."
"It is quite possible that some things have a greater tendency to produce
danger and disorder in cities than in smaller towns or in rural places. This
may justify reasonable precautionary measures, but nothing further; and
no inference can extend beyond the fair scope of powers granted for such
26
a purpose, and no grant of absolute discretion to suppress lawful action

altogther can be granted at all. . . . ."
"It has been customary, from time immemorial, in all free countries, and in
most civilized countries, for people who are assembled for common
purposes to parade together, by day or reasonable hours at night, with
banners and other paraphernalia, and with music of various kinds. These
processions for political, religious, and social demonstrations are resorted
to for the express purpose of keeping unity of feeling and enthusiasm,
and frequently to produce some effect on the public mind by the spectacle
of union and numbers. They are a natural product and exponent of
common aims, and valuable factors in furthering them. ... When people
assemble in riotous mobs, and move for purposes opposed to private or
public security, they become unlawful, and their members and abettors
become punishable. . . ."
"It is only when political, religious, social, or other demonstrations create
public disturbances, or operate as a nuisance, or create or manifestly
threaten some tangible public or private mischief, that the law interferes."
"This by-law is unreasonable, because it suppresses what is in general
perfectly lawful, and because it leaves the power of permitting or
restraining processions, and thier courses, to an unregulated official
discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of
the city ordinance which made it unlawful for any person, society or club, or
association of any kind, to parade any of the streets, with flags, banners, or
transparencies, drums, horns, or other musical instruments, without the permission
of the city council first had and obtained. The appellants were members of the
Salvation Army, and were prosecuted for a violation of the ordinance, and the court
in holding the ordinance invalid said, "Ordinances to be valid must be reasonable;
they must not be oppressive; they must be fair and impartial; they must not be so
framed as to allow their enforcement to rest on official discretion ... Ever since the
landing of the Pilgrims from the Mayflower the right to assemble and worship
accordingto the dictates of one's conscience, and the right to parade in a
peaceable manner and for a lawful purpose, have been fostered and regarded as
among the fundamental rights of a free people. The spirit of our free institutions
allows great latitude in public parades and emonstrations whether religious or

political ... If this ordinance is held valid, then may the city council shut off the
parades of those whose nations do not suit their views and tastes in politics or
religion, and permit like parades of those whose nations do. When men in authority
are permitted in their discretion to exercise power so arbitrary, liberty is subverted,
and the spirit of of our free institutions violated. ... Where the granting of the permit
is left to the unregulated discretion of a small body of city eldermen, the ordinance
cannot be other than partial and discriminating in its practical operation. The law
abhors partiality and discrimination. ... (19 L.R.A., p. 861)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the
Supreme Court of Colorado, in construing the provision of section 1 of Ordinance
No. 273 of the City of Walsenburg, which provides: "That it shall be unlawful for
any person or persons or association to use the street of the City of Walsenburg,
Colorado for any parade, procession or assemblage without first obtaining a permit
from the Chief of Police of the City of Walsenburg so to do," held the following:
"[1] The power of municipalities, under our state law, to regulate the use
of public streets is conceded. "35 C.S.A., chapter 163, section 10,
subparagraph 7. "The privilege of a citizen of the United States to use the
streets ... may be regulated in the interest of all; it is not absolute, but
relative, and must be excercised in subordination to the general, be
abridged or denied." Hague, Mayor vs. Committee for Industrial
Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose
regulations in the use of public streets is found in the recent case of
Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed.
1049; 133 A.L.R., 1936, in which the following appears; "The authority of
a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The
control of travel on the streets of cities is the most familiar illustration of
this recognition of social need. Where a restriction of the use of highways
in that relation is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted excercise of
some civil right which in other circumstances would be entitled to
protection. One would not be justified in ignoring the familiar red traffic
27
light because he thought it his religious duty to disobey the municipal

command or sought by that means to direct public attention to an
announcement of his opinions. As regulation of the use of the streets for
parades and processions is a traditional excercise of control by local
government, the question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge the right of assembly
and the opportunities for the communication of thought and the discussion
of public questions immemorially associated with resort to public places.
Lovell vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949
[953]; Hague vs. Committee for Industrial Organization, 307 U. S., 496,
515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147,
160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut,
310 U. S., 296, 306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219,
1220]; 128 A.L.R. 1352."
[4] Our concern here is the validity or nonvalidity of an ordinance which
leaves to the uncontrolled official discretion of the chief of police of the
municipal corporation to say who shall, who shall not, be accorded the
privilege of parading on its public streets. No standard of regulation is
even remotely suggested. Moreover, under the ordinance as drawn, the
chief of police may for any reason which he may entertain arbitrarily deny
this privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85
Law. ed., 1049, 1054, said:
"In the instant case the uncontrolled official suppression of the privilege of
using the public streets in a lawful manner clearly is apparent from the
face of the ordinance before us, and we therefore hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for Industrial
Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423, declared that a
municipal ordinance requiring the obtaining of a permit for a public assembly in or
upon the public streets, highways, public parks, or public buildings of the city and
authorizing the director of public safety, for the purpose of preventing riots,
disturbances, or disorderly assemblage, to refuse to issue a permit when after
investigation of all the facts and circumstances pertinent to the application he
believes it to be proper to refuse to issue a permit, is not a valid exercise of the
police power. Said Court in the course of its opinion in support of the conclusion
said:
". . . Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.
"We think the court below was right in holding the ordinance quoted in
Note 1 void upon its face. It does not make comfort or convenience in the
use of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such refusal
will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as
the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled
official suppression of the privilege cannot be made a substitute for the
duty to maintain order in connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of the City of Manila,
which provides that the Mayor shall have the power to grant and refuse municipal
licenses or permits of all classes, cannot be cited as an authority for the Mayor to
deny the application of the petitioner, for the simple reason that said general power
is predicated upon the ordinances enacted by the Municipal Board requiring
licenses or permits to be issued by the Mayor, such as those found in Chapters 40
to 87 of the Revised Ordinances of the City of Manila. It is not a specific or
substantive power independent from the corresponding municipal ordinances
which the Mayor, as Chief Executive of the City, is required to enforce under the
same section 2434. Moreover "one of the settled maxims in constitutional law is
that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local
government, specially of police regulation which are conferred upon the legislative
body of a municipal corporation. Taking this into consideration, and that the police
power to regulate the use of streets and other public places has been delegated or
rather conferred by the Legislature upon the Municipal Board of the City (section
28
2444 [u] of the Administrative Code) it is to be presumed that the Legislature has
not, in the same breath, conferred upon the Mayor in section 2434 (m) the same
power, specially if we take into account that its exercise may be in conflict with the
exercise of the same power by the Municipal Board.
Besides, assuming arguendo that the Legislature has the power to confer, and in
fact has conferred, upon the Mayor the power to grant or refuse licenses and
permits of all classes, independent from ordinances enacted by the Municipal
Board on the matter, and the provisions of section 2444 (u) of the same Code and
of section 1119 of the Revised Ordinances to the contrary notwithstanding, such
grant of unregulated and unlimited power to grant or refuse a permit for the use of
streets and other public places for processions, parades, or meetings, would be
null and void, for the same reasons stated in the decisions in the cases above
quoted, specially in Willis Cox vs. New Hampshire, supra, wherein the question
involved was also the validity of a similar statute of New Hamsphire. Because the
same constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained discretion
upon a city officer are applicable to a law or statute that confers unlimited power to
any officer either of the municipal or state governments. Under our democratic
system of government no such unlimited power may be validly granted to any
officer of the government, except perhaps in cases of national emergency. As
stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the
council is vested is a legal discretion to be exercised within the limits of the law,
and not a discretion to transcend it or to confer upon any city officer an arbitrary
authority making in its exercise a petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the
Administrative Code apparently in support of the decision in the case of
Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of said
provision was made by the writer of the decision under a mistaken conception of its
purview and is an obiter dictum, for it was not necessary for the decision rendered.
The popular meeting or assemblage intended to be held therein by the Communist
Party of the Philippines was clearly an unlawful one, and therefore the Mayor of the
City of Manila had no power to grant the permit applied for. On the contrary, had
the meeting been held, it was his duty to have the promoters thereof prosecuted
for violation of section 844, which is punishable as misdemeanor by section 1262
of the Revised Ordinances of the City of Manila. For, according to the decision,
"the doctrine and principles advocated and urged in the Constitution and by-laws of
the said Communist Party of the Philippines, and the speeches uttered, delivered,
and made by its members in the public meetings or gatherings, as above stated,
are highly seditious, in that they suggest and incite rebelious conspiracies and
disturb and obstruct the lawful authorities in their duty."
The reason alleged by the respondent in his defense for refusing the permit is,
"that there is a reasonable ground to believe, basing upon previous utterances and
upon the fact that passions, specially on the part of the losing groups, remains
bitter and high, that similar speeches will be delivered tending to undermine the
faith and confidence of the people in their government, and in the duly constituted
authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public
meeting," and there is no denial of that fact or any doubt that it was to be a lawful
assemblage, the reason given for the refusal of the permit can not be given any
consideration. As stated in the portion of the decision in Hague vs. Committee on
Industrial Organization, supra, "It does not make comfort and convenience in the
use of streets or parks the standard of official action. It enables the Director of
Safety to refuse the permit on his mere opinion that such refusal will prevent riots,
disturbances or disorderly assemblage. It can thus, as the record discloses, be
made the instrument of arbitrary suppression of free expression of views on
national affairs, for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities." To this we may add the following, which we make our own, said by
Mr. Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S.
(Law. ed.), 1105-1107:
"Fear of serious injury cannot alone justify suppression of free speech
and assembly. Men feared witches and burned women. It is the function
of speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the evil to be prevented
is a serious one . . .
"Those who won our independence by revolution were not cowards. They
did not fear political change. They did not exalt order at the cost of
liberty. . . .
"Moreover, even imminent danger cannot justify resort to prohibition of
these functions essential effective democracy, unless the evil
apprehended is relatively serious. Prohibition of free speech and
29
assembly is a measure so stringent that it would be inappropriate as the

means for averting a relatively trivial harm to a society. . . . The fact that
speech is likely to result in some violence or in destruction of property is
not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen, the deterrents ordinarily to be
applied to prevent crimes are education and punishment for violations of
the law, not abridgment of the rights of free speech and assembly."
Whitney vs. California, U. S. Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)
In view of all the foregoing, the petition for mandamus is granted and, there
appearing no reasonable objection to the use of the Plaza Miranda, Quiapo, for the
meeting applied for, the respondent is ordered to issue the corresponding permit,
as requested. So ordered.
30
to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4
P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M.
Salvador of the respondent Court reproduced the following stipulation of facts of
the parties parties
G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR
TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE
LEON, ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and
RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter
referred to as PBMEO) is a legitimate labor union composed of the employees of
the respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor
Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and
members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass
demonstration at Malacaang on March 4, 1969, in protest against alleged abuses
of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M.
3. That on March 2, 1969 complainant company learned of the

projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated
by the first shift (6:00 AM-2:00 PM) workers as well as those
working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM
to 5:00 PM) in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969
at about 11:00 A.M. at the Company's canteen, and those
present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S.
de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano
de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6)
Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny
said projected mass demonstration at Malacaang on March 4,
1969. PBMEO thru Benjamin Pagcu who acted as spokesman of
the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled
because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with
the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the demonstration is
an inalienable right of the union guaranteed by the Constitution
but emphasized, however, that any demonstration for that matter
should not unduly prejudice the normal operation of the
Company. For which reason, the Company, thru Atty. C.S. de
31
Leon warned the PBMEO representatives that workers who

belong to the first and regular shifts, who without previous leave
of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall
be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting
was convoked Company represented by Atty. C.S. de Leon, Jr.
The Union panel was composed of: Nicanor Tolentino, Rodolfo
Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and
appealed to the PBMEO representatives that while all workers
may join the Malacaang demonstration, the workers for the first
and regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and thus
utilize the workers in the 2nd and 3rd shifts in order not to violate
the provisions of the CBA, particularly Article XXIV: NO
LOCKOUT NO STRIKE'. All those who will not follow this
warning of the Company shall be dismiss; De Leon reiterated the
Company's warning that the officers shall be primarily liable
being the organizers of the mass demonstration. The union
panel countered that it was rather too late to change their plans
inasmuch as the Malacaang demonstration will be held the
following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M.,
March 4, 1969, the contents of which are as follows:
'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES
JOINING DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8,
Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with
the demonstration despite the pleas of the respondent Company that the first shift
workers should not be required to participate in the demonstration and that the
workers in the second and third shifts should be utilized for the demonstration from
6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass
demonstration on March 4, 1969, with the respondent Court, a charge against

petitioners and other employees who composed the first shift, charging them with a
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15,
all of Republic Act No. 875, and of the CBA providing for 'No Strike and No
Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint
affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.).
Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting
Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex
"C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate
the existing CBA because they gave the respondent Company prior notice of the
mass demonstration on March 4, 1969; that the said mass demonstration was a
valid exercise of their constitutional freedom of speech against the alleged abuses
of some Pasig policemen; and that their mass demonstration was not a declaration
of strike because it was not directed against the respondent firm (Annex "D", pp.
31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties,
Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein
petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp.
42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid
order (p. 11, rec.); and that they filed on September 29, 1969, because September
28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said order
dated September 15, 1969, on the ground that it is contrary to law and the
evidence, as well as asked for ten (10) days within which to file their arguments
pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex
"G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.),
respondent Company averred that herein petitioners received on September 22,
1969, the order dated September 17 (should be September 15), 1969; that under
Section 15 of the amended Rules of the Court of Industrial Relations, herein
32
petitioners had five (5) days from September 22, 1969 or until September 27,
1969, within which to file their motion for reconsideration; and that because their
motion for reconsideration was two (2) days late, it should be accordingly
dismissed, invoking Bien vs. Castillo, 1 which held among others, that a motion for
extension of the five-day period for the filing of a motion for reconsideration should
be filed before the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments
dated October 11, 1969, in support of their motion for reconsideration (Annex "I",
pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the
motion for reconsideration of herein petitioners for being pro forma as it was filed
beyond the reglementary period prescribed by its Rules (Annex "J", pp. 74-75,
rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released
on October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.),
appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of
the Court of Industrial Relations, that a motion for reconsideration shall be filed
within five (5) days from receipt of its decision or order and that an appeal from the
decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition
for relief from the order dated October 9, 1969, on the ground that their failure to
file their motion for reconsideration on time was due to excusable negligence and
honest mistake committed by the president of the petitioner Union and of the office
clerk of their counsel, attaching thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated
October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme
Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which underlie the
issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of
the human personality is the central core as well as the cardinal article of faith of
our civilization. The inviolable character of man as an individual must be "protected
to the largest possible extent in his thoughts and in his beliefs as the citadel of his
person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and
security "against the assaults of opportunism, the expediency of the passing hour,
the erosion of small encroachments, and the scorn and derision of those who have
no patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of
Rights is to withdraw "certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials, and to establish them as
legal principles to be applied by the courts. One's rights to life, liberty and property,
to free speech, or free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they depend on the outcome of
no elections." 4 Laski proclaimed that "the happiness of the individual, not the wellbeing of the State, was the criterion by which its behaviour was to be judged. His
interests, not its power, set the limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than
the ideas we cherish; or as Socrates insinuated, not only to protect the minority
who want to talk, but also to benefit the majority who refuse to listen. 6 And as
Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and
the liberties of one are not safe unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment. Thru these freedoms the citizens
can participate not merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that he
can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public
officers and employees.
33
(5) While the Bill of Rights also protects property rights, the primacy of human
rights over property rights is recognized. 8 Because these freedoms are "delicate
and vulnerable, as well as supremely precious in our society" and the "threat of
sanctions may deter their exercise almost as potently as the actual application of
sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the
Bill of Rights is a useless attempt to limit the power of government and ceases to
be an efficacious shield against the tyranny of officials, of majorities, of the
influential and powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of
our civil and political institutions; 10 and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact
that a mere reasonable or rational relation between the means employed by the
law and its object or purpose that the law is neither arbitrary nor discriminatory
nor oppressive would suffice to validate a law which restricts or impairs property
rights. 12 On the other hand, a constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and
reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added
that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas,
Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of
speech and of the press as well as of peaceful assembly and of petition for redress
of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall
be governed,"15 even as Mr. Justice Castro relies on the balancing-of-interests
test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free expression as is necessary to avoid the
danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their "concerted
act and the occurrence temporary stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the collective bargaining agreement with
private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on March 4, 1969 before
Malacaang was against alleged abuses of some Pasig policemen, not against
their employer, herein private respondent firm, said demonstrate was purely and
completely an exercise of their freedom expression in general and of their right of
assembly and petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the
municipality of Pasig. They exercise their civil and political rights for their mutual
aid protection from what they believe were police excesses. As matter of fact, it
was the duty of herein private respondent firm to protect herein petitioner Union
and its members fro the harassment of local police officers. It was to the interest
herein private respondent firm to rally to the defense of, and take up the cudgels
for, its employees, so that they can report to work free from harassment, vexation
or peril and as consequence perform more efficiently their respective tasks
enhance its productivity as well as profits. Herein respondent employer did not
even offer to intercede for its employees with the local police. Was it securing
peace for itself at the expenses of its workers? Was it also intimidated by the local
police or did it encourage the local police to terrorize or vex its workers? Its failure
to defend its own employees all the more weakened the position of its laborers the
alleged oppressive police who might have been all the more emboldened thereby
subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of
assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for their
very survival, utilizing only the weapons afforded them by the Constitution the
untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for
the preservation merely of their property rights. Such apprehended loss or damage
would not spell the difference between the life and death of the firm or its owners
or its management. The employees' pathetic situation was a stark reality
abused, harassment and persecuted as they believed they were by the peace
officers of the municipality. As above intimated, the condition in which the
employees found themselves vis-a-vis the local police of Pasig, was a matter that
34
vitally affected their right to individual existence as well as that of their families.
Material loss can be repaired or adequately compensated. The debasement of the
human being broken in morale and brutalized in spirit-can never be fully evaluated
in monetary terms. The wounds fester and the scars remain to humiliate him to his
dying day, even as he cries in anguish for retribution, denial of which is like rubbing
salt on bruised tissues.
As heretofore stated, the primacy of human rights freedom of expression, of
peaceful assembly and of petition for redress of grievances over property rights
has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon
at once the shield and armor of the dignity and worth of the human personality,
the all-consuming ideal of our enlightened civilization becomes Our duty, if
freedom and social justice have any meaning at all for him who toils so that capital
can produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad
faith in collective bargaining and hence a violation of the collective bargaining
agreement and a cause for the dismissal from employment of the demonstrating
employees, stretches unduly the compass of the collective bargaining agreement,
is "a potent means of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression, of peaceful
assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe regular working hours." The strain
construction of the Court of Industrial Relations that a stipulated working shifts
deny the workers the right to stage mass demonstration against police abuses
during working hours, constitutes a virtual tyranny over the mind and life the
workers and deserves severe condemnation. Renunciation of the freedom should
not be predicated on such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not
have been legally enjoined by any court, such an injunction would be trenching
upon the freedom expression of the workers, even if it legally appears to be illegal
picketing or strike. 20 The respondent Court of Industrial Relations in the case at
bar concedes that the mass demonstration was not a declaration of a strike "as the
same not rooted in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that only the
first and regular shift from 6 A.M. to 2 P.M. should report for work in order that loss
or damage to the firm will be averted. This stand failed appreciate the sine qua
non of an effective demonstration especially by a labor union, namely the complete
unity of the Union members as well as their total presence at the demonstration
site in order to generate the maximum sympathy for the validity of their cause but
also immediately action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is one of
the aspects of freedom of expression. 21 If demonstrators are reduced by one-third,
then by that much the circulation of the issues raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be
regarded as a substantial indication of disunity in their ranks which will enervate
their position and abet continued alleged police persecution. At any rate, the Union
notified the company two days in advance of their projected demonstration and the
company could have made arrangements to counteract or prevent whatever losses
it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who
will join the demonstration on March 4, 1969 which request the Union reiterated in
their telegram received by the company at 9:50 in the morning of March 4, 1969,
the day of the mass demonstration (pp. 42-43, rec.). There was a lack of human
understanding or compassion on the part of the firm in rejecting the request of the
Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration
held against the Pasig police, not against the company, is gross vindictiveness on
the part of the employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the
refusal on the part of the respondent firm to permit all its employees and workers to
join the mass demonstration against alleged police abuses and the subsequent
separation of the eight (8) petitioners from the service constituted an
unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair
labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No.
875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8
guarantees to the employees the right "to engage in concert activities for ... mutual
aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an
35
employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the
workers of the respondent firm on March 4, 1969, was for their mutual aid and
protection against alleged police abuses, denial of which was interference with or
restraint on the right of the employees to engage in such common action to better
shield themselves against such alleged police indignities. The insistence on the
part of the respondent firm that the workers for the morning and regular shift
should not participate in the mass demonstration, under pain of dismissal, was as
heretofore stated, "a potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at least
equal protection as the concerted action of employees in giving publicity to a letter
complaint charging bank president with immorality, nepotism, favoritism an
discrimination in the appointment and promotion of ban employees. 23 We further
ruled in the Republic Savings Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic
Act No. 875, "it is not necessary that union activity be involved or that collective
bargaining be contemplated," as long as the concerted activity is for the
furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of
respondent Court dated September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an inalienable right of the Union
guaranteed by the Constitution," nonetheless emphasized that "any demonstration
for that matter should not unduly prejudice the normal operation of the company"
and "warned the PBMEO representatives that workers who belong to the first and
regular shifts, who without previous leave of absence approved by the Company,
particularly the officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and, therefore,
would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration.
However, the issues that the employees raised against the local police, were more
important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen to
them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he
has a family to support. Yet, they were willing to forego their one-day salary hoping
that their demonstration would bring about the desired relief from police abuses.
But management was adamant in refusing to recognize the superior legitimacy of
their right of free speech, free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to demand
from the workers proof of the truth of the alleged abuses inflicted on them by the
local police, it thereby concedes that the evidence of such abuses should properly
be submitted to the corresponding authorities having jurisdiction over their
complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local
police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that
the demonstration "paralyzed to a large extent the operations of the complainant
company," the respondent Court of Industrial Relations did not make any finding as
to the fact of loss actually sustained by the firm. This significant circumstance can
only mean that the firm did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for failure to comply with purchase
orders on that day; or that penalties were exacted from it by customers whose
orders could not be filled that day of the demonstration; or that purchase orders
were cancelled by the customers by reason of its failure to deliver the materials
ordered; or that its own equipment or materials or products were damaged due to
absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water
and electric consumption that day. Such savings could have amply compensated
for unrealized profits or damages it might have sustained by reason of the absence
of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as
well as the right to petition for redress of grievances of the employees, the
dismissal of the eight (8) leaders of the workers for proceeding with the
demonstration and consequently being absent from work, constitutes a denial of
social justice likewise assured by the fundamental law to these lowly employees.
Section 5 of Article II of the Constitution imposes upon the State "the promotion of
social justice to insure the well-being and economic security of all of the people,"
which guarantee is emphasized by the other directive in Section 6 of Article XIV of
36
the Constitution that "the State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State is under obligation at all
times to give meaning and substance to these constitutional guarantees in favor of
the working man; for otherwise these constitutional safeguards would be merely a
lot of "meaningless constitutional patter." Under the Industrial Peace Act, the Court
of Industrial Relations is enjoined to effect the policy of the law "to eliminate the
causes of industrial unrest by encouraging and protecting the exercise by
employees of their right to self-organization for the purpose of collective bargaining
and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the
very governmental agency designed therefor, failed to implement this policy and
failed to keep faith with its avowed mission its raison d'etre as ordained and
directed by the Constitution.
V
It has been likewise established that a violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and
confers no rights. Relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus proceedings even
long after the finality of the judgment. Thus, habeas corpus is the remedy to obtain
the release of an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-incrimination; 25 or
who is denied the right to present evidence in his defense as a deprivation of his
liberty without due process of law, 26even after the accused has already served
sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon
these constitutional immunities of petitioners. Both failed to accord preference to
such rights and aggravated the inhumanity to which the aggrieved workers claimed
they had been subjected by the municipal police. Having violated these basic
human rights of the laborers, the Court of Industrial Relations ousted itself of
jurisdiction and the questioned orders it issued in the instant case are a nullity.
Recognition and protection of such freedoms are imperative on all public offices
including the courts 28 as well as private citizens and corporations, the exercise and
enjoyment of which must not be nullified by mere procedural rule promulgated by
the Court Industrial Relations exercising a purely delegate legislative power, when
even a law enacted by Congress must yield to the untrammelled enjoyment of
these human rights. There is no time limit to the exercise of the freedoms. The
right to enjoy them is not exhausted by the delivery of one speech, the printing of
one article or the staging of one demonstration. It is a continuing immunity to be
invoked and exercised when exigent and expedient whenever there are errors to
be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise
these guarantees in the Bill of Rights would be vitiated by rule on procedure
prescribing the period for appeal. The battle then would be reduced to a race for
time. And in such a contest between an employer and its laborer, the latter
eventually loses because he cannot employ the best an dedicated counsel who
can defend his interest with the required diligence and zeal, bereft as he is of the
financial resources with which to pay for competent legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of
its order or writ should filed within five (5) days from notice thereof and that the
arguments in support of said motion shall be filed within ten (10) days from the
date of filing of such motion for reconsideration (Sec. 16). As above intimated,
these rules of procedure were promulgated by the Court of Industrial Relations
pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days
from notice on September 22, 1969 of the order dated September 15, 1969 or two
(2) days late. Petitioners claim that they could have filed it on September 28, 1969,
but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late
defeat the rights of the petitioning employees? Or more directly and concretely,
does the inadvertent omission to comply with a mere Court of Industrial Relations
procedural rule governing the period for filing a motion for reconsideration or
appeal in labor cases, promulgated pursuant to a legislative delegation, prevail
over constitutional rights? The answer should be obvious in the light of the
aforecited cases. To accord supremacy to the foregoing rules of the Court of
Industrial Relations over basic human rights sheltered by the Constitution, is not
only incompatible with the basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate rules and regulations, but also
does violence to natural reason and logic. The dominance and superiority of the
constitutional right over the aforesaid Court of Industrial Relations procedural rule
of necessity should be affirmed. Such a Court of Industrial Relations rule as
applied in this case does not implement or reinforce or strengthen the
37
constitutional rights affected,' but instead constrict the same to the point of
nullifying the enjoyment thereof by the petitioning employees. Said Court of
Industrial Relations rule, promulgated as it was pursuant to a mere legislative
delegation, is unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieved workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the
Court of Appeals and the Supreme Court, a period of fifteen (15) days has been
fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51;
Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of
the motion for reconsideration could have been only one day if September 28,
1969 was not a Sunday. This fact accentuates the unreasonableness of the Court
of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated September 27,
1969, is based on the ground that the order sought to be reconsidered "is not in
accordance with law, evidence and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to file arguments pursuant to
Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G",
pp. 57-60, rec.); although the arguments were actually filed by the herein
petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day
period required for the filing of such supporting arguments counted from the filing
of the motion for reconsideration. Herein petitioners received only on October 28,
1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the reglementary
period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed
out of time, or where the arguments in suppf such motion are filed beyond the 10
day reglementary period provided for by the Court of Industrial Relations rules, the
order or decision subject of 29-a reconsideration becomes final and unappealable.
But in all these cases, the constitutional rights of free expression, free assembly
and petition were not involved.
It is a procedural rule that generally all causes of action and defenses presently
available must be specifically raised in the complaint or answer; so that any cause
of action or defense not raised in such pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for the first time on appeal, if it
appears that the determination of the constitutional issue is necessary to a
decision of the case, the very lis mota of the case without the resolution of which
no final and complete determination of the dispute can be made. 30 It is thus seen
that a procedural rule of Congress or of the Supreme Court gives way to a
constitutional right. In the instant case, the procedural rule of the Court of Industrial
Relations, a creature of Congress, must likewise yield to the constitutional rights
invoked by herein petitioners even before the institution of the unfair labor practice
charged against them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by
the organic law, is a most compelling reason to deny application of a Court of
Industrial Relations rule which impinges on such human rights.30-a
It is an accepted principle that the Supreme Court has the inherent power to
"suspend its own rules or to except a particular case from its operation, whenever
the purposes of justice require." 30-b Mr. Justice Barredo in his concurring opinion
in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all
situations without concerning itself about procedural niceties that
do not square with the need to do justice, in any case, without
further loss of time, provided that the right of the parties to a full
day in court is not substantially impaired. Thus, this Court may
treat an appeal as a certiorari and vice-versa. In other words,
when all the material facts are spread in the records before Us,
and all the parties have been duly heard, it matters little that the
error of the court a quo is of judgment or of jurisdiction. We can
then and there render the appropriate judgment. Is within the
contemplation of this doctrine that as it is perfectly legal and
within the power of this Court to strike down in an appeal acts
without or in excess of jurisdiction or committed with grave
abuse of discretion, it cannot be beyond the admit of its
authority, in appropriate cases, to reverse in a certain proceed in
any error of judgment of a court a quo which cannot be exactly
categorized as a flaw of jurisdiction. If there can be any doubt,
which I do not entertain, on whether or not the errors this Court
has found in the decision of the Court of Appeals are short of
being jurisdiction nullities or excesses, this Court would still be
on firm legal grounds should it choose to reverse said decision
here and now even if such errors can be considered as mere
38
mistakes of judgment or only as faults in the exercise of

jurisdiction, so as to avoid the unnecessary return of this case to
the lower court for the sole purpose of pursuing the ordinary
course of an appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in
this particular case at bar would an unreasoning adherence to "Procedural
niceties" which denies justice to the herein laborers, whose basic human
freedoms, including the right to survive, must be according supremacy over the
property rights of their employer firm which has been given a full hearing on this
case, especially when, as in the case at bar, no actual material damage has be
demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial
Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It should
be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable
and therefore such application becomes unconstitutional as it subverts the human
rights of petitioning labor union and workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations
rules with reference to the case at is also authorized by Section 20 of
Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of
Industrial Relations to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr.
Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners
in the motion for new trial is not "newly discovered," as such
term is understood in the rules of procedure for the ordinary
courts, We hold that such criterion is not binding upon the Court
of Industrial Relations. Under Section 20 of Commonwealth Act
No. 103, 'The Court of Industrial Relations shall adopt its, rules
or procedure and shall have such other powers as generally

pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or
controversy and in exercising any duties and power under this
Act, the Court shall act according to justice and equity and
substantial merits of the case, without regard to technicalities or
legal forms and shall not be bound by any technical rules of legal
evidence but may inform its mind in such manner as it may
deem just and equitable.' By this provision the industrial court is
disengaged from the rigidity of the technicalities applicable to
ordinary courts. Said court is not even restricted to the specific
relief demanded by the parties but may issue such orders as
may be deemed necessary or expedient for the purpose of
settling the dispute or dispelling any doubts that may give rise to
future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17,
1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.)
For these reasons, We believe that this provision is ample
enough to have enabled the respondent court to consider
whether or not its previous ruling that petitioners constitute a
minority was founded on fact, without regard to the technical
meaning of newly discovered evidence. ... (Alonso v. Villamor, 16
Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis
supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in
the instant case is to rule in effect that the poor workers, who can ill-afford an alert
competent lawyer, can no longer seek the sanctuary of human freedoms secured
to them by the fundamental law, simply because their counsel erroneously
believing that he received a copy of the decision on September 23, 1969, instead
of September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a
Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased
to be instruments of justice, for the attainment of which such rules have been
devised. Summarizing the jurisprudence on this score, Mr. Justice Fernando,
speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
39
As was so aptly expressed by Justice Moreland in Alonso v.

Villamor (16 Phil. 315 [1910]. The Villamor decision was cited
with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil.
600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as
far back as 1910, "technicality. when it deserts its proper-office
as an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts." (Ibid., p,
322.) To that norm, this Court has remained committed. The late
Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of
a similar mind. For him the interpretation of procedural rule
should never "sacrifice the ends justice." While "procedural laws
are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with
which courts have organized and function, but as means
conducive to the realization the administration of the law and of
justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of
substantial rights of a litigant in altar of sophisticated
technicalities with impairment of the sacred principles of justice."
(Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As
succinctly put by Justice Makalintal, they "should give way to the
realities of the situation." (Urbayan v. Caltex, L-15379, Aug. 31,
1962, 5 SCRA 1016, 1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.)
Justice Zaldivar was partial to an earlier formulation of Justice
Labrador that rules of procedure "are not to be applied in a very
rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to be
given effect, the dismissal or termination of the employment of the petitioning eight
(8) leaders of the Union is harsh for a one-day absence from work. The respondent
Court itself recognized the severity of such a sanction when it did not include the
dismissal of the other 393 employees who are members of the same Union and
who participated in the demonstration against the Pasig police. As a matter of fact,
upon the intercession of the Secretary of Labor, the Union members who are not
officers, were not dismissed and only the Union itself and its thirteen (13) officers
were specifically named as respondents in the unfair labor practice charge filed
against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C",
pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the 400 or so
employee participated in the demonstration, for which reason only the Union and
its thirteen (13) officers were specifically named in the unfair labor practice charge
(p. 20, respondent's brief). If that were so, then many, if not all, of the morning and
regular shifts reported for work on March 4, 1969 and that, as a consequence, the
firm continued in operation that day and did not sustain any damage.
The appropriate penalty if it deserves any penalty at all should have been
simply to charge said one-day absence against their vacation or sick leave. But to
dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since
as aforestated the Union leaders depend on their wages for their daily sustenance
as well as that of their respective families aside from the fact that it is a lethal blow
to unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those
who consciously seek to destroy our system of Government, but
from men of goodwill good men who allow their proper
concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we
must remember, however, is thatpreservation of liberties does
not depend on motives. A suppression of liberty has the same
effect whether the suppress or be a reformer or an outlaw. The
only protection against misguided zeal is a constant alertness of
the infractions of the guarantees of liberty contained in our
Constitution. Each surrender of liberty to the demands of the
moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of
all are protected.
40
... But even if we should sense no danger to our own liberties,

even if we feel secure because we belong to a group that is
important and respected, we must recognize that our Bill of
Rights is a code of fair play for the less fortunate that we in all
honor and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a
complete lack of sympathetic understanding of the plight of its laborers who claim
that they are being subjected to indignities by the local police, It was more
expedient for the firm to conserve its income or profits than to assist its employees
in their fight for their freedoms and security against alleged petty tyrannies of local
police officers. This is sheer opportunism. Such opportunism and expediency
resorted to by the respondent company assaulted the immunities and welfare of its
employees. It was pure and implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where
the petitioner Bank dismissed eight (8) employees for having written and published
"a patently libelous letter ... to the Bank president demanding his resignation on the
grounds of immorality, nepotism in the appointment and favoritism as well as
discrimination in the promotion of bank employees." Therein, thru Mr. Justice
Castro, We ruled:
It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual
capacities when they wrote the letter-charge they were
nonetheless protected for they were engaged in concerted
activity, in the exercise of their right of self organization that
includes concerted activity for mutual aid and protection,
(Section 3 of the Industrial Peace Act ...) This is the view of
some members of this Court. For, as has been aptly stated, the
joining in protests or demands, even by a small group of
employees, if in furtherance of their interests as such, is a
concerted activity protected by the Industrial Peace Act. It is not
necessary that union activity be involved or that collective
bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the

respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for
what it calls the respondents' libel in giving undue publicity to
their letter-charge. To be sure, the right of self-organization of
employees is not unlimited (Republic Aviation Corp. vs. NLRB
324 U.S. 793 [1945]), as the right of the employer to discharge
for cause (Philippine Education Co. v. Union of Phil. Educ.
Employees, L-13773, April 29, 1960) is undenied. The Industrial
Peace Act does not touch the normal exercise of the right of the
employer to select his employees or to discharge them. It is
directed solely against the abuse of that right by interfering with
the countervailing right of self organization (Phelps Dodge Corp.
v. NLRB 313 U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity that the
Bank's conduct, identified as an interference with the employees'
right of self-organization or as a retaliatory action, and/or as a
refusal to bargain collectively, constituted an unfair labor practice
within the meaning and intendment of section 4(a) of the
Industrial Peace Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify labor unionism
in the Republic Savings case, supra, where the complaint assailed the morality and
integrity of the bank president no less, such recognition and protection for free
speech, free assembly and right to petition are rendered all the more justifiable and
more imperative in the case at bar, where the mass demonstration was not against
the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of Industrial
Relations dated September 15 and October 9, 1969; and
41
(2) directing the re instatement of the herein eight (8) petitioners, with full back pay
from the date of their separation from the service until re instated, minus one day's
pay and whatever earnings they might have realized from other sources during
their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
people, however, were not in the mood to be joyous. They planned massive public
protests in different parts of the country. One of the biggest protest rallies was
blueprinted as a Welga ng Bayan at Escalante, Negros Occidental. It ended in
tragedy which will not easily recede in the mist of our history. Twenty (20)
demonstrators were shot dead and twenty-four (24) others were wounded by the
military and para-military forces of the Marcos government. Of several persons
charged with various counts of murder and frustrated murder, only three (3) were
convicted Generoso N. Subayco, Alfredo T. Alcalde and Eleuterio O. Ibaez
were convicted by the respondent Sandiganbayan. They now come to this Court
insisting on their innocence and pleading to be set free. We deny their petition and
we warn our military and police authorities that they cannot shoot people who are
exercising their right to peacefully assemble and petition the government for
redress of grievance.[1]
As aforestated, twenty (20) demonstrators were killed and twenty-four (24)
others were seriously wounded by gunshots during the Welga ng Bayan held on
September 20, 1985 at Escalante, Negros Occidental. Twenty (20) counts of
Murder and twenty-four (24) counts of Frustrated Murder [2] were filed with
respondent Sandiganbayan against those allegedly responsible for the death and
injuries of the victims. Charged were several civilian government officials,
personnel from the Philippine Constabulary and the Integrated National Police, and
from the para-military group Civilian Home Defense Force (CHDF), namely:
1. Ex-Mayor Braulio P. Lumayno,
[G.R. Nos. 117267-117310. August 22, 1996]

GENEROSO N. SUBAYCO, ALFREDO T. ALCALDE, and ELEUTERIO O.
IBAEZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PUNO, J.:
The year was 1985, the month, September. The Marcos government was
fast sliding into its sunset days. Yet, it was again set to celebrate with pomp,
September 21, the day it proclaimed martial law some thirteen (13) years ago. The
2. Ex-Governor Armando C. Gustilo,[3]

3. Danilo Nonoy Jimenez,
4. Capt. Modesto E. Sanson, Jr.,
5. CIC Alfredo T. Alcalde,
6. CIC Eleuterio O. Ibaez,
7. C2C Rufino L. Lerado,
8. C2C Carlos L. Santiago,
42
9. T/Sgt. Generoso N. Subayco,
28. Fmn. Gene Legaspina,
10. S/Sgt. Quirino L. Amar,
29. Fmn. Giomar D. Gale,
11. Sgt. Rolando A. Braa,
30. Fmn. Edwin T. Gustilo,
12. P/Capt. Rafael C. Jugan,
31. Fmn. Joel B. Rosal,
13. P/Pfc. Mariano C. Juarez, Jr.,
32. Chdf Teddy Magtubo,
14. P/Pfc. Alfonso Birao,
33. Chdf Elias Torias,
15. P/Pfc. Wilfredo Carreon,
34. Chdf Jose Boy Parcon,
16. P/Pfc. Rogelio Pea,
35. Chdf Jeremias Villanueva,
17. P/Pfc. Iluminado D. Guillen,
36. Chdf Dante P. Diaz,
18. Pat. Ludovico Cajurao,
37. Chdf Amador O. Villa,
19. Pat. Luisito T. Magalona,
38. Chdf Antonio A. Caete,
20. Pat. Alex Francisco M. Liguaton,
39. Chdf Jimmy Mayordomo,
21. Pat. Porfirio Q. Sypongco,
40. Chdf Jerry L. Espinosa,
22. Pat. Prudencio M. Panagsagan,
41. Chdf Francisco A. Morante,
23. Pat. Danilo P. Antones,
42. Chdf Bernie C. Muoz,
24. Pat. Elmer Sinadjan,
43. Chdf Ernesto V. Olaera,
25. Pat. Grant L. Batomalaque,
44. Chdf Dione L. Sesbreno, and
26. Pat. Lino F. Mercado,
45. Chdf Alfredo A. Quinatagcan alias Pidong Bagis.
27. F/Cpl. Casimiro Pandongan,
43
All of the accused were part of the police-military group which undertook the
dispersal operation during the rally.
16. Luisito Magalona,

17. Alex Francisco Liguaton,
Only twenty-eight (28) of the above accused were arrested and tried as the
others remained at large. The twenty-eight (28) were all members of the Philippine
Constabulary and the Integrated National Police, viz:
1. Modesto Sanson,
2. Alfredo Alcalde,
3. Eleuterio Ibaez,
4. Rufino Lerado,
5. Carlos Santiago,
6. Generoso Subayco,
7. Quirino Amar,
8. Rolando Braa,
9. Rafael Jugan,
10. Mariano Juarez,
11. Alfonso Birao,
18. Porfirio Sypongco,

19. Prudencio Panagsagan,
20. Danilo Antones,
21. Elmer Sinadjan,
22. Grant Batomalaque,
23. Casimiro Pandongan,
24. Gene Legaspina,
25. Socrates Jarina,
26. Giomar Gale,
27. Edwin Gustilo, and
28. Joel Rosal.
Upon conclusion of the trial, respondent court acquitted all the accused except
petitioners Alfredo Alcalde, Eleuterio Ibaez and Generoso Subayco. The
dispositive portion of the Decision held:
12. Wilfredo Carreon

13. Rogelio Pea,
WHEREFORE, for all the foregoing, the Court finds the evidence against the
following accused to be insufficient to establish their liability in the instant charges
and therefore ACQUITS them in all the herein cases:
14. Iluminado Guillen,

1. Modesto Sanson
15. Ludovico Cajurao,
2. Rufino Leado
44
3. Carlos Santiago
22. Socrates Jarina
4. Quirino Amar
23. Giomar Gale
5. Rolando Braa
24. Edwin Gustilo
6. Rafael Jugan
25. Joel Rosal, and
7. Mariano Juarez
26. Francisco Morante.
8. Alfonso Birao
The same evidence, however, has established the guilt beyond reasonable doubt
of the following accused who stood trial:
9. Wilfredo Carreon
1. Alfredo Alcalde
10. Rogelio Pea
2. Eleuterio Ibaez, and
11. Iluminado Guillen
3. Generoso Subayco
12. Ludivico Cajurao
13. Luisito Magalona
and the Court hereby renders judgment CONVICTING them and imposing upon
them the corresponding penalties, to wit:
14. Alex Francisco Liguaton
A. FOR MURDER in the following Criminal Cases:
15. Porfirio Sypongco
of Rodolfo Montealto in No. 12063
16. Prudencio Panagsagan
of Claro Monares in No. 12064
17. Danilo Antones
of Edgardo Salili in No. 12065
18. Elmer Sinadjan
of William Alegre in No. 12066
19. Grant Batomalaque
of Rovena Franco in No. 12067
20. Casimiro Pandongan
of Cesar Tejones in No. 12067
21. Gene Legaspina
of Juvely Jaravelo in No. 12070
45
of Rodney Demigilio in No. 12071
No. 12042 by Elias Hermogenes
of Manuel Tan in No. 12072
No. 12046 by Luvimin Leones
of Michael Dayanan in No. 12073
No. 12047 by Gloven Gabrido
of Maria Luz Mondejar in No. 12074
No. 12051 by Henry Sernal
of Aniano Ornopia in No. 12076
No. 12053 by Virgirita Mabuyao
of Nenita Orot in No. 12077
No. 12059 by Federico Dogomeo
of Johnny Suarez in No. 12078
No. 12060 by Wenefreda Loquinario
of Ronilo Sta. Ana in No. 12080
No. 12062 by Luzviminda Gemola
of Angelina Lape in No. 12081

1) imprisonment for an indeterminate period ranging from a minimum
of seventeen (17) years and one (1) day of reclusion temporal to a
maximum of reclusion perpetua for EACH of the above sixteen
cases;
2) to jointly pay indemnity to the heirs for the death of the above
mentioned victims at P50,000.00 for each victim, or a total of
P800,000.00;

of eight (8) years and one (1) day of prision mayor to a maximum
of fourteen (14) years, ten (10) months and twenty (20)
days ofreclusion temporal for EACH of the above ten (10) cases;
2) to jointly pay actual damages incurred only by the following victims,
as follows:
Alejandro Bocabal (No. 12040) - P800.00
Luzminda Gemola (No. 12062) - P700.00
3) to jointly pay moral damages to the heirs of the above victims at

P20,000.00 for each victim of a total of P320,000.00;
B. FOR FRUSTRATED MURDER for the injuries sustained under the following
Criminal Cases:
or a total of P1,500.00; no other damage having been actually

proven at trial;
3) to jointly pay moral damages to the following victims:
No. 12039 by Buenaventura Jaravelo
Buenaventura Jaravelo (No.12039) P10,000.00
No. 12041 by Alejandro Bocabal
Alejandro Bocabal (No. 12040) P10,000.00
46
Elias Hermogenes (No. 12042) P10,000.00
No. 12054 of Renato Saratobias
Luvimin Leones (No. 12046) P10,000.00
No. 12055 of Elisa Zarraga
Gloven Gabrido (No. 12047) P10,000.00
No. 12056 of Julio Iwayan
Henry Sernal (No. 12051) P10,000.00
No. 12057 of Nelson Cabahug
Virginita Mabuyao (No. 12053) P10,000.00
No. 12058 of Felix Almonia
Federico Dogomeo (No. 12059) P15,000.00
No. 12061 of Abundia Caraat-Petrano
Wenefrida Loquinario (No. 12060) P15,000.00

Luzminda Gemola (No. 12062) P10,000.00
or a total of P110,000.00.
C. FOR ATTEMPTED MURDER for the injuries sustained under the following
Criminal Cases:

of four (4) years, one (1) month and one (1) day of prision
correccional to a maximum of eight (8) years of prision mayor for
EACH of the above fourteen (14) cases;
2) to jointly pay actual damages incurred by the victims, as follows:
Celso Saburdo (No. 12041) P800.00
No. 12041 of Celso Saburdo
Renato Tapel (No. 12045) P300.00
No. 12043 of Eduardo Latosa
Joel Quiamco (No. 12048) P15,000.00
No. 12044 of Nelly Artajo
Lucia Ravanes (No. 12050) P2,000.00
No. 12045 of Renato Tapel
Renato Saratobias (No. 12054) P2,000.00
No. 12048 of Joel Quiamco
Elisa Zarraga (No. 12055) P300.00
No. 12049 of Magdalena Hemola
Nelson Cahabug (No. 12057) P2,000.00
No. 12050 of Lucia Ravanes
Abundia Petrano (No. 12061) P200.00
No. 12052 of Ernesto Caro
or a total of P22,600.00
47
3) to jointly pay moral damages to the victims at P5,000.00 for each of

the victims in the fourteen cases or a total of P70,000.00.
14. CHDF Ernesto V. Olaera

15. CHDF Dione L. Sebreno, and
These three accused, namely, Alfredo Alcalde, Eleuterio Ibaez and Genoroso
Subayco are, however, ACQUITTED in the four murder cases (No. 12069, No.
12075, No. 12079 and No. 12082 charging the deaths of Alex Lobatos, Rodolfo
Mahinay, Rogelio Magallen, Jr. and Norberto Locanilao, respectively) for failure of
the prosecution to prove their guilt beyond reasonable doubt.
LET an alias warrant of arrest issue for the following accused who, up to this time,
had eluded arrest:
1. Ex-Mayor Braulio Lumayno
2. Danilo Nonoy Jimenez
3. Pat. Lino F. Mercado
4. CHDF Teddy G. Magtubo
5. CHDF Elias Torias
6. CHDF Jose Boy Parcon
7. CHDF Jeremias Villanueva
8. CHDF Dante P. Diaz
9. CHDF Amador O. Villa
10. CHDF Antonio A. Caete
11. CHDF Jimmy Mayordomo
12. CHDF Jerry L. Espinosa
13. CHDF Bernie C. Muoz
16. CHDF Alfredo M. Quinatagcan alias Pidong Baguis.

In the meantime, the cases with respect to the above-named accused who remain
at large shall be archived pending their arrest or voluntary submission to the
jurisdiction of this Court.
SO ORDERED.[4]
Petitioners now come before us by way of certiorari raising the following
issues:
1. Whether respondent Sandiganbayan committed serious error of
law in convicting the petitioners based merely on alleged implied
conspiracy to perpetrate the crimes charged and not on clear,
positive and convincing proof of conspiracy; and
2. Whether respondent Sandiganbayan committed serious error of
law in convicting the petitioners despite that the quantum of
evidence required for a finding of guilt that is proof beyond
reasonable doubt was not satisfied.[5]
The petition must fail.
The undisputed facts are summarized by the respondent court in its
exhaustive Decision, as follows:
xxx
xxx
xxx
There was a rally held at Escalante, Negros Occidental that started on September
18, 1985. It was planned to go on until September 21, 1985, the anniversary of the
proclamation of martial law by then President Marcos. This rally was participated in
by members of the Bagong Alyansang Makabayan or BAYAN, the National
Federation of Sugar Workers, the Kristianong Katilingban, the CYO, the KMU, the
48
League of Filipino Students, and others. It was spearheaded by the BAYAN whose
leader at Escalante was Rolando Ponseca.
summoned his men under Capt. Jugan of the Escalante INP, the CHDF headed by
Sgt. Subayco and another team headed by Lt. Supaco.
The rally was without permit from the local authorities, although the plan was not
kept secret from them. In fact, this planned demonstration was taken up at a
conference called by the Provincial Command and attended by the accused Capt.
Sanson of the 334th PC Company stationed at Sagay, among other unit
commanders. At that meeting, the operational guidelines were laid down on how
to deal with the planned demonstration as well as with contingencies in connection
therewith. The local command headed by Capt. Sanson had met with the leaders
of the projected Welga ng Bayan in order to agree on ground rules for the conduct
of the rally.
After a last-ditch effort to peacefully disperse the crowd by Ponseca through a

letter to the demonstrators in front of the Rural Bank had failed, the dispersal
operation by Capt. Sanson began. Four firetrucks were dispatched to the crowd of
demonstrators, two of them the Cadiz and Escalante firetrucks towards the
demonstrators massed in front of the Rural Bank of Escalante. These hosed the
demonstrators with water but even after the water from them had been exhausted,
the demonstrators stayed put. Capt. Sanson then ordered the throwing of teargas
to the demonstrators by two of his men, Amar and Mercado. The tear gas caused
the demonstrators to lie face down on the ground; they persisted in their places
rather than disperse. Then, a single shot rang out followed by successive gunfire
from different directions. As one witness had described it, it was like New Years
Eve (TSN, February 7, 1994, testimony of accused CHDF Morante). This firing
lasted for a few minutes.
The Welga ng Bayan started as scheduled on September 18, 1985. It started with
a torch parade that evening. The demonstrators came to Escalante and stayed,
occupying the national highway in front of the Rural Bank of Escalante and the
other converging point at the market site. By the 20th, the crowd was at its
thickest. Estimates of the attendance therein ranged from 3,000 to 10,000.
At around noontime on that day, there were speeches delivered by speakers from
among the demonstrators using the public address system on an improvised
platform, addressing the crowd assembled in front of the Rural Bank. The crowd
also shouted anti-Marcos and anti-Military slogans, among others.
Capt. Sanson had been constantly apprised of the activities of the demonstrators
by reports coming from Capt. Rafael Jugan, the Station Commander of the INP at
Escalante. He was informed by the latter that the rallyists had failed to honor their
commitment not to barricade the entire portion of the national highway so as not to
obstruct traffic. He was likewise informed that the demonstrators were collecting
money from passing motorists and that the demonstrators were becoming unruly.
Capt. Sanson in turn reported these pieces of information to the Provincial
Command. As he was in charge of the area, Capt. Sanson took it upon himself to
personally talk to Ponseca, when he believed that his Station Commander had
failed to get in touch with Ponseca, to remind him of his commitment. After
Ponseca had failed to effect a dispersal of the crowd or to open at least half of the
road to allow passage to vehicles, he had prepared a dispersal operation and had
called fire-fighting personnel and equipment from the towns of Sagay and
Escalante, as well as from the cities of San Carlos and Cadiz. He had also
Capt. Sanson had been heard by some of the witnesses to have shouted Stop
firing repeatedly and, after some time, the firing had stopped, but not soon enough
for men and women from the rallyists group who died and others who were
wounded as a result of the gunfire.[6]
It was the thesis of the prosecution that the whole dispersal operation was an
unlawful conspiracy, that the firing at the crowd was part of the dispersal operation,
and that all those who took part in the dispersal operation should be held liable for
each death and each injury that resulted therefrom.[7]
The accused denied the existence of conspiracy. Subayco and Ibaez
claimed that they merely fired into the air but not toward the crowd. On his part,
Alcalde admitted that he fired his weapon to prevent the rallyists from climbing the
Cadiz City firetruck.[8]
In its Decision, the respondent court ruled there was no sufficient evidence to
prove general conspiracy of the forty-five (45) accused as alleged by the
prosecution.[9] It then examined the individual acts of the accused during the
dispersal operation to determine their liability for the death and injuries of the
victims. It found implied conspiracy only on the part of all the accused who fired at
the demonstrators.
49
Per finding of the respondent Sandiganbayan, the firing came from the Cadiz
City firetruck and the jeep which witnesses referred to as a weapons
carrier. After the rallyists were hosed with water, the Cadiz City firetruck
attempted to move back, but was trapped by the logs and rocks ostensibly put by
the rallyists under its wheels. The weapons carrier was then maneuvered behind
the Cadiz City firetruck. Thereafter, teargas canisters were lobbed at the rallyists.
Jovy Jaravelo, a rallyist, picked up one of the canisters and threw it back where it
came from. Hell broke loose. CHDF Alfredo Quinatagcan (a.k.a. Pidong Bagis)
shot
Jaravelo. Successive
gunfire
followed. Several
witnesses
saw
the CHDF personnel and the PC men on board the Cadiz City firetruck and the
weapons carrier fire their guns. Some fired into the air while the others directed
their gun shots at the rallyists. When the dust settled down, twenty (20) of the
demonstrators were dead, twenty-four (24) others were wounded and seventy-nine
(79) empty shells were recovered from the scene of the crime. They were later
traced to four firearms belonging to CHDF Caete, CHDF Parcon, C2C Lerado
and CIC Ibaez.[10]
circumstantial evidence, that is, their community of purpose and their unity of
design in the contemporaneous or simultaneous performance of the act of
assaulting the deceased.
The following were identified by witnesses to have fired their

guns: CHDF Alfredo
M.
Quinatagcan alias Pidong
Bagis, CHDF Elias
Torias, CHDF Jimmy
Mayordomo, CHDF Teddy
Magtubo, CHDF Jeremias
Villanueva, CHDF Jose Boy Parcon, Roming Javier, C1C Eleuterio O. Ibaez,
T/Sgt. Generoso N. Subayco, C1C Alfredo Alcalde.[11]
We therefore uphold the respondent court in ruling that the following

circumstances proved the existence of an implied conspiracy among the
petitioners in the cases at bar:
On the basis of the evidence adduced and following its theory of implied
conspiracy, the respondent Court held petitioners liable for the deaths and injuries
of all the victims.[12] It is this finding of implied conspiracy that petitioners assail in
the petition at bar.
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. It may be deduced
from the mode and manner in which the offense was committed. The concerned
acts of petitioners to achieve the same objective signify conspiracy. [13] In the case
of People vs. Guevarra,[14] we enunciated the doctrine of implied conspiracy as
follows:
xxx
xxx
xxx
Although there is no well-founded evidence that the appellant and Romero had
conferred and agreed to kill Joselito, their complicity can be justified by
xxx
xxx
xxx
There can be no question that the appellants act in holding the victim from behind
immediately before the latter was stabbed by Eduardo constitutes a positive and
overt act towards the realization of a common criminal intent, although the intent
may be classified as instantaneous. The act was impulsively done on the spur of
the moment. It sprang from the turn of events, thereby uniting the criminal design
of the slayer immediately before the commission of the offense. That is termed as
implied conspiracy. The appellants voluntary and indispensable cooperation was
a concurrence of the criminal act to be executed. Consequently, he is a coconspirator by indispensable cooperation, although the common desire or purpose
was never bottled up by previous undertaking. (italics supplied)
1. After the Escalante firetruck exhausted its supply of water, it

withdrew from the scene.
2. The Cadiz City firetruck took over hosing the crowd. It also ran out
of water, tried to back out but was prevented by the logs and rocks
strewn behind it.
3. The weapons carrier then moved behind the Cadiz City firetruck.
4. Teargas canisters were thrown into the crowd. Jovy Jaravelo, a
rallyist, picked up one of the canisters and threw it back to where it
came from. At this juncture, CHDF Alfredo Quinatagcan a.k.a.
Pidong Bagis shot Jaravelo. Successive gunfire followed.
5. The seventy-nine (79) empty shells recovered from the scene of the
crime were traced to four M-16 rifles issued to CHDF Caete, CHDF
Parcon, C2C Lerado and C1C Ibaez. Caete and Parcon were on
50
board the weapons carrier while Lerado and Ibaez were on board
the Cadiz City firetruck.
6. The other personnel who were also on these two vehicles were also
scene to have fired at the crowd.
All these circumstances intersect to show a community of purpose among the
petitioners and their companions, that is, to fire at the demonstrators. This
common purpose was pursued by the petitioners and their companions who used
firepower against the rallyists. As proved, the plan to disperse the demonstrators
did not include the use of guns, yet, petitioners and their cohorts did. At the first
crack of gunfire coming from CHDF Alfredo Quinatagcan (a.k.a. Pidong Bagis),
petitioners and their companions commenced firing at the demonstrators, as if on
signal. They fired indiscriminately toward the demonstrators who were then
already lying prone on the ground. There was no imminent danger to their
safety. Not just one or a few shots were fired but several. The firing lasted a few
minutes and cost the lives and limbs of the demonstrators. We agree with the
respondent court that the collective acts of the petitioners and their companions
clearly show the existence of a common design toward the accomplishment of a
united purpose.[15] They were therefore properly convicted for all the crimes they
were charged with.
The use of bullets to break up an assembly of people petitioning for redress
of grievance cannot but be bewailed. It is bound to happen again for as long as
abuses in government abound. Precisely to help put a brake on official abuses,
people empowerment was codified in various provisions of the 1987
Constitution. It is high time to remind our officials that under our Constitution
power does not come from the barrel of a gun but from the ballots of the people. It
is thus important to know the unexpurgated will of the people for in a republican
government, it is the people who should truly rule. Consequently, the right of the
people to assemble peacefully and to petition for redress of grievance should not
be abridged by officials momentarily holding the powers of government. So we
expressly held in the early case of US v. Apurado.[16]
if the prosecution be permitted to seize upon every instance of such disorderly

conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the
right to assemble and to petition for redress of grievances would become a
delusion and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part therein to
the severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals should be sought
out and punished therefor, but the utmost discretion must be exercised in drawing
the line between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising.
The Constitution did not engage in mystical teaching when it proclaimed in solemn
tone that sovereignty resides in the people and all government authority emanates
from them.[17] It should be clear even to those with intellectual deficits that when
the sovereign people assemble to petition for redress of grievances, all should
listen, especially the government. For in a democracy, it is the people who count;
those who are deaf to their grievances are ciphers.
Our affirmance of the conviction of the petitioners does not give complete
justice to the victims of the Escalante massacre, subject of the cases at bar. Until
today, sixteen (16) of the other accused have successfully eluded arrest by the
authorities. Not until they have been arrested and tried will justice emerge
triumphant for justice cannot come in fraction.
IN VIEW WHEREOF, the Decision of the Sandiganbayan promulgated
October 3, 1994 is affirmed. Let copies of this Decision be furnished the Secretary
of Justice and the Secretary of Interior and Local Government that they may
undertake the necessary efforts to effectuate the early arrest of the other accused
in the cases at bar. Costs against petitioners.
SO ORDERED.
It is rather to be expected that more or less disorder will mark the public assembly
of the people to protest against grievances whether real or imaginary, because on
such occasions feeling it always brought to a high pitch of excitement, and the
greater the grievance and the more intense the feeling, the less perfect, as a rule,
will be the disciplinary control of the leaders over their irresponsible followers. But
51
52
G.R. No. L-46553-46555 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEON FABILLAR, defendant-appellant.
Antonio J. Beldia for appellant. Office of the Solicitor-General Tuason for appellee.
Moran, J.:
Leon Fabilla was charged, in three separate cases, in the Court of First Instance of
Capiz, with violation of section 34, in connection with section 39, of the Marriage
Law. In each of the three cases, the accused entered the plea of not guilty and, by
agreement of the parties, they were tried jointly.
The evidence discloses that on May 8, 1934, the Director of the National Library
issued a certificate to the accused, then a parish priest of the Independent Church
53
in Maayon, Pontevedra, Capiz, wherein he was authorized to solemnize marriages

within the jurisdiction named therein. The accused has never renewed this
authorization after its expiration on May 1, 1935. On June 1, 1935, he was
suspended from the performance of his apostolic functions and notice of such
suspension was given him by the bishop of the church as well as by the vicargeneral for the Provinces of Capiz and Romblon. The suspension continued until it
was lifted on October 3, 1936. On January 13, February 9, and March 25, 1936, he
solemnized the marriages mentioned in the informations.
The trial court found the accused guilty of the offenses charged and condemned
him to pay, in each case, a fine of two hundred pesos with subsidiary imprisonment
in case of insolvency. The accused appealed.
Section 34 of the Marriage Law provides:
Every priest or minister authorized by his church, sect, or religion to solemnize
marriage shall send to the Philippine National Library a sworn statement setting
forth his full name and domicile, and that he is authorized by his church, sect, or
religion to solemnize marriage, attaching to said statement a certified copy of his
appointment. The Director of the Philippine National Library, upon receiving such
sworn statement containing the information required, and being satisfied that the
church, sect, or religion of the applicant operates in the Philippine Islands and is in
good repute, shall record the name of such priest or minister in a suitable register
and issue to him an authorization to solemnize marriage. Said priest or minister
shall be obliged to exhibit his authorization to contracting parties, to their parents,
grandparents, guardians, or persons in charge demanding the same. No priest or
minister not having the required authorization may solemnize marriage.
The authorization shall be renewed on or before the first day of May of each year,
upon payment of the required fee.
authorization has ceased to exist. In the third place, after the authorization has
expired, the accused was suspended from the performance of his apostolic
functions and, therefore, he bad absolutely no authority to solemnize the marriages
in question.
Appellant impugns the constitutionality of section 34 of the Marriage Law. It is
contended that it, in effect, confers upon the Director of the National Library the
power to inquire into the organization and doctrine of the particular church, sect or
religion, and to forbid its operation at his discretion. What the provision in question
confers upon the Director of the National Library is the duty which, of course,
carries with it the power, to satisfy himself whether the "church, sect or religion of
the applicant operates in the Philippine Islands and is in good repute." The duty
thus conferred is not one of inquiry into the organization or doctrine of a particular
church or religion, but a duty to distinguish and discriminate between a legitimately
established religion or church and one that pretends to be as such, as a
prerequisite to the issuance of a certificate of authority. The law, therefore, in no
sense prohibits nor impairs the free exercise of any religion. On the contrary, it
purports to protect every legitimately established religion from the imposture of
pseudo or spurious religious organizations which ostensibly appear to be
dedicated to the practice of religion and the exercise of particular faith but which in
reality are mere marriage agencies.
Finally, appellant contends that section 39 of the Marriage Law imposes a cruel
and unusual punishment. It is argued that it imposes a heavy fine for the mere
failure to renew the authorization required therein. But as correctly observed by the
trial court, the penalty imposed by law is not for the omission to secure the renewal
of authorization, but for the solemnization of marriages by priests or ministers
without the required authorization.
Judgment is affirmed, with costs to the appellant.
It seems to be the contention of the appellant that, under the above provisions, as
far as the authority to solemnize marriages is concerned, the authorization, once
issued, continues in force and that the requirement for its renewal is intended
solely for revenue purposes. This contention is not in accord with either the spirit or
the letter of the law. In the first place, the required fee for the issuance of the
certificate of authority to solemnize marriages is, by its nominal character, intended
purely for regulation and not for revenue. In the second place, renewal, as required
by law, presupposes expiration of the authorization. And expiration means that the
54
G.R. No. L-9637
April 30, 1957
55
AMERICAN BIBLE SOCIETY, plaintiff-appellant,

vs.
CITY OF MANILA, defendant-appellee.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Naawa for appellee.
FELIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary
corporation duly registered and doing business in the Philippines through its
Philippine agency established in Manila in November, 1898, with its principal office
at 636 Isaac Peral in said City. The defendant appellee is a municipal corporation
with powers that are to be exercised in conformity with the provisions of Republic
Act No. 409, known as the Revised Charter of the City of Manila.
In the course of its ministry, plaintiff's Philippine agency has been distributing and
selling bibles and/or gospel portions thereof (except during the Japanese
occupation) throughout the Philippines and translating the same into several
Philippine dialects. On May 29 1953, the acting City Treasurer of the City of Manila
informed plaintiff that it was conducting the business of general merchandise since
November, 1945, without providing itself with the necessary Mayor's permit and
municipal license, in violation of Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364, and required plaintiff to secure, within
three days, the corresponding permit and license fees, together with compromise
covering the period from the 4th quarter of 1945 to the 2nd quarter of 1953, in the
total sum of P5,821.45 (Annex A).
Plaintiff protested against this requirement, but the City Treasurer demanded that
plaintiff deposit and pay under protest the sum of P5,891.45, if suit was to be taken
in court regarding the same (Annex B). To avoid the closing of its business as well
as further fines and penalties in the premises on October 24, 1953, plaintiff paid to
the defendant under protest the said permit and license fees in the aforementioned
amount, giving at the same time notice to the City Treasurer that suit would be
taken in court to question the legality of the ordinances under which, the said fees
were being collected (Annex C), which was done on the same date by filing the
complaint that gave rise to this action. In its complaint plaintiff prays that judgment
be rendered declaring the said Municipal Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and that the
defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid under
protest, together with legal interest thereon, and the costs, plaintiff further praying
for such other relief and remedy as the court may deem just equitable.
Defendant answered the complaint, maintaining in turn that said ordinances were
enacted by the Municipal Board of the City of Manila by virtue of the power granted
to it by section 2444, subsection (m-2) of the Revised Administrative Code,
superseded on June 18, 1949, by section 18, subsection (1) of Republic Act No.
409, known as the Revised Charter of the City of Manila, and praying that the
complaint be dismissed, with costs against plaintiff. This answer was replied by the
plaintiff reiterating the unconstitutionality of the often-repeated ordinances.
Before trial the parties submitted the following stipulation of facts:
COME NOW the parties in the above-entitled case, thru their undersigned
attorneys and respectfully submit the following stipulation of facts:
1. That the plaintiff sold for the use of the purchasers at its principal office at 636
Isaac Peral, Manila, Bibles, New Testaments, bible portions and bible concordance
in English and other foreign languages imported by it from the United States as
well as Bibles, New Testaments and bible portions in the local dialects imported
and/or purchased locally; that from the fourth quarter of 1945 to the first quarter of
1953 inclusive the sales made by the plaintiff were as follows:
Quarter
Amount of Sales
4th quarter 1945
P1,244.21
1st quarter 1946
2,206.85
2nd quarter 1946
1,950.38
3rd quarter 1946
2,235.99
56
4th quarter 1946
3,256.04
1st quarter 1947
13,241.07
2nd quarter 1949
17,802.08
2nd quarter 1947
15,774.55
3rd quarter 1949
16,640.79
3rd quarter 1947
14,654.13
4th quarter 1949
15,961.38
4th quarter 1947
12,590.94
1st quarter 1950
18,562.46
1st quarter 1948
11,143.90
2nd quarter 1950
21,816.32
2nd quarter 1948
14,715.26
3rd quarter 1950
25,004.55
3rd quarter 1948
38,333.83
4th quarter 1950
45,287.92
4th quarter 1948
16,179.90
1st quarter 1951
37,841.21
1st quarter 1949
23,975.10
2nd quarter 1951
29,103.98
57
3rd quarter 1951
20,181.10
4th quarter 1951
22,968.91
1st quarter 1952
23,002.65
2nd quarter 1952
17,626.96
3rd quarter 1952
17,921.01
4th quarter 1952
24,180.72
When the case was set for hearing, plaintiff proved, among other things, that it has
been in existence in the Philippines since 1899, and that its parent society is in
New York, United States of America; that its, contiguous real properties located at
Isaac Peral are exempt from real estate taxes; and that it was never required to
pay any municipal license fee or tax before the war, nor does the American Bible
Society in the United States pay any license fee or sales tax for the sale of bible
therein. Plaintiff further tried to establish that it never made any profit from the sale
of its bibles, which are disposed of for as low as one third of the cost, and that in
order to maintain its operating cost it obtains substantial remittances from its New
York office and voluntary contributions and gifts from certain churches, both in the
United States and in the Philippines, which are interested in its missionary work.
Regarding plaintiff's contention of lack of profit in the sale of bibles, defendant
retorts that the admissions of plaintiff-appellant's lone witness who testified on
cross-examination that bibles bearing the price of 70 cents each from plaintiffappellant's New York office are sold here by plaintiff-appellant at P1.30 each; those
bearing the price of $4.50 each are sold here at P10 each; those bearing the price
of $7 each are sold here at P15 each; and those bearing the price of $11 each are
sold here at P22 each, clearly show that plaintiff's contention that it never makes
any profit from the sale of its bible, is evidently untenable.
After hearing the Court rendered judgment, the last part of which is as follows:
As may be seen from the repealed section (m-2) of the Revised Administrative
Code and the repealing portions (o) of section 18 of Republic Act No. 409,
although they seemingly differ in the way the legislative intent is expressed, yet
their meaning is practically the same for the purpose of taxing the merchandise
mentioned in said legal provisions, and that the taxes to be levied by said
ordinances is in the nature of percentage graduated taxes (Sec. 3 of Ordinance
No. 3000, as amended, and Sec. 1, Group 2, of Ordinance No. 2529, as amended
by Ordinance No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the opinion
and so holds that this case should be dismissed, as it is hereby dismissed, for lack
of merits, with costs against the plaintiff.
1st quarter 1953
29,516.21
2. That the parties hereby reserve the right to present evidence of other facts not
herein stipulated.
WHEREFORE, it is respectfully prayed that this case be set for hearing so that the
parties may present further evidence on their behalf. (Record on Appeal, pp. 1516).
Not satisfied with this verdict plaintiff took up the matter to the Court of Appeals
which certified the case to Us for the reason that the errors assigned to the lower
Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended, are
not unconstitutional;
58
2. In holding that subsection m-2 of Section 2444 of the Revised Administrative

Code under which Ordinances Nos. 2592 and 3000 were promulgated, was not
repealed by Section 18 of Republic Act No. 409;
3. In not holding that an ordinance providing for taxes based on gross sales or
receipts, in order to be valid under the new Charter of the City of Manila, must first
be approved by the President of the Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have assumed
commercial proportions, it cannot escape from the operation of said municipal
ordinances under the cloak of religious privilege.
The issues. As may be seen from the proceeding statement of the case, the
issues involved in the present controversy may be reduced to the following: (1)
whether or not the ordinances of the City of Manila, Nos. 3000, as amended, and
2529, 3028 and 3364, are constitutional and valid; and (2) whether the provisions
of said ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of the
Philippines, provides that:
(7) No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof, and the free exercise and enjoyment of religious profession
and worship, without discrimination or preference, shall forever be allowed. No
religion test shall be required for the exercise of civil or political rights.
Predicated on this constitutional mandate, plaintiff-appellant contends that
Ordinances Nos. 2529 and 3000, as respectively amended, are unconstitutional
and illegal in so far as its society is concerned, because they provide for religious
censorship and restrain the free exercise and enjoyment of its religious profession,
to wit: the distribution and sale of bibles and other religious literature to the people
of the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We shall
first consider the provisions of the questioned ordinances in relation to their
application to the sale of bibles, etc. by appellant. The records, show that by letter
of May 29, 1953 (Annex A), the City Treasurer required plaintiff to secure a Mayor's
permit in connection with the society's alleged business of distributing and selling
bibles, etc. and to pay permit dues in the sum of P35 for the period covered in this
litigation, plus the sum of P35 for compromise on account of plaintiff's failure to
secure the permit required by Ordinance No. 3000 of the City of Manila, as
amended. This Ordinance is of general application and not particularly directed
against institutions like the plaintiff, and it does not contain any provisions whatever
prescribing religious censorship nor restraining the free exercise and enjoyment of
any religious profession. Section 1 of Ordinance No. 3000 reads as follows:
SEC. 1. PERMITS NECESSARY. It shall be unlawful for any person or entity to
conduct or engage in any of the businesses, trades, or occupations enumerated in
Section 3 of this Ordinance or other businesses, trades, or occupations for which a
permit is required for the proper supervision and enforcement of existing laws and
ordinances governing the sanitation, security, and welfare of the public and the
health of the employees engaged in the business specified in said section 3
hereof, WITHOUT FIRST HAVING OBTAINED A PERMIT THEREFOR FROM THE
MAYOR AND THE NECESSARY LICENSE FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this case is not
particularly mentioned in Section 3 of the Ordinance, and the record does not show
that a permit is required therefor under existing laws and ordinances for the proper
supervision and enforcement of their provisions governing the sanitation, security
and welfare of the public and the health of the employees engaged in the business
of the plaintiff. However, sections 3 of Ordinance 3000 contains item No. 79, which
reads as follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the power of the
City to license or tax said business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the society
to pay from the 4th quarter of 1945 to the 1st quarter of 1953 in the sum of
P5,821.45, including the sum of P50 as compromise, Ordinance No. 2529, as
amended by Ordinances Nos. 2779, 2821 and 3028 prescribes the following:
SEC. 1. FEES. Subject to the provisions of section 578 of the Revised
Ordinances of the City of Manila, as amended, there shall be paid to the City
Treasurer for engaging in any of the businesses or occupations below enumerated,
quarterly, license fees based on gross sales or receipts realized during the
preceding quarter in accordance with the rates herein prescribed: PROVIDED,
HOWEVER, That a person engaged in any businesses or occupation for the first
time shall pay the initial license fee based on the probable gross sales or receipts
for the first quarter beginning from the date of the opening of the business as
indicated herein for the corresponding business or occupation.
xxx
xxx
xxx
59
GROUP 2. Retail dealers in new (not yet used) merchandise, which dealers are
not yet subject to the payment of any municipal tax, such as (1) retail dealers in
general merchandise; (2) retail dealers exclusively engaged in the sale of . . .
books, including stationery.
xxx
xxx
xxx
As may be seen, the license fees required to be paid quarterly in Section 1 of said
Ordinance No. 2529, as amended, are not imposed directly upon any religious
institution but upon those engaged in any of the business or occupations therein
enumerated, such as retail "dealers in general merchandise" which, it is alleged,
cover the business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444,
subsection (m-2) of said legal body, as amended by Act No. 3659, approved on
December 8, 1929, empowers the Municipal Board of the City of Manila:
(M-2) To tax and fix the license fee on (a) dealers in new automobiles or
accessories or both, and (b) retail dealers in new (not yet used) merchandise,
which dealers are not yet subject to the payment of any municipal tax.
For the purpose of taxation, these retail dealers shall be classified as (1) retail
dealers in general merchandise, and (2) retail dealers exclusively engaged in the
sale of (a) textiles . . . (e) books, including stationery, paper and office
supplies, . . .: PROVIDED, HOWEVER, That the combined total tax of any debtor
or manufacturer, or both, enumerated under these subsections (m-1) and (m-2),
whether dealing in one or all of the articles mentioned herein, SHALL NOT BE IN
EXCESS OF FIVE HUNDRED PESOS PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000, as
amended, were enacted in virtue of the power that said Act No. 3669 conferred
upon the City of Manila. Appellant, however, contends that said ordinances are
longer in force and effect as the law under which they were promulgated has been
expressly repealed by Section 102 of Republic Act No. 409 passed on June 18,
1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that Republic Act No.
409 expressly repealed the provisions of Chapter 60 of the Revised Administrative
Code but in the opinion of the trial Judge, although Section 2444 (m-2) of the
former Manila Charter and section 18 (o) of the new seemingly differ in the way the
legislative intent was expressed, yet their meaning is practically the same for the
purpose of taxing the merchandise mentioned in both legal provisions and,
consequently, Ordinances Nos. 2529 and 3000, as amended, are to be considered

as still in full force and effect uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing statute, will
repeal the old statute in its entirety and by the same enactment re-enact all or
certain portions of the preexisting law. Of course, the problem created by this sort
of legislative action involves mainly the effect of the repeal upon rights and
liabilities which accrued under the original statute. Are those rights and liabilities
destroyed or preserved? The authorities are divided as to the effect of
simultaneous repeals and re-enactments. Some adhere to the view that the rights
and liabilities accrued under the repealed act are destroyed, since the statutes
from which they sprang are actually terminated, even though for only a very short
period of time. Others, and they seem to be in the majority, refuse to accept this
view of the situation, and consequently maintain that all rights an liabilities which
have accrued under the original statute are preserved and may be enforced, since
the re-enactment neutralizes the repeal, therefore, continuing the law in force
without interruption. (Crawford-Statutory Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No, 409 introduces a
new and wider concept of taxation and is different from the provisions of Section
2444(m-2) that the former cannot be considered as a substantial re-enactment of
the provisions of the latter. We have quoted above the provisions of section
2444(m-2) of the Revised Administrative Code and We shall now copy hereunder
the provisions of Section 18, subdivision (o) of Republic Act No. 409, which reads
as follows:
(o) To tax and fix the license fee on dealers in general merchandise, including
importers and indentors, except those dealers who may be expressly subject to the
payment of some other municipal tax under the provisions of this section.
Dealers in general merchandise shall be classified as (a) wholesale dealers and
(b) retail dealers. For purposes of the tax on retail dealers, general merchandise
shall be classified into four main classes: namely (1) luxury articles, (2) semi-luxury
articles, (3) essential commodities, and (4) miscellaneous articles. A separate
license shall be prescribed for each class but where commodities of different
classes are sold in the same establishment, it shall not be compulsory for the
owner to secure more than one license if he pays the higher or highest rate of tax
prescribed by ordinance. Wholesale dealers shall pay the license tax as such, as
may be provided by ordinance.
For purposes of this section, the term "General merchandise" shall include poultry
and livestock, agricultural products, fish and other allied products.
60
The only essential difference that We find between these two provisions that may
have any bearing on the case at bar, is that, while subsection (m-2) prescribes that
the combined total tax of any dealer or manufacturer, or both, enumerated under
subsections (m-1) and (m-2), whether dealing in one or all of the articles
mentioned therein,shall not be in excess of P500 per annum, the corresponding
section 18, subsection (o) of Republic Act No. 409, does not contain any limitation
as to the amount of tax or license fee that the retail dealer has to pay per annum.
Hence, and in accordance with the weight of the authorities above referred to that
maintain that "all rights and liabilities which have accrued under the original statute
are preserved and may be enforced, since the reenactment neutralizes the repeal,
therefore continuing the law in force without interruption", We hold that the
questioned ordinances of the City of Manila are still in force and effect.
spoken of as a profession of faith to an active power that binds and elevates man
to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has reference to one's views of his
relations to His Creator and to the obligations they impose of reverence to His
being and character, and obedience to His Will (Davis vs. Beason, 133 U.S., 342).
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious information.
Any restraints of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent". (Taada and Fernando
on the Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the
license fee herein involved is imposed upon appellant for its distribution and sale of
bibles and other religious literature:
Plaintiff, however, argues that the questioned ordinances, to be valid, must first be
approved by the President of the Philippines as per section 18, subsection (ii) of
Republic Act No. 409, which reads as follows:
In the case of Murdock vs. Pennsylvania, it was held that an ordinance requiring
that a license be obtained before a person could canvass or solicit orders for
goods, paintings, pictures, wares or merchandise cannot be made to apply to
members of Jehovah's Witnesses who went about from door to door distributing
literature and soliciting people to "purchase" certain religious books and
pamphlets, all published by the Watch Tower Bible & Tract Society. The "price" of
the books was twenty-five cents each, the "price" of the pamphlets five cents each.
It was shown that in making the solicitations there was a request for additional
"contribution" of twenty-five cents each for the books and five cents each for the
pamphlets. Lesser sum were accepted, however, and books were even donated in
case interested persons were without funds.
(ii) To tax, license and regulate any business, trade or occupation being conducted
within the City of Manila,not otherwise enumerated in the preceding subsections,
including percentage taxes based on gross sales or receipts, subject to the
approval of the PRESIDENT, except amusement taxes.
but this requirement of the President's approval was not contained in section 2444
of the former Charter of the City of Manila under which Ordinance No. 2529 was
promulgated. Anyway, as stated by appellee's counsel, the business of "retail
dealers in general merchandise" is expressly enumerated in subsection (o),
section 18 of Republic Act No. 409; hence, an ordinance prescribing a municipal
tax on said business does not have to be approved by the President to be
effective, as it is not among those referred to in said subsection (ii). Moreover, the
questioned ordinances are still in force, having been promulgated by the Municipal
Board of the City of Manila under the authority granted to it by law.
The question that now remains to be determined is whether said ordinances are
inapplicable, invalid or unconstitutional if applied to the alleged business of
distribution and sale of bibles to the people of the Philippines by a religious
corporation like the American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779, 2821
and 3028, appellant contends that it is unconstitutional and illegal because it
restrains the free exercise and enjoyment of the religious profession and worship
of appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines aforequoted,
guarantees the freedom of religious profession and worship. "Religion has been
On the above facts the Supreme Court held that it could not be said that petitioners
were engaged in commercial rather than a religious venture. Their activities could
not be described as embraced in the occupation of selling books and pamphlets.
Then the Court continued:
"We do not mean to say that religious groups and the press are free from all
financial burdens of government. See Grosjean vs. American Press Co., 297 U.S.,
233, 250, 80 L. ed. 660, 668, 56 S. Ct. 444. We have here something quite
different, for example, from a tax on the income of one who engages in religious
activities or a tax on property used or employed in connection with activities. It is
one thing to impose a tax on the income or property of a preacher. It is quite
another to exact a tax from him for the privilege of delivering a sermon. The tax
imposed by the City of Jeannette is a flat license tax, payment of which is a
condition of the exercise of these constitutional privileges. The power to tax the
exercise of a privilege is the power to control or suppress its enjoyment. . . . Those
who can tax the exercise of this religious practice can make its exercise so costly
as to deprive it of the resources necessary for its maintenance. Those who can tax
the privilege of engaging in this form of missionary evangelism can close all its
doors to all those who do not have a full purse. Spreading religious beliefs in this
ancient and honorable manner would thus be denied the needy. . . .
61
It is contended however that the fact that the license tax can suppress or control
this activity is unimportant if it does not do so. But that is to disregard the nature of
this tax. It is a license tax a flat tax imposed on the exercise of a privilege
granted by the Bill of Rights . . . The power to impose a license tax on the exercise
of these freedom is indeed as potent as the power of censorship which this Court
has repeatedly struck down. . . . It is not a nominal fee imposed as a regulatory
measure to defray the expenses of policing the activities in question. It is in no way
apportioned. It is flat license tax levied and collected as a condition to the pursuit of
activities whose enjoyment is guaranteed by the constitutional liberties of press
and religion and inevitably tends to suppress their exercise. That is almost
uniformly recognized as the inherent vice and evil of this flat license tax."
Nor could dissemination of religious information be conditioned upon the approval
of an official or manager even if the town were owned by a corporation as held in
the case of Marsh vs. State of Alabama (326 U.S. 501), or by the United States
itself as held in the case of Tucker vs. Texas (326 U.S. 517). In the former case the
Supreme Court expressed the opinion that the right to enjoy freedom of the press
and religion occupies a preferred position as against the constitutional right of
property owners.
"When we balance the constitutional rights of owners of property against those of
the people to enjoy freedom of press and religion, as we must here, we remain
mindful of the fact that the latter occupy a preferred position. . . . In our view the
circumstance that the property rights to the premises where the deprivation of
property here involved, took place, were held by others than the public, is not
sufficient to justify the State's permitting a corporation to govern a community of
citizens so as to restrict their fundamental liberties and the enforcement of such
restraint by the application of a State statute." (Taada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National
Internal Revenue Code, provides:
SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. The following
organizations shall not be taxed under this Title in respect to income received by
them as such
(e) Corporations or associations organized and operated exclusively for religious,
charitable, . . . or educational purposes, . . .: Provided, however, That the income
of whatever kind and character from any of its properties, real or personal, or from
any activity conducted for profit, regardless of the disposition made of such
income, shall be liable to the tax imposed under this Code;
Appellant's counsel claims that the Collector of Internal Revenue has exempted
the plaintiff from this tax and says that such exemption clearly indicates that the act
of distributing and selling bibles, etc. is purely religious and does not fall under the
above legal provisions.
It may be true that in the case at bar the price asked for the bibles and other
religious pamphlets was in some instances a little bit higher than the actual cost of
the same but this cannot mean that appellant was engaged in the business or
occupation of selling said "merchandise" for profit. For this reason We believe that
the provisions of City of Manila Ordinance No. 2529, as amended, cannot be
applied to appellant, for in doing so it would impair its free exercise and enjoyment
of its religious profession and worship as well as its rights of dissemination of
religious beliefs.
With respect to Ordinance No. 3000, as amended, which requires the obtention the
Mayor's permit before any person can engage in any of the businesses, trades or
occupations enumerated therein, We do not find that it imposes any charge upon
the enjoyment of a right granted by the Constitution, nor tax the exercise of
religious practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427, this
point was elucidated as follows:
An ordinance by the City of Griffin, declaring that the practice of distributing either
by hand or otherwise, circulars, handbooks, advertising, or literature of any kind,
whether said articles are being delivered free, or whether same are being sold
within the city limits of the City of Griffin, without first obtaining written permission
from the city manager of the City of Griffin, shall be deemed a nuisance and
punishable as an offense against the City of Griffin, does not deprive defendant of
his constitutional right of the free exercise and enjoyment of religious profession
and worship, even though it prohibits him from introducing and carrying out a
scheme or purpose which he sees fit to claim as a part of his religious system.
It seems clear, therefore, that Ordinance No. 3000 cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No. 2529 of
the City of Manila, as amended, is not applicable to plaintiff-appellant and
defendant-appellee is powerless to license or tax the business of plaintiff Society
involved herein for, as stated before, it would impair plaintiff's right to the free
exercise and enjoyment of its religious profession and worship, as well as its rights
of dissemination of religious beliefs, We find that Ordinance No. 3000, as amended
is also inapplicable to said business, trade or occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We hereby
reverse the decision appealed from, sentencing defendant return to plaintiff the
sum of P5,891.45 unduly collected from it. Without pronouncement as to costs. It is
so ordered.
62
[A.M. No. P-02-1651. August 4, 2003]
ALEJANDRO
ESTRADA, complainant, vs.
ESCRITOR, respondent.
SOLEDAD
S.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where
man stands accountable to an authority higher than the state. To be held on
balance are the states interest and the respondents religious freedom. In this
highly sensitive area of law, the task of balancing between authority and liberty is
most delicate because to the person invoking religious freedom, the consequences
of the case are not only temporal. The task is not made easier by the American
origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses
for in the United States, there is probably no more intensely controverted area of
constitutional interpretation than the religion clauses.[1] The U.S. Supreme Court
itself has acknowledged that in this constitutional area, there is considerable
internal inconsistency in the opinions of the Court.[2] As stated by a professor of
law, (i)t is by now notorious that legal doctrines and judicial decisions in the area
of religious freedom are in serious disarray. In perhaps no other area of
constitutional law have confusion and inconsistency achieved such undisputed
sovereignty.[3] Nevertheless, this thicket is the only path to take to conquer the
mountain of a legal problem the case at bar presents. Both the penetrating and
panoramic view this climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom question arose in an
administrative case involving only one person does not alter the paramount
importance of the question for the constitution commands the positive protection
by government of religious freedom -not only for a minority, however small- not
only for a majority, however large- but for each of us.[4]
I. Facts
The facts of the case will determine whether respondent will prevail in her
plea of religious freedom. It is necessary therefore to lay down the facts in detail,
careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, requesting for an investigation of rumors
that respondent Soledad Escritor, court interpreter in said court, is living with a man
not her husband. They allegedly have a child of eighteen to twenty years
old. Estrada is not personally related either to Escritor or her partner and is a
resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the
charge against Escritor as he believes that she is committing an immoral act that
tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth
as to the veracity of the allegation and challenged Estrada to appear in the open
and prove his allegation in the proper forum.[6] Judge Caoibes set a preliminary
conference on October 12, 2000. Escritor moved for the inhibition of Judge
Caoibes from hearing her case to avoid suspicion and bias as she previously filed
an administrative complaint against him and said case was still pending in the
Office of the Court Administrator (OCA). Escritors motion was denied. The
preliminary conference proceeded with both Estrada and Escritor in
attendance. Estrada confirmed that he filed the letter-complaint for immorality
against Escritor because in his frequent visits to the Hall of Justice of Las Pias
City, he learned from conversations therein that Escritor was living with a man not
her husband and that she had an eighteen to twenty-year old son by this
man. This prompted him to write to Judge Caoibes as he believed that employees
of the judiciary should be respectable and Escritors live-in arrangement did not
command respect.[7]
Respondent Escritor testified that when she entered the judiciary in 1999,
she was already a widow, her husband having died in 1998. [9] She admitted that
she has been living with Luciano Quilapio, Jr. without the benefit of marriage for
twenty years and that they have a son. But as a member of the religious sect
known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society,
their conjugal arrangement is in conformity with their religious beliefs. In fact, after
ten years of living together, she executed on July 28, 1991 a Declaration of
Pledging Faithfulness, viz:
[8]
DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio,
Jr., as my mate in marital relationship; that I have done all within my ability to
obtain legal recognition of this relationship by the proper public authorities and that
it is because of having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and before all
persons to be held to and honored in full accord with the principles of Gods
Word. I will continue to seek the means to obtain legal recognition of this
63
relationship by the civil authorities and if at any future time a change in

circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar pledge on the same day.[11] Both
pledges were executed in Atimonan, Quezon and signed by three witnesses. At
the time Escritor executed her pledge, her husband was still alive but living with
another woman. Quilapio was likewise married at that time, but had been
separated in fact from his wife. During her testimony, Escritor volunteered to
present members of her congregation to confirm the truthfulness of their
Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary
and considered her identification of her signature and the signature of Quilapio
sufficient authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L.
Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court
Administrator Zenaida N. Elepao, directed Escritor to comment on the charge
against her. In her comment, Escritor reiterated her religious congregations
approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state
with candor that there is no truth as to the veracity of same allegation. Included
herewith are documents denominated as Declaration of Pledging Faithfulness
(Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital
relationship with the witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH God
and before all persons to be held to and honored in full accord with the principles
of Gods Word.
xxx
Macedas investigation, Escritor again testified that her congregation allows her
conjugal arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain the basis of
her congregations belief and practice regarding her conjugal arrangement. Escritor
started living with Quilapio twenty years ago when her husband was still alive but
living with another woman. She met this woman who confirmed to her that she
was living with her (Escritors) husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also
testified. He had been a presiding minister since 1991 and in such capacity is
aware of the rules and regulations of their congregation. He explained the import
of and procedure for executing a Declaration of Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you
cite some particular rules and regulations in your congregation?
A:
Well, we of course, talk to the persons with regards (sic) to all the
parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q: What is that document?

A:
Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of

faithfulness, who are suppose (sic) to execute this document?
A:
This must be signed, the document must be signed by the elders of

the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with

this document?
A:
xxx
xxx
Actually, sir, the signing of that document, ah, with the couple has
consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on record
before God and man that they are faithful to each other. As if that
relation is validated by God.
Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch . . . to which undersigned believes to be a high authority in relation to her
case.[13]
Q: From your explanation, Minister, do you consider it a pledge or a

document between the parties, who are members of the
congregation?
Deputy Court Administrator Christopher O. Lock recommended that the case

be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las
Pias City for investigation, report and recommendation. In the course of Judge
Q: And what does pledge mean to you?
A:
It is a pledge and a document. It is a declaration, pledge of a (sic)

pledge of faithfulness.
64
A:
It means to me that they have contracted, let us say, I am the one

who contracted with the opposite member of my congregation,
opposite sex, and that this document will give us the right to a
marital relationship.
Q: So, in short, when you execute a declaration of pledge of

faithfulness, it is a preparation for you to enter a marriage?
A:
Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or

living under the same roof?
A:
Well, the Pledge of faithfulness document is (sic) already approved

as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the

contracting parties have the right to cohabit?
A:
Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in
the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that
verse of the Bible, Jesus said that everyone divorcing his wife,
except on account of fornication, makes her a subject for adultery,
and whoever marries a divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza

Congregation in Las Pias, in May 2001. The declarations having been executed
in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal
circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered comments of the
elders therein, and requested a copy of their declarations. The Almanza
Congregation assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower Central
office. They were executed in the usual and approved form prescribed by the
Watch Tower Bible and Tract Society which was lifted from the article, Maintaining
Marriage in Honor Before God and Men, [16] in the March 15, 1977 issue of the
Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs
Witnesses congregation and is binding within the congregation all over the world
except in countries where divorce is allowed. The Jehovahs congregation
requires that at the time the declarations are executed, the couple cannot secure
the civil authorities approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the couples
marital status before giving imprimatur to the conjugal arrangement. The
execution of the declaration finds scriptural basis in Matthew 5:32 that when the
spouse commits adultery, the offended spouse can remarry. The marital status of
the declarants and their respective spouses commission of adultery are
investigated before the declarations are executed. Thus, in the case of Escritor, it
is presumed that the Atimonan Congregation conducted an investigation on her
marital status before the declaration was approved and the declaration is valid
everywhere, including the Almanza Congregation. That Escritors and Quilapios
declarations were approved are shown by the signatures of three witnesses, the
elders in the Atimonan Congregation. Salazar confirmed from the congregations
branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal
impediment to marry on her part, her mate is still not capacitated to remarry. Thus,
their declarations remain valid. Once all legal impediments for both are lifted, the
couple can already register their marriage with the civil authorities and the validity
of the declarations ceases. The elders in the congregations can then solemnize
their marriage as authorized by Philippine law. In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.[17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovahs Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
presented the original copy of the magazine article entitled, Maintaining Marriage
Before God and Men to which Escritor and Minister Salazar referred in their
testimonies. The article appeared in the March 15, 1977 issue of
the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo,
President of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovahs Witnesses congregations which also distribute them to
the public.[18]
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the relationship
between respondent Escritor and Quilapio is valid and binding in their own
religious congregation, the Jehovahs Witnesses. Complainant Estrada adds
however, that the effect of the relationship to Escritors administrative liability must
likewise be determined. Estrada argued, through counsel, that the Declaration of
Pledging Faithfulness recognizes the supremacy of the proper public authorities
such that she bound herself to seek means to . . . legalize their union. Thus,
even assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation and serves
only the internal purpose of displaying to the rest of the congregation that she and
her mate are a respectable and morally upright couple. Their religious belief and
practice, however, cannot override the norms of conduct required by law for
government employees. To rule otherwise would create a dangerous precedent as
65
those who cannot legalize their live-in relationship can simply join the Jehovahs
Witnesses congregation and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion, the
Jehovahs Witnesses. She quoted portions of the magazine article entitled,
Maintaining Marriage Before God and Men, in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the
respondent and her mate greatly affect the administrative liability of
respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of the
proper public authorities in the marriage arrangement. However, it is helpful to
understand the relative nature of Caesars authority regarding marriage. From
country to country, marriage and divorce legislation presents a multitude of
different angles and aspects. Rather than becoming entangled in a confusion of
technicalities, the Christian, or the one desiring to become a disciple of Gods Son,
can be guided by basic Scriptural principles that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that
ones present relationship, or the relationship into which he or she contemplates
entering, is one that could meet with Gods approval, or whether in itself, it violates
the standards of Gods Word. Take, for example, the situation where a man lives
with a wife but also spends time living with another woman as a concubine. As
long as such a state of concubinage prevails, the relationship of the second
woman can never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so. The only right course
is cessation of the relationship. Similarly with an incestuous relationship with a
member of ones immediate family, or a homosexual relationship or other such
situation condemned by Gods Word. It is not the lack of any legal validation that
makes such relationships unacceptable; they are in themselves unscriptural and
hence, immoral. Hence, a person involved in such a situation could not make any
kind of Declaration of Faithfulness, since it would have no merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a second principle
to consider is that one should do all one can to establish the honorableness of
ones marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such
step should now be taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil validation as a
recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of
Gods Word, and if one has done all that can reasonably be done to have it
recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has been
noted, the extreme slowness of official action may make accomplishing of legal
steps a matter of many, many years of effort. Or it may be that the costs represent
a crushingly heavy burden that the individual would need years to be able to
meet. In such cases, the declaration pledging faithfulness will provide the
congregation with the basis for viewing the existing union as honorable while the
individual continues conscientiously to work out the legal aspects to the best of his
ability.
Keeping in mind the basic principles presented, the respondent as a Minister of
Jehovah God, should be able to approach the matter in a balanced way, neither
underestimating nor overestimating the validation offered by the political
state. She always gives primary concern to Gods view of the union. Along with
this, every effort should be made to set a fine example of faithfulness and devotion
to ones mate, thus, keeping the marriage honorable among all. Such course will
bring Gods blessing and result to the honor and praise of the author of marriage,
Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the investigating judge that
complainants Memorandum came from Judge Caoibes chambers [21] whom she
claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by testimonial and
documentary evidence. He also noted that (b)y strict Catholic standards, the livein relationship of respondent with her mate should fall within the definition of
immoral conduct, to wit: that which is willful, flagrant, or shameless, and which
shows a moral indifference to the opinion of the good and respectable members of
the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He
pointed out, however, that the more relevant question is whether or not to exact
from respondent Escritor, a member of Jehovahs Witnesses, the strict moral
standards of the Catholic faith in determining her administrative responsibility in the
case at bar.[22] The investigating judge acknowledged that religious freedom is a
fundamental right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at p.
270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby
recommended the dismissal of the complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court Administrator
(DCA) Lock and with the approval of Court Administrator Presbitero Velasco,
concurred with the factual findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA Lock stressed that although
Escritor had become capacitated to marry by the time she joined the judiciary as
her husband had died a year before, it is due to her relationship with a married
man, voluntarily carried on, that respondent may still be subject to disciplinary
66
action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et al.[25] that
court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve
the good name and integrity of the court of justice, DCA Lock found Escritors
defense of freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months and one day
without pay with a warning that a repetition of a similar act will be dealt with more
severely in accordance with the Civil Service Rules.[26]
husband does not constitute disgraceful and immoral conduct for which she should
be held administratively liable. While not articulated by respondent, she invokes
religious freedom under Article III, Section 5 of the Constitution, which
provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
II. Issue
IV. Old World Antecedents of the American Religion Clauses
Whether or not respondent should be found guilty of the administrative
charge of gross and immoral conduct. To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondents right to religious freedom
should carve out an exception from the prevailing jurisprudence on illicit relations
for which government employees are held administratively liable.
III. Applicable Laws

Respondent is charged with committing gross and immoral conduct under
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which
provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law and
after due process.
(b) The following shall be grounds for disciplinary action:
xxx
xxx
xxx
(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in laymans terms, invokes the
religious beliefs and practices and moral standards of her religion, the Jehovahs
Witnesses, in asserting that her conjugal arrangement with a man not her legal
To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the Old
World. One cannot understand, much less intelligently criticize the approaches of
the courts and the political branches to religious freedom in the recent past in the
United States without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.[27] This fresh look at
the religion clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was marked by
religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a custom
violated a taboo which would then bring upon him the wrathful vengeance of a
superhuman mysterious power.[28] Distinction between the religious and nonreligious would thus have been meaningless to him. He sought protection from all
kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the
same person. The head of the clan or the Old Man of the tribe or the king
protected his wards against both human and superhuman enemies. In time, the
king not only interceded for his people with the divine powers, but he himself was
looked upon as a divine being and his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary between
human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to require the
full-time services of a special priest class. This saw the birth of the social and
communal problem of the competing claims of the king and priest. Nevertheless,
from the beginning, the king and not the priest was superior. The head of the tribe
was the warrior, and although he also performed priestly functions, he carried out
these functions because he was the head and representative of the community.[30]
67
There being no distinction between the religious and the secular, the same
authority that promulgated laws regulating relations between man and man
promulgated laws concerning mans obligations to the supernatural. This authority
was the king who was the head of the state and the source of all law and who only
delegated performance of rituals and sacrifice to the priests. The Code of
Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury,
and other crimes; regulated the fees of surgeons and the wages of masons and
tailors and prescribed rules for inheritance of property; [31] and also catalogued the
gods and assigned them their places in the divine hierarchy so as to put
Hammurabis own god to a position of equality with existing gods. [32] In sum, the
relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the
dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe
the relation of the Hebrew state with the Mosaic religion: theocracy. The authority
and power of the state was ascribed to God.[34] The Mosaic creed was not merely
regarded as the religion of the state, it was (at least until Saul) the state
itself. Among the Hebrews, patriarch, prophet, and priest preceded king and
prince. As man of God, Moses decided when the people should travel and when
to pitch camp, when they should make war and when peace. Saul and David were
made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of
Hammurabi, the Mosaic code combined civil laws with religious mandates, but
unlike the Hammurabi Code, religious laws were not of secondary importance. On
the contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or using
false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as
an engine to advance the purposes of the state. Hammurabi unified Mesopotamia
and established Babylon as its capital by elevating its city-god to a primary position
over the previous reigning gods.[35] Moses, on the other hand, capitalized on the
natural yearnings of the Hebrew slaves for freedom and independence to further
Gods purposes. Liberation and Exodus were preludes to Sinai and the receipt of
the Divine Law. The conquest of Canaan was a preparation for the building of the
temple and the full worship of God.[36]
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion in
western civilization, but equally, the future of the relationship between religion and
state in the west. This fact is acknowledged by many writers, among whom is
Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to compulsion
and persecution in the realm of religion. Ancient religions were regarded as
confined to each separate people believing in them, and the question of

change from one religious belief to another did not arise. It was not until an
exclusive fellowship, that the questions of proselytism, change of belief and liberty
of religion arose.[37] (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the state. The
Law of God as transmitted through Moses and his successors was the whole of
government.
With Saul, however, the state rose to be the rival and ultimately, the master,
of religion. Saul and David each received their kingdom from Samuel the prophet
and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul
disobeyed and even sought to slay Samuel the prophet of God. [38] Under Solomon,
the subordination of religion to state became complete; he used religion as an
engine to further the states purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed the claim
of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome
which engaged in emperor-worship. When Augustus became head of the Roman
state and the priestly hierarchy, he placed religion at a high esteem as part of a
political plan to establish the real religion of pre-Christian Rome - the worship of
the head of the state. He set his great uncle Julius Caesar among the gods, and
commanded that worship of Divine Julius should not be less than worship of
Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of
the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the
Christians dogmatic exclusiveness prevented them from paying homage to
publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was hatred of the human race,
placing them in the same category as pirates and brigands and other enemies of
mankind who were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire and
make its administration more efficient. But the closely-knit hierarchically controlled
church presented a serious problem, being a state within a state over which he had
no control. He had two options: either to force it into submission and break its
power or enter into an alliance with it and procure political control over it. He opted
for force and revived the persecution, destroyed the churches, confiscated sacred
books, imprisoned the clergy and by torture forced them to sacrifice. [42] But his
efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the
68
empire, in issuing an edict of toleration to Christians on condition that nothing is

done by them contrary to discipline.[43] A year later, after Galerius died,
Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a
document of monumental importance in the history of religious liberty. It provided
that liberty of worship shall not be denied to any, but that the mind and will of
every individual shall be free to manage divine affairs according to his own choice.
(emphasis supplied) Thus, all restrictive statutes were abrogated and it was
enacted that every person who cherishes the desire to observe the Christian
religion shall freely and unconditionally proceed to observe the same without let or
hindrance. Furthermore, it was provided that the same free and open power to
follow their own religion or worship is granted also to others, in accordance with the
tranquillity of our times, in order that every person may have free opportunity to
worship the object of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of unifying
his complex empire. Within seven years after the Edict of Milan, under the
emperors command, great Christian edifices were erected, the clergy were freed
from public burdens others had to bear, and private heathen sacrifices were
forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed church
councils, and enforced unity of belief and practice. Until recently the church had
been the victim of persecution and repression, but this time it welcomed the states
persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was
not easy. It was a constant struggle of one claiming dominance over the other. In
time, however, after the collapse and disintegration of the Roman Empire, and
while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable
and universal power. Not surprisingly, therefore, it claimed not merely
equality but superiority over the secular states. This claim, symbolized by
Pope Leos crowning of Charlemagne, became the churchs accepted principle of
its relationship to the state in the Middle Ages. As viewed by the church, the union
of church and state was now a union of the state in the church. The rulers of the
states did not concede to this claim of supremacy. Thus, while Charlemagne
received his crown from the Pope, he himself crowned his own son as successor
to nullify the inference of supremacy.[45] The whole history of medieval Europe
was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established, the purpose of
which was the discovery and extermination of heresy. Accused heretics were
tortured with the approval of the church in the bull Ad extirpanda issued by Pope
Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation
aimed at reforming the Catholic Church and resulting in the establishment of
Protestant churches. While Protestants are accustomed to ascribe to the
Reformation the rise of religious liberty and its acceptance as the principle
governing the relations between a democratic state and its citizens, history shows
that it is more accurate to say that the same causes that gave rise to the
Protestant revolution also resulted in the widespread acceptance of the principle of
religious liberty, and ultimately of the principle of separation of church and
state.[46] Pleas for tolerance and freedom of conscience can without doubt be
found in the writings of leaders of the Reformation. But just as Protestants living in
the countries of papists pleaded for toleration of religion, so did the papists that
lived where Protestants were dominant. [47] Papist and Protestant governments
alike accepted the idea of cooperation between church and state and regarded as
essential to national unity the uniformity of at least the outward manifestations of
religion.[48]Certainly, Luther, leader of the Reformation, stated that neither pope,
nor bishop, nor any man whatever has the right of making one syllable binding on
a Christian man, unless it be done with his own consent. [49] But when the tables
had turned and he was no longer the hunted heretic, he likewise stated when he
made an alliance with the secular powers that (h)eretics are not to be disputed
with, but to be condemned unheard, and whilst they perish by fire, the faithful
ought to pursue the evil to its source, and bathe their hands in the blood of the
Catholic bishops, and of the Pope, who is a devil in disguise. [50] To Luther, unity
among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton, Zwingli
and Calvin strongly espoused theocracy or the use of the state as an engine to
further religion. In establishing theocracy in Geneva, Calvin made absence from
the sermon a crime, he included criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote
that (t)he terrible papal edict, the more terrible imperial edict, the imprisonments,
the confiscations, the recantations, the fagots and burnings, all these things I can
see accomplish nothing except to make the evil more widespread. [52] The
minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and
the Friends of the Quakers founded by George Fox in the 17th century, endorsed
the supremacy and freedom of the individual conscience. They regarded religion
as outside the realm of political governments.[53] The English Baptists proclaimed
that the magistrate is not to meddle with religion or matters of conscience, nor
compel men to this or that form of religion.[54]
may
Thus, out of the Reformation, three rationalizations of church-state relations

be distinguished: the Erastian (after the German doctor Erastus),
69
the theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luthers belief that civic cohesion could not exist without religious
unity so that coercion to achieve religious unity was justified. The second was
founded on ecclesiastical supremacy and the use of state machinery to further
religious interests as promoted by Calvin. The third, which was yet to achieve
ultimate and complete expression in the New World, was discernibly in its
incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.[55] After the Reformation,
Erastianism pervaded all Europe except for Calvins theocratic Geneva. In
England, perhaps more than in any other country, Erastianism was at its
height. To illustrate, a statute was enacted by Parliament in 1678, which, to
encourage woolen trade, imposed on all clergymen the duty of seeing to it that no
person was buried in a shroud made of any substance other than wool. [56] Under
Elizabeth, supremacy of the crown over the church was complete: ecclesiastical
offices were regulated by her proclamations, recusants were fined and imprisoned,
Jesuits and proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism attained
its present doctrinal status.[57] Elizabeth was to be recognized as the only
Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or
causes as temporal. She and her successors were vested, in their dominions, with
all manner of jurisdictions, privileges, and preeminences, in any wise touching or
concerning any spiritual or ecclesiastical jurisdiction.[58] Later, however, Cromwell
established the constitution in 1647 which granted full liberty to all Protestant
sects, but denied toleration to Catholics.[59] In 1689, William III issued the Act
of Toleration which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the Roman
Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when
they were finally permitted to sit in Parliament.[60]
When the representatives of the American states met in Philadelphia in
1787 to draft the constitutional foundation of the new republic, the theocratic
state which had flourished intermittently in Israel, Judea, the Holy Roman Empire
and Geneva was completely gone. The prevailing church-state relationship in
Europe was Erastianism embodied in the system of jurisdictionalism whereby one
faith was favored as the official state-supported religion, but other faiths were
permitted to exist with freedom in various degrees. No nation had yet adopted
as the basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant principle that
neither might be used as an engine to further the policies of the other,
although the principle was in its seminal form in the arguments of some
dissident minorities and intellectual leaders of the Renaissance. The
religious wars of 16th and 17th century Europe were a thing of the past by the
time America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of

America had been filled with turmoil, civil strife, and persecution generated in large
part by established sects determined to maintain their absolute political and
religious supremacy. With the power of government supporting them, at various
times and places, Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another shade of
belief, and all of these had from time to time persecuted Jews. In efforts to force
loyalty to whatever religious group happened to be on top and in league with the
government of a particular time and place, men and women had been fined, cast in
jail, cruelly tortured, and killed. Among the offenses for which these punishments
had been inflicted were such things as speaking disrespectfully of the views of
ministers of government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and tithes to
support them.[61]
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States Constitution was
adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.[62]
In sum, this history shows two salient features: First, with minor exceptions,
the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of
the Prince of Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to promote
secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religions
invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its
birth in American constitutional democracy and in human history.[63]
V. Factors Contributing to the Adoption

of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglicandominated England, established many of the American colonies. British thought
pervaded these colonies as the immigrants brought with them their religious and
political ideas from England and English books and pamphlets largely provided
70
their cultural fare.[64] But although these settlers escaped from Europe to be freed
from bondage of laws which compelled them to support and attend government
favored churches, some of these settlers themselves transplanted into American
soil the oppressive practices they escaped from. The charters granted by the
English Crown to the individuals and companies designated to make the laws
which would control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to support or
attend.[65] At one time, six of the colonies established a state religion. Other
colonies, however, such as Rhode Island and Delaware tolerated a high degree of
religious diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths.[66]
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a number of
interdependent practical and ideological factors contributed in bringing it
forth. Among these were the English Act of Toleration of 1689, the multiplicity of
sects, the lack of church affiliation on the part of most Americans, the rise of
commercial intercourse, the exigencies of the Revolutionary War, the WilliamsPenn tradition and the success of their experiments, the writings of Locke, the
social contract theory, the Great Awakening, and the influence of European
rationalism and deism.[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in the
colonies. With an Erastian justification, English lords chose to forego protecting
what was considered to be the true and eternal church of a particular time in order
to encourage trade and commerce. The colonies were large financial investments
which would be profitable only if people would settle there. It would be difficult to
engage in trade with persons one seeks to destroy for religious belief, thus
tolerance was a necessity. This tended to distract the colonies from their
preoccupations over their religion and its exclusiveness, encouraging them to
think less of the Church and more of the State and of commerce. [68] The diversity
brought about by the colonies open gates encouraged religious freedom and nonestablishment in several ways. First, as there were too many dissenting sects to
abolish, there was no alternative but to learn to live together. Secondly, because of
the daily exposure to different religions, the passionate conviction in the exclusive
rightness of ones religion, which impels persecution for the sake of ones religion,
waned. Finally, because of the great diversity of the sects, religious uniformity was
not possible, and without such uniformity, establishment could not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there was a
scarcity of adherents. Only about four percent of the entire population of the
country had a church affiliation at the time the republic was founded. [70] This might
be attributed to the drifting to the American colonies of the skepticism that
characterized European Enlightenment.[71] Economic considerations might have
also been a factor. The individualism of the American colonist, manifested in the
multiplicity of sects, also resulted in much unaffiliated religion which treated religion
as a personal non-institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who were not
connected with any church were not likely to persecute others for similar
independence nor accede to compulsory taxation to support a church to which they
did not belong.[72]
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of Toleration
of 1689. In England, this Act conferred on Protestant dissenters the right to hold
public services subject to registration of their ministers and places of worship.
[73]
Although the toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it nevertheless was of
some influence to the American experiment. [74] Even then, for practical
considerations, concessions had to be made to other dissenting churches to
ensure their cooperation in the War of Independence which thus had a unifying
effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid18th century, an evangelical religious revival originating in New England, caused a
break with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties of the
individual conscience and its answerability exclusively to God. Thus, although they
had no quarrel with orthodox Christian theology as in fact they were
fundamentalists, this group became staunch advocates of separation of church
and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a community of
Baptists, Quakers and other nonconformists. In this colony, religious freedom was
not based on practical considerations but on the concept of mutual independence
of religion and government. In 1663, Rhode Island obtained a charter from the
British crown which declared that settlers have it much on their heart to hold forth
a livelie experiment that a most flourishing civil state may best be maintained . . .
with full libertie in religious concernments. [76] In Williams pamphlet, The Bloudy
Tenent of Persecution for cause of Conscience, discussed in a Conference
between Truth and Peace,[77]he articulated the philosophical basis for his argument
of religious liberty. To him, religious freedom and separation of church and state
did not constitute two but only one principle. Religious persecution is wrong
because it confounds the Civil and Religious and because States . . . are proved
essentially Civil. The power of true discerning the true fear of God is not one of
the powers that the people have transferred to Civil Authority.[78] Williams Bloudy
Tenet is considered an epochal milestone in the history of religious freedom and
the separation of church and state.[79]
71
William Penn, proprietor of the land that became Pennsylvania, was also an
ardent advocate of toleration, having been imprisoned for his religious convictions
as a member of the despised Quakers. He opposed coercion in matters of
conscience because imposition, restraint and persecution for conscience sake,
highly invade the Divine prerogative. Aside from his idealism, proprietary interests
made toleration in Pennsylvania necessary. He attracted large numbers of settlers
by promising religious toleration, thus bringing in immigrants both from the
Continent and Britain. At the end of the colonial period, Pennsylvania had the
greatest variety of religious groups. Penn was responsible in large part for the
Concessions and agreements of the Proprietors, Freeholders, and inhabitants of
West Jersey, in America, a monumental document in the history of civil liberty
which provided among others, for liberty of conscience.[80]The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition started by
the leaders of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and
freedom.[81] The Constitutional fathers who convened in Philadelphia in 1787, and
Congress and the states that adopted the First Amendment in 1791 were very
familiar with and strongly influenced by the successful examples of Rhode Island
and Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also contributed
to the American experiment. The social contract theory popularized by Locke
was so widely accepted as to be deemed self-evident truth in Americas
Declaration of Independence. With the doctrine of natural rights and equality set
forth in the Declaration of Independence, there was no room for religious
discrimination. It was difficult to justify inequality in religious treatment by a new
nation that severed its political bonds with the English crown which violated the
self-evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in arguing
against establishment, putting emphasis on religion as a natural right that is
entirely personal and not within the scope of the powers of a political body. That
Locke and the social contract theory were influential in the development of
religious freedom and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every
one the better to preserve himself, his liberty and property. The power of the
society, or Legislature constituted by them, can never be supposed to extend any
further than the common good, but is obliged to secure every ones property. To
give laws, to receive obedience, to compel with the sword, belong to none but the
civil magistrate; and on this ground we affirm that the magistrates power extends
not to establishing any articles of faith or forms of worship, by force of laws; for
laws are of no force without penalties. The care of souls cannot belong to the
civil magistrate, because his power consists only in outward force; but pure
and saving religion consists in the inward persuasion of the mind, without
which nothing can be acceptable to God.[84] (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or Christ
did not desire that government have that jurisdiction (render unto Caesar that
which is Caesars; my kingdom is not of this world) and to the rationalist, the
power to act in the realm of religion was not one of the powers conferred on
government as part of the social contract.[85]
Not only the social contract theory drifted to the colonies from Europe. Many
of the leaders of the Revolutionary and post-revolutionary period were also
influenced by European deism and rationalism, [86] in general, and some were
apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among
others were reckoned to be among the Unitarians or Deists. Unitarianism and
Deism contributed to the emphasis on secular interests and the relegation of
historic theology to the background.[87] For these men of the enlightenment, religion
should be allowed to rise and fall on its own, and the state must be protected from
the clutches of the church whose entanglements has caused intolerance and
corruption as witnessed throughout history.[88] Not only the leaders but also the
masses embraced rationalism at the end of the eighteenth century, accounting for
the popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in Virginia
contributed significantly to the American experiment of the First
Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and state. [90] Many
factors contributed to this, among which were that half to two-thirds of the
population were organized dissenting sects, the Great Awakening had won many
converts, the established Anglican Church of Virginia found themselves on the
losing side of the Revolution and had alienated many influential laymen with its
identification with the Crowns tyranny, and above all, present in Virginia was a
group of political leaders who were devoted to liberty generally,[91] who had
accepted the social contract as self-evident, and who had been greatly influenced
by Deism and Unitarianism. Among these leaders were Washington, Patrick
Henry, George Mason, James Madison and above the rest, Thomas
Jefferson.
The first major step towards separation in Virginia was the adoption of the
following provision in the Bill of Rights of the states first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and therefore, all men are equally entitled to the free exercise of
religion according to the dictates of conscience; and that it is the mutual duty
72
of all to practice Christian forbearance, love, and charity towards each other.
[92]
(emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first legislative
assembly with petitions for abolition of establishment. While the majority of the
population were dissenters, a majority of the legislature were churchmen. The
legislature compromised and enacted a bill in 1776 abolishing the more oppressive
features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from
worship and requiring the dissenters to contribute to the support of the
establishment.[93] But the dissenters were not satisfied; they not only wanted
abolition of support for the establishment, they opposed the compulsory support of
their own religion as others. As members of the established church would not
allow that only they would pay taxes while the rest did not, the legislature enacted
in 1779 a bill making permanent the establishments loss of its exclusive status and
its power to tax its members; but those who voted for it did so in the hope that a
general assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every person to
enroll his name with the county clerk and indicate which society for the purpose of
Religious Worship he wished to support. On the basis of this list, collections were
to be made by the sheriff and turned over to the clergymen and teachers
designated by the religious congregation. The assessment of any person who
failed to enroll in any society was to be divided proportionately among the
societies.[94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the
Christian Religion was introduced requiring all persons to pay a moderate tax or
contribution annually for the support of the Christian religion, or of some Christian
church, denomination or communion of Christians, or for some form of Christian
worship.[95] This likewise aroused the same opposition to the 1779 bill. The most
telling blow against the 1784 bill was the monumental Memorial and
Remonstrance against Religious Assessments written by Madison and widely
distributed before the reconvening of legislature in the fall of 1785. [96] It stressed
natural rights, the governments lack of jurisdiction over the domain of
religion, and the social contract as the ideological basis of separation while
also citing practical considerations such as loss of population through
migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that religion, or
the duty which we owe to our creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force or violence. The religion,
then, of every man, must be left to the conviction and conscience of every
man; and it is the right of every man to exercise it as these may dictate. This
right is, in its nature, an unalienable right. It is unalienable, because the
opinions of men, depending only on the evidence contemplated in their own minds,
cannot follow the dictates of other men; it is unalienable, also, because what is
here a right towards men, is a duty towards the creator. It is the duty of every
man to render the creator such homage, and such only as he believes to be
acceptable to him; this duty is precedent, both in order of time and degree of
obligation, to the claims of civil society. Before any man can be considered
as a member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters into any
subordinate association, must always do it with a reservation of his duty to the
general authority, much more must every man who becomes a member of any
particular civil society do it with the saving his allegiance to the universal
sovereign.[97] (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by
the great number of signatures appended to the Memorial. The assessment bill
was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill
of Jefferson which had not been voted on, the Bill for Establishing Religious
Freedom, and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to
influence it by temporal punishments or burdens, or by civil incapacitations, tend
not only to beget habits of hypocrisy and meanness, and are a departure from the
plan of the Holy Author of our religion, who being Lord both of body and mind, yet
chose not to propagate it by coercions on either, as was in his Almighty power to
do;
xxx
xxx
xxx
Be it therefore enacted by the General Assembly. That no man shall be compelled

to frequent or support any religious worship, place or ministry whatsoever, nor shall
be enforced, restrained, molested or burdened in his body or goods, nor shall
otherwise suffer on account of his religious opinions or beliefs, but that all men
shall be free to profess, and by argument to maintain, their opinions in
matters of religion, and that the same shall in no wise diminish, enlarge or affect
their civil capacities.[98] (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually
ended any thought of a general or particular establishment in Virginia. [99] But the
passage of this law was obtained not only because of the influence of the great
leaders in Virginia but also because of substantial popular support coming mainly
from the two great dissenting sects, namely the Presbyterians and the
73
Baptists. The former were never established in Virginia and an underprivileged

minority of the population. This made them anxious to pull down the existing state
church as they realized that it was impossible for them to be elevated to that
privileged position. Apart from these expediential considerations, however, many
of the Presbyterians were sincere advocates of separation[100] grounded on
rational, secular arguments and to the language of natural religion. [101] Influenced
by Roger Williams, the Baptists, on the other hand, assumed that religion was
essentially a matter of concern of the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation with the social order.[102] To them, the
Holy Ghost was sufficient to maintain and direct the Church without governmental
assistance and state-supported religion was contrary ti the spirit of the Gospel.
[103]
Thus, separation was necessary.[104] Jeffersons religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme Court
has not just once acknowledged that the provisions of the First Amendment of
the U.S. Constitution had the same objectives and intended to afford the
same protection against government interference with religious liberty as the
Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government
had no power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be deduced from
the prohibition of any religious test for federal office in Article VI of the Constitution
and the assumed lack of power of Congress to act on any subject not expressly
mentioned in the Constitution.[105] However, omission of an express guaranty of
religious freedom and other natural rights nearly prevented the ratification of the
Constitution.[106] In the ratifying conventions of almost every state, some objection
was expressed to the absence of a restriction on the Federal Government as
regards legislation on religion.[107] Thus, in 1791, this restriction was made explicit
with the adoption of the religion clauses in the First Amendment as they are
worded to this day, with the first part usually referred to as the Establishment
Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof.
VI.
Religion Clauses in the United States:

Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment
religion clauses comes an equally broad disagreement as to what these clauses
specifically require, permit and forbid. No agreement has been reached by those
who have studied the religion clauses as regards its exact meaning and the paucity
of records in Congress renders it difficult to ascertain its meaning.
[108]
Consequently, the jurisprudence in this area is volatile and fraught with
inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s, religion
played a primary role in social life - i.e., family responsibilities, education, health
care, poor relief, and other aspects of social life with significant moral dimension while government played a supportive and indirect role by maintaining conditions in
which these activities may be carried out by religious or religiously-motivated
associations. Today, government plays this primary role and religion plays the
supportive role.[109] Government runs even family planning, sex education, adoption
and foster care programs.[110] Stated otherwise and with some exaggeration,
(w)hereas two centuries ago, in matters of social life which have a significant
moral dimension, government was the handmaid of religion, today religion, in its
social responsibilities, as contrasted with personal faith and collective worship, is
the handmaid of government.[111] With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly, there may
be inadvertent collisions between purely secular government actions and religion
clause values.[112]
Parallel to this expansion of government has been the expansion of religious
organizations in population, physical institutions, types of activities undertaken, and
sheer variety of denominations, sects and cults. Churches run day-care centers,
retirement homes, hospitals, schools at all levels, research centers, settlement
houses, halfway houses for prisoners, sports facilities, theme parks, publishing
houses and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the line
between many types of activities undertaken by religious groups and secular
activities. Churches have also concerned themselves with social and political
issues as a necessary outgrowth of religious faith as witnessed in pastoral letters
on war and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these developments have
brought about substantial entanglement of religion and government. Likewise, the
growth in population density, mobility and diversity has significantly changed the
environment in which religious organizations and activities exist and the laws
affecting them are made. It is no longer easy for individuals to live solely among
their own kind or to shelter their children from exposure to competing values. The
result is disagreement over what laws should require, permit or prohibit; [113] and
agreement that if the rights of believers as well as non-believers are all to be
74
respected and given their just due, a rigid, wooden interpretation of the religion
clauses that is blind to societal and political realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones
arise from a government action which purposely aids or inhibits religion. These
cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of
intent to aid or inhibit religion.[115] The more difficult religion clause cases involve
government action with a secular purpose and general applicability which
incidentally or inadvertently aids or burdens religious exercise. In Free Exercise
Clause cases, these government actions are referred to as those with
burdensome effect on religious exercise even if the government action is not
religiously motivated.[116] Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that are
threatened and burdened turn to the courts for protection. [117] Most of these free
exercise claims brought to the Court are for exemption, not invalidation of the
facially neutral law that has a burdensome effect.[118]
With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for purposes
of interpreting the religion clauses has also been modified to suit current
realities. Defining religion is a difficult task for even theologians, philosophers and
moralists cannot agree on a comprehensive definition. Nevertheless, courts must
define religion for constitutional and other legal purposes. [119] It was in the 1890
case of Davis v. Beason[120] that the United States Supreme Courtfirst had
occasion to define religion, viz:
The term religion has reference to ones views of his relations to his
Creator, and to the obligations they impose of reverence for his being and
character, and of obedience to his will. It is often confounded with the cultus or
form of worship of a particular sect, but is distinguishable from the latter. The First
Amendment to the Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free exercise thereof,
was intended to allow everyone under the jurisdiction of the United States to
entertain such notions respecting his relations to his Maker and the duties they
impose as may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not injurious to the
equal rights of others, and to prohibit legislation for the support of any religious
tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular attitudes in
1890.
In 1944, the Court stated in United States v. Ballard[122] that the free
exercise of religion embraces the right to maintain theories of life and of death
and of the hereafter which are rank heresy to followers of the orthodox
faiths.[123] By the 1960s, American pluralism in religion had flourished to
include non-theistic creeds from Asia such as Buddhism and Taoism.[124]In 1961,
the Court, in Torcaso v. Watkins,[125] expanded the term religion to non-theistic
beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four
years later, the Court faced a definitional problem in United States v.
Seeger[126] which involved four men who claimed conscientious objector status in
refusing to serve in the Vietnam War. One of the four, Seeger, was not a member
of any organized religion opposed to war, but when specifically asked about his
belief in a Supreme Being, Seeger stated that you could call (it) a belief in a
Supreme Being or God. These just do not happen to be the words that I use.
Forest Peter, another one of the four claimed that after considerable meditation
and reflection on values derived from the Western religious and philosophical
tradition, he determined that it would be a violation of his moral code to take
human life and that he considered this belief superior to any obligation to the
state. The Court avoided a constitutional question by broadly interpreting not the
Free Exercise Clause, but the statutory definition of religion in the Universal
Military Training and Service Act of 1940 which exempt from combat anyone who,
by reason of religious training and belief, is conscientiously opposed to
participation in war in any form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the designation
God, was merely clarifying the meaning of religious tradition and belief so as to
embrace all religions and to exclude essentially political, sociological, or
philosophical views (and) the test of belief in relation to a Supreme Being is
whether a given belief that is sincere and meaningful occupies a place in the
life of its possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious
objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of
religion in Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four criteria to
qualify as religion under the First Amendment. First, there must be belief in God
or some parallel belief that occupies a central place in the believers life. Second,
the religion must involve a moral code transcending individual belief, i.e., it cannot
be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the
court must not inquire into the truth or reasonableness of the belief. [127] Fourth,
there must be some associational ties,[128] although there is also a view that
religious beliefs held by a single person rather than being part of the teachings of
any kind of group or sect are entitled to the protection of the Free Exercise Clause.
[129]
Defining religion is only the beginning of the difficult task of deciding religion
clause cases. Having hurdled the issue of definition, the court then has to
75
draw lines to determine what is or is not permissible under the religion

clauses. In this task, the purpose of the clauses is the yardstick. Their purpose
is singular; they are two sides of the same coin.[130] In devoting two clauses to
religion, the Founders were stating not two opposing thoughts that would cancel
each other out, but two complementary thoughts that apply in different ways in
different circumstances.[131] The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the free
exercise of religion and the limitation on the power of government to establish, aid,
and support religion - is the protection and promotion of religious liberty.
[132]
The end, the goal, and the rationale of the religion clauses is this liberty.
[133]
Both clauses were adopted to prevent government imposition of religious
orthodoxy; the great evil against which they are directed is government-induced
homogeneity.[134] The Free Exercise Clause directly articulates the common
objective of the two clauses and the Establishment Clause specifically addresses
a form of interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a propensity.[135] In
other words, free exercise is the end, proscribing establishment is a necessary
means to this end to protect the rights of those who might dissent from whatever
religion is established.[136] It has even been suggested that the sense of the First
Amendment is captured if it were to read as Congress shall make no law
respecting an establishment of religion or otherwise prohibiting the free exercise
thereof because the fundamental and single purpose of the two religious clauses
is to avoid any infringement on the free exercise of religions [137] Thus, the
Establishment Clause mandates separation of church and state to protect each
from the other, in service of the larger goal of preserving religious liberty. The
effect of the separation is to limit the opportunities for any religious group to
capture the state apparatus to the disadvantage of those of other faiths, or of no
faith at all[138] because history has shown that religious fervor conjoined with state
power is likely to tolerate far less religious disagreement and disobedience from
those who hold different beliefs than an enlightened secular state. [139] In the words
of the U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of
our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured religious
liberty from the invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause cases,
the line the court draws to ensure that government does not establish and
instead remains neutral toward religion is not absolutely straight. Chief
Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these provisions, which
is to insure that no religion be sponsored or favored, none commanded and none
inhibited.[141] (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,[142] even

opposing, strains of jurisprudence on the religion clauses: separation (in the form
of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. A view of the
landscape of U.S. religion clause cases would be useful in understanding these
two strains, the scope of protection of each clause, and the tests used in religious
clause cases. Most of these cases are cited as authorities in Philippine religion
clause cases.
A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case
of Reynolds v. United States.[143] This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and that
the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in jurisprudence
would be called the belief-action test which allows absolute protection to belief
but not to action. It cited Jeffersons Bill Establishing Religious Freedom which,
according to the Court, declares the true distinction between what properly
belongs to the Church and what to the State. [144] The bill, making a distinction
between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on supposition
of their ill tendency, is a dangerous fallacy which at once destroys all religious
liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against peace
and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was
left free to reach actions which were in violation of social duties or
subversive of good order. . .
76
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a necessary part of
religious worship, would it be seriously contended that the civil government under
which he lived could not interfere to prevent a sacrifice? Or if a wife religiously
believed it was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her carrying her
belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the
United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law of
the land, and in effect to permit every citizen to become a law unto
himself. Government could exist only in name under such circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by the Free
Exercise Clause from regulating individual religious beliefs, but placed no
restriction on the ability of the state to regulate religiously motivated conduct. It
was logical for belief to be accorded absolute protection because any statute
designed to prohibit a particular religious belief unaccompanied by any conduct
would most certainly be motivated only by the legislatures preference of a
competing religious belief. Thus, all cases of regulation of belief would amount to
regulation of religion for religious reasons violative of the Free Exercise
Clause. On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislatures religious
preferences. Any burden on religion that results from state regulation of conduct
arises only when particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These burdens are thus
usually inadvertent and did not figure in the belief-action test. As long as the
Court found that regulation address action rather than belief, the Free Exercise
Clause did not pose any problem. [147] The Free Exercise Clause thus gave no
protection against the proscription of actions even if considered central to a religion
unless the legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown
by cases where the Court upheld other laws which burdened the practice of the
Mormon religion by imposing various penalties on polygamy such as the Davis
case and Church of Latter Day Saints v. United States.[149] However, more than
a century since Reynolds was decided, the Court has expanded the scope of
protection from belief to speech and conduct. But while the belief-action
test has been abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance though as
there remains an absolute prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual religious

convictions and beliefs[151] and proscribes government from questioning a persons
beliefs or imposing penalties or disabilities based solely on those beliefs. The
Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v.
Watkins,[152] a unanimous Court struck down a state law requiring as a qualification
for public office an oath declaring belief in the existence of God. The protection
also allows courts to look into the good faith of a person in his belief, but
prohibits inquiry into the truth of a persons religious beliefs. As held
in United States v. Ballard,[153] (h)eresy trials are foreign to the Constitution. Men
may believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest degree of
protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the Court
struck down a state law prohibiting door-to-door solicitation for any religious or
charitable cause without prior approval of a state agency. The law was challenged
by Cantwell, a member of the Jehovahs Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior approval
necessary was held to be a censorship of religion prohibited by the Free Exercise
Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields the tenets of one may seem the rankest error to his
neighbor. To persuade others to his point of view, the pleader, as we know, resorts
to exaggeration, to vilification of men who have been, or are, prominent in church
or state, and even to false statement. But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right conduct on
the part of citizens of a democracy.[155]
Cantwell took
a
step
forward
from
the
protection
afforded
by
the Reynolds case in that it not only affirmed protection of belief but also freedom
to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the second cannot
be. Conduct remains subject to regulation for the protection of society. . . In every
case, the power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom. (emphasis
supplied)[156]
The Court stated, however, that government had the power to regulate the times,
places, and manner of solicitation on the streets and assure the peace and safety
of the community.
77
Three years after Cantwell, the Court in Douglas v. City of Jeanette,

ruled that police could not prohibit members of the Jehovahs Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens
complained.
In
another
case
likewise
involving
the
Jehovahs
Witnesses, Niemotko v. Maryland,[158] the Court unanimously held unconstitutional
a city councils denial of a permit to the Jehovahs Witnesses to use the city park
for a public meeting. The city councils refusal was because of the unsatisfactory
answers of the Jehovahs Witnesses to questions about Catholicism, military
service, and other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be limited to
certain areas to maintain the safe and orderly flow of pedestrians and vehicular
traffic as held in the case of Heffron v. International Society for Krishna
Consciousness.[159]
[157]
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this
realm depends on the character of the action and the government rationale for
regulating the action.[160] The Mormons religious conduct of polygamy is an
example of unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again involving Mormons, where the Court
held, viz: (c)rime is not the less odious because sanctioned by what any particular
sect may designate as religion.[161]
The belief-action test in Reynolds and Davis proved unsatisfactory. Under
this test, regulation of religiously dictated conduct would be upheld no matter how
central the conduct was to the exercise of religion and no matter how insignificant
was the governments non-religious regulatory interest so long as the government
is proscribing action and not belief. Thus, the Court abandoned the
simplistic belief-action distinction and instead recognized the deliberateinadvertent distinction, i.e., the distinction between deliberate state interference
of religious exercise for religious reasons which was plainly unconstitutional and
governments inadvertent interference with religion in pursuing some secular
objective.[162] In the 1940 case ofMinersville School District v. Gobitis, [163] the
Court upheld a local school board requirement that all public school students
participate in a daily flag salute program, including the Jehovahs Witnesses who
were forced to salute the American flag in violation of their religious training, which
considered flag salute to be worship of a graven image. The Court recognized
that the general requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity, which was the
basis of national security. Thus, although the Court was already aware of the
deliberate-inadvertent distinction in government interference with religion, it
continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the states non-religious objectives, and no
matter how many alternative approaches were available to the state to pursue its
objectives with less impact on religion, so long as government was acting in pursuit
of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette[164] which involved a similar set of facts and issue. The Court recognized
that saluting the flag, in connection with the pledges, was a form of utterance and
the flag salute program was a compulsion of students to declare a belief. The
Court ruled that compulsory unification of opinions leads only to the unanimity of
the graveyard and exempt the students who were members of the Jehovahs
Witnesses from saluting the flag. A close scrutiny of the case, however, would
show that it was decided not on the issue of religious conduct as the Court said,
(n)or does the issue as we see it turn on ones possession of particular religious
views or the sincerity with which they are held. While religion supplies appellees
motive for enduring the discomforts of making the issue in this case, many citizens
who do not share these religious views hold such a compulsory rite to
infringe constitutional liberty of the individual. (emphasis supplied)[165] The
Court pronounced, however, that, freedoms of speech and of press, of assembly,
and of worship . . . are susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully protect.[166] The
Court seemed to recognize the extent to which its approach
in Gobitis subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and public
welfare objectives of the majority in the legislature. This time, even inadvertent
interference with religion must pass judicial scrutiny under the Free Exercise
Clause with only grave and immediate danger sufficing to override religious
liberty. But the seeds of this heightened scrutiny would only grow to a full flower in
the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren
Court began the modern free exercise jurisprudence.[168] A two-part balancing
test was established inBraunfeld v. Brown[169] where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs
required them to observe another day as the Sabbath and abstain from
commercial activity on Saturday. Chief Justice Warren, writing for the Court, found
that the law placed a severe burden on Sabattarian retailers. He noted, however,
that since the burden was the indirect effect of a law with a secular purpose, it
would violate the Free Exercise Clause only if there were alternative ways of
achieving the states interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld only if the
state showed that it was pursuing an overriding secular goal by the means which
imposed the least burden on religious practices.[170] The Court found that the state
had an overriding secular interest in setting aside a single day for rest, recreation
78
and tranquility and there was no alternative means of pursuing this interest but to
require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963
case of Sherbert v. Verner.[171] This test was similar to the two-part balancing
test in Braunfeld,[172] but this latter test stressed that the state interest was not
merely any colorable state interest, but must be paramount and compelling
to override the free exercise claim. In this case, Sherbert, a Seventh Day
Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious grounds. Her claim
was denied. She sought recourse in the Supreme Court. In laying down the
standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is to
withstand appellants constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of
her constitutional rights of free exercise, or because any incidental burden
on the free exercise of appellants religion may be justified by a compelling
state interest in the regulation of a subject within the States constitutional
power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83
S Ct 328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation. Thomas v. Collins,
323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.[174] The Court found that there
was no such compelling state interest to override Sherberts religious liberty. It
added that even if the state could show that Sherberts exemption would pose
serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice placed
the same kind of burden upon the free exercise of religion as would a fine
imposed against (her) for her Saturday worship. This germinal case
of Sherbert firmly established the exemption doctrine, [175] viz:
It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as
early as Braunfeld), the Court moved from the doctrine that inadvertent or
incidental interferences with religion raise no problem under the Free Exercise
Clause to the doctrine that such interferences violate the Free Exercise Clause in
the absence of a compelling state interest - the highest level of constitutional
scrutiny short of a holding of a per se violation. Thus, the problem posed by
the belief-action test and the deliberate-inadvertent distinction was addressed.
[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas v.
Review Board[177] and Hobbie v. Unemployment Appeals Division,[178] for
example, the Court reiterated the exemption doctrine and held that in the absence
of a compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to
unwillingness to depart from religious practices and beliefs that conflicted with job
requirements. But not every governmental refusal to allow an exemption from a
regulation which burdens a sincerely held religious belief has been invalidated,
even though strict or heightened scrutiny is applied. In United States v. Lee,
[179]
for instance, the Court using strict scrutiny and referring to Thomas, upheld the
federal governments refusal to exempt Amish employers who requested for
exemption from paying social security taxes on wages on the ground of religious
beliefs. The Court held that (b)ecause the broad public interest in maintaining a
sound tax system is of such a high order, religious belief in conflict with the
payment of taxes affords no basis for resisting the tax. [180] It reasoned that unlike
in Sherbert, an exemption would significantly impair governments achievement of
its objective - the fiscal vitality of the social security system; mandatory
participation is indispensable to attain this objective. The Court noted that if an
exemption were made, it would be hard to justify not allowing a similar exemption
from general federal taxes where the taxpayer argues that his religious beliefs
require him to reduce or eliminate his payments so that he will not contribute to the
governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with
religious practices. Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of religion. [181]
79
Heightened scrutiny was also used in the 1972 case of Wisconsin v.

Yoder[182] where the Court upheld the religious practice of the Old Order Amish
faith over the states compulsory high school attendance law. The Amish parents
in this case did not permit secular education of their children beyond the eighth
grade. Chief Justice Burger, writing for the majority, held,viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice of a
legitimate religious belief, it must appear either that the State does not deny
the free exercise of religious belief by its requirement, or that there is a state
interest of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had
specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying these
two provisions relating to religion have been zealously protected, sometimes even
at the expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that activities
of individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety, and
general welfare, or the Federal government in the exercise of its delegated
powers . . .But to agree that religiously grounded conduct must often be
subject to the broad police power of the State is not to deny that there are
areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their actions in refusing to send
their children to the public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . [183]
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon
Department
of
Human
Resources
v.
Smith,[184] the
sharply
divided Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope of
protection of religious freedom afforded by the First Amendment. In this case, the
well-established practice of the Native American Church, a sect outside the Judeo-
Christian mainstream of American religion, came in conflict with the states interest
in prohibiting the use of illicit drugs. Oregons controlled substances statute made
the possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social service
agency in Oregon. Along with other church members, Smith and Black ingested
peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith and Black
citing their use of peyote as job-related misconduct. They applied for
unemployment compensation, but the Oregon Employment Appeals Board denied
their application as they were discharged for job-related misconduct. Justice
Scalia, writing for the majority, ruled that if prohibiting the exercise of
religion . . . is . . . merely the incidental effect of a generally applicable and
otherwise valid law, the First Amendment has not been offended. In other
words, the Free Exercise Clause would be offended only if a particular religious
practice were singled out for proscription. The majority opinion relied heavily on
the Reynolds case and in effect, equated Oregons drug prohibition law with the
anti-polygamy statute inReynolds. The relevant portion of the majority opinion
held, viz:
We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions
from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord
with the vast majority of our precedents, is to hold the test inapplicable to
such challenges. The governments ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry out other aspects of
public policy, cannot depend on measuring the effects of a governmental action on
a religious objectors spiritual development. . . .To make an individuals
obligation to obey such a law contingent upon the laws coincidence with his
religious beliefs except where the States interest is compelling permitting him, by virtue of his beliefs, to become a law unto himself, . . . contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys
rejection of the compelling governmental interest test was the most controversial
part of the decision. Although she concurred in the result that the Free Exercise
Clause had not been offended, she sharply criticized the majority opinion as a
dramatic departure from well-settled First Amendment jurisprudence. . . and . . .
(as) incompatible with our Nations fundamental commitment to religious
liberty. This portion of her concurring opinion was supported by Justices Brennan,
80
Marshall and Blackmun who dissented from the Courts decision. Justice
OConnor asserted that (t)he compelling state interest test effectuates the
First Amendments command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required
by clear and compelling government interest of the highest order. Justice
Blackmun registered a separate dissenting opinion, joined by Justices Brennan
and Marshall. He charged the majority with mischaracterizing precedents and
overturning. . . settled law concerning the Religion Clauses of our
Constitution. He pointed out that the Native American Church restricted and
supervised the sacramental use of peyote. Thus, the state had no significant
health or safety justification for regulating the sacramental drug use. He also
observed that Oregon had not attempted to prosecute Smith or Black, or any
Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that Oregons interest in enforcing its drug laws against
religious use of peyote (was) not sufficiently compelling to outweigh respondents
right to the free exercise of their religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The
Courts standard in Smith virtually eliminated the requirement that the government
justify with a compelling state interest the burdens on religious exercise imposed
by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in
several respects and has been criticized as exhibiting a shallow understanding of
free exercise jurisprudence.[185] First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. A
deliberate regulatory interference with minority religious freedom is the worst form
of this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an
interference with the minoritys religious freedom. If the regulation had instead
restricted the majoritys religious practice, the majoritarian legislative process
would in all probability have modified or rejected the regulation. Thus, the
imposition of the political majoritys non-religious objectives at the expense of the
minoritys religious interests implements the majoritys religious viewpoint at the
expense of the minoritys. Second, government impairment of religious liberty
would most often be of the inadvertent kind as in Smith considering the political
culture where direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford protection to
inadvertent interference, it would be left almost meaningless. Third, the ReynoldsGobitis-Smith doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental religious convictions of
an individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the
state to effectively pursue its objective without serious inadvertent impact on
religion.[186]
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of mainstream
religious groups against smaller, more peripheral groups who lack legislative clout,
[187]
contrary to the original theory of the First Amendment. [188] Undeniably, claims
for judicial exemption emanate almost invariably from relatively politically
powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.[189] Thus, the Smith decision elicited much negative public reaction
especially from the religious community, and commentaries insisted that the Court
was allowing the Free Exercise Clause to disappear.[190] So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels
from substantially burdening a persons free exercise of religion, even if such
burden resulted from a generally applicable rule, unless the government could
demonstrate a compelling state interest and the rule constituted the least restrictive
means of furthering that interest.[191] RFRA, in effect, sought to overturn the
substance of the Smith ruling and restore the status quo prior to Smith. Three
years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared
the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled that
RFRA contradicts vital principles necessary to maintain separation of powers and
the federal balance. It emphasized the primacy of its role as interpreter of the
Constitution and unequivocally rejected, on broad institutional grounds, a direct
congressional challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah[193] which was ruled consistent with the Smith doctrine. This case involved
animal sacrifice of the Santeria, a blend of Roman Catholicism and West African
religions brought to the Carribean by East African slaves. An ordinance made it a
crime to unnecessarily kill, torment, torture, or mutilate an animal in public or
private ritual or ceremony not for the primary purpose of food consumption. The
ordinance came as a response to the local concern over the sacrificial practices of
the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that
the questioned ordinance was not a generally applicable criminal prohibition, but
instead singled out practitioners of the Santeria in that it forbade animal slaughter
only insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and proselytizing
are highly protected but subject to restraints applicable to non-religious speech,
and unconventional religious practice receives less protection; nevertheless
conduct, even if its violates a law, could be accorded protection as shown
in Wisconsin.[194]
B. Establishment Clause
81
The Courts first encounter with the Establishment Clause was in the 1947
case of Everson v. Board of Education.[195] Prior cases had made passing
reference to the Establishment Clause[196] and raised establishment questions but
were decided on other grounds.[197] It was in the Everson case that the U.S.
Supreme Court adopted Jeffersons metaphor of a wall of separation between
church and state as encapsulating the meaning of the Establishment Clause. The
often and loosely used phrase separation of church and state does not appear in
the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the
1878 case of Reynolds v. United States[198] quoted Jeffersons famous letter of
1802 to the Danbury Baptist Association in narrating the history of the religion
clauses, viz:
Believing with you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions, I
contemplate with sovereign reverence that act of the whole American people which
declared that their Legislature should make no law respecting an establishment of
religion or prohibiting the free exercise thereof, thus building a wall of separation
between Church and State.[199] (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as this does
from an acknowledged leader of the advocates of the measure, it may be accepted
almost as an authoritative declaration of the scope and effect of the amendment
thus secured.[200]
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools and prayer
in public schools.[201] InEverson v. Board of Education, for example, the issue
was whether a New Jersey local school board could reimburse parents for
expenses incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children
in public schools and nonprofit private schools, regardless of religion, were entitled
to reimbursement for transportation costs. Justice Hugo Black, writing for a
sharply divided Court, justified the reimbursements on the child benefit theory,
i.e., that the school board was merely furthering the states legitimate interest in
getting children regardless of their religion, safely and expeditiously to and from
accredited schools. The Court, after narrating the history of the First Amendment
in Virginia, interpreted the Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or prefer one religion over
another. Neither can force nor influence a person to go to or remain away from
church against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing religious beliefs
or disbeliefs, for church attendance or non-attendance. No tax in any amount,

large or small, can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or secretly
participate in the affairs of any religious organizations or groups and vice versa. In
the words of Jefferson, the clause against establishment of religion by law
was intended to erect a wall of separation between Church and State. [202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest
breach. New Jersey has not breached it here.[203]
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid
down a three-pronged test inLemon v. Kurtzman[204] in determining the
constitutionality of policies challenged under the Establishment Clause. This case
involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers salaries, textbooks, and instructional
materials in secular subjects and a Rhode Island statute providing salary
supplements to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243,
20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not
foster an excessive entanglement with religion. (Walz v.Tax Commission,
397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis
supplied)[205] Using this test, the Court held that the Pennsylvania statutory
program and Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the Establishment
Clause are the school prayer decisions. Few decisions of the modern Supreme
Court have been criticized more intensely than the school prayer decisions of the
early 1960s.[206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a
New York Board of Regents policy that established the voluntary recitation of a
brief generic prayer by children in the public schools at the start of each school
day. The majority opinion written by Justice Black stated that in this country it is
no part of the business of government to compose official prayers for any group of
the American people to recite as part of a religious program carried on by
government. In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons
that caused many of the early colonists to leave England and seek religious
82
freedom in America. The Court called to mind that the first and most immediate
purpose of the Establishment Clause rested on the belief that a union of
government and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School District v.
Schempp[208] and Murray v. Curlett[209] where the Court struck down the practice
of Bible reading and the recitation of the Lords prayer in the Pennsylvania and
Maryland schools. The Court held that to withstand the strictures of the
Establishment Clause, a statute must have a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from a
recognition of the teachings of history that powerful sects or groups might bring
about a fusion of governmental and religious functions or a concert or dependency
of one upon the other to the end that official support of the State of Federal
Government would be placed behind the tenets of one or of all orthodoxies. This
the Establishment Clause prohibits. And a further reason for neutrality is found in
the Free Exercise Clause, which recognizes the value of religious training,
teaching and observance and, more particularly, the right of every person to freely
choose his own course with reference thereto, free of any compulsion from the
state.[210]
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.[211] On several occasions, constitutional
amendments have been introduced in Congress to overturn the school prayer
decisions. Still, the Court has maintained its position and has in fact reinforced it in
the 1985 case of Wallace v. Jaffree[212] where the Court struck down an Alabama
law that required public school students to observe a moment of silence for the
purpose of meditation or voluntary prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret
the Establishment Clause. Optional religious instruction within public school
premises and instructional time were declared offensive of the Establishment
Clause in the 1948 case of McCollum v. Board of Education,[213] decided just a
year after the seminal Everson case. In this case, interested members of the
Jewish, Roman Catholic and a few Protestant faiths obtained permission from the
Board of Education to offer classes in religious instruction to public school students
in grades four to nine. Religion classes were attended by pupils whose parents
signed printed cards requesting that their children be permitted to attend. The
classes were taught in three separate groups by Protestant teachers, Catholic
priests and a Jewish rabbi and were held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of the school building. The religious
teachers were employed at no expense to the school authorities but they were
subject to the approval and supervision of the superintendent of schools. Students
who did not choose to take religious instruction were required to leave their
classrooms and go to some other place in the school building for their secular
studies while those who were released from their secular study for religious
instruction were required to attend the religious classes. The Court held that the
use of tax-supported property for religious instruction and the close cooperation
between the school authorities and the religious council in promoting religious
education amounted to a prohibited use of tax-established and tax-supported
public school system to aid religious groups spread their faith. The Court rejected
the claim that the Establishment Clause only prohibited government preference of
one religion over another and not an impartial governmental assistance of all
religions. In Zorach v. Clauson,[214] however, the Court upheld released time
programs allowing students in public schools to leave campus upon parental
permission to attend religious services while other students attended study
hall. Justice Douglas, the writer of the opinion, stressed that (t)he First
Amendment does not require that in every and all respects there shall be a
separation
of
Church
and
State. The
Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the
force of the public school was used to promote that instruction. . . We follow the
McCollum case. But we cannot expand it to cover the present released time
program unless separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the religious needs of the
people. We cannot read into the Bill of Rights such a philosophy of hostility to
religion.[215]
In the area of government displays or affirmations of belief, the Court has
given leeway to religious beliefs and practices which have acquired a secular
meaning and have become deeply entrenched in history. For instance,
in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious underpinnings
of the restrictions. Citing the secular purpose of the Sunday closing laws and
treating as incidental the fact that this day of rest happened to be the day of
worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have special
significance as a rest day in this country. People of all religions and people with no
religion regard Sunday as a time for family activity, for visiting friends and relatives,
for later sleeping, for passive and active entertainments, for dining out, and the
like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate
Nebraskas policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers expense. The majority opinion did
83
not rely on the Lemon test and instead drew heavily from history and the
need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative sessions with prayer has
become the fabric of our society. To invoke Divine guidance on a public body
entrusted with making the laws is not, in these circumstances, an establishment
of religion or a step toward establishment; it is simply a tolerable
acknowledgement of beliefs widely held among the people of this
country. As Justice Douglas observed, (w)e are a religious people whose
institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306,
313 [1952])[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
inevitably be embarrassed if it were to attempt to strike down a practice that
occurs in nearly every legislature in the United States, including the U.S.
Congress.[220] That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a citysponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion
hardly employed the Lemon test and again relied on history and the fact that
the creche had become a neutral harbinger of the holiday season for many,
rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt from
local property taxes and their income exempt from federal and state income
taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax
Commissions grant of property tax exemptions to churches as allowed by state
law was challenged by Walz on the theory that this required him to subsidize those
churches indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as
such; rather, it has granted exemptions to all houses of religious worship within a
broad class of property owned by non-profit, quasi-public corporations . . . The
State has an affirmative policy that considers these groups as beneficial and
stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest.[223]
The Court added that the exemption was not establishing religion but sparing the
exercise of religion from the burden of property taxation levied on private profit
institutions[224] and preventing excessive entanglement between state and
religion. At the same time, the Court acknowledged the long-standing practice of
religious tax exemption and the Courts traditional deference to legislative bodies
with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for the government
to exercise . . . this kind of benevolent neutrality toward churches and
religious exercise generally so long as none was favored over others and
none suffered interference.[225] (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions
in the religious clauses area, are but a small fraction of the hundreds of religion
clauses cases that the U.S. Supreme Court has passed upon. Court rulings
contrary to or making nuances of the above cases may be cited. Professor
McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to
lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 79293[1983]), but unconstitutional for a state to set aside a moment of silence in the
schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56
[1985]). It is unconstitutional for a state to require employers to accommodate their
employees work schedules to their sabbath observances (Estate of Thornton v.
Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state
to require employers to pay workers compensation when the resulting
inconsistency between work and sabbath leads to discharge (. . .Sherbert v.
Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give
money to religiously-affiliated organizations to teach adolescents about proper
sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach
them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is
constitutional for the government to provide religious school pupils with books
(Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman
v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson
v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a
field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for statemandated standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance
(Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226]
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation (in the
84
form of strict separation or the tamer version of strict neutrality or

separation) andbenevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with the
separationists, strict or tame.[227] But the accommodationists have also attracted a
number of influential scholars and jurists. [228] The two standards producing two
streams of jurisprudence branch out respectively from the history of the First
Amendment in England and the American colonies and climaxing in Virginia as
narrated in this opinion and officially acknowledged by the Court in Everson, and
from American societal life which reveres religion and practices age-old religious
traditions. Stated otherwise, separation - strict or tame - protects the principle of
church-state separation with a rigid reading of the principle while benevolent
neutrality protects religious realities, tradition and established practice with a
flexible reading of the principle. [229] The latter also appeals to history in support of
its position, viz:
The opposing school of thought argues that the First Congress intended to allow
government support of religion, at least as long as that support did not
discriminate in favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for example, was on the
congressional committee that appointed a chaplain, he declared several national
days of prayer and fasting during his presidency, and he sponsored Jeffersons bill
for punishing Sabbath breakers; moreover, while president, Jefferson allowed
federal support of religious missions to the Indians. . . And so, concludes one
recent book, there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and sponsor,
James Madison, intended that Amendment to create a state of complete
independence between religion and government. In fact, the evidence in the public
documents goes the other way.[230] (emphasis supplied)
To
succinctly
and
poignantly
illustrate
the
historical
basis
of
benevolent neutrality that gives room for accommodation, less than twenty-four
hours after Congress adopted the First Amendments prohibition on laws
respecting an establishment of religion, Congress decided to express its thanks to
God Almighty for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of Thanksgiving and
Prayer. Only two members of Congress opposed the resolution, one on the
ground that the move was a mimicking of European customs, where they made a
mere mockery of thanksgivings, the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout Western
history was acknowledged and the motion was passed without further recorded
discussion.[231] Thus, accommodationists also go back to the framers to ascertain
the meaning of the First Amendment, but prefer to focus on acts rather than
words. Contrary to the claim of separationists that rationalism pervaded America in
the late 19thcentury and that America was less specifically Christian during those
years than at any other time before or since,[232] accommodationaists claim that
American citizens at the time of the Constitutions origins were a remarkably

religious people in particularly Christian terms.[233]
The two streams of jurisprudence - separationist or accommodationist are anchored on a different reading of the wall of separation. The strict
separtionist view holds that Jefferson meant the wall of separation to protect the
state from the church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and anticlericalism of that
philosophic bent.[234] He has often been regarded as espousing Deism or the
rationalistic belief in a natural religion and natural law divorced from its medieval
connection with divine law, and instead adhering to a secular belief in a universal
harmony.[235] Thus, according to this Jeffersonian view, the Establishment Clause
being meant to protect the state from the church, the states hostility towards
religion allows no interaction between the two. [236] In fact, when Jefferson became
President, he refused to proclaim fast or thanksgiving days on the ground that
these are religious exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not receive aid,
whether direct or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on believers. [238] Only the
complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views thus a
strict wall of separation is necessary.[239] Strict separation faces difficulties,
however, as it is deeply embedded in history and contemporary practice that
enormous amounts of aid, both direct and indirect, flow to religion from government
in return for huge amounts of mostly indirect aid from religion. Thus, strict
separationists are caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to.[240]
A tamer
version of
the
strict
separationist
view,
the strict
neutrality or separationist view is largely used by the Court, showing the Courts
tendency to press relentlessly towards a more secular society.[241] It finds basis in
the Everson case where the Court declared that Jeffersons wall of separation
encapsulated the meaning of the First Amendment but at the same time held that
the First Amendment requires the state to be neutral in its relations with groups of
religious believers and non-believers; it does not require the state to be their
adversary. State power is no more to be used so as to handicap religions
than it is to favor them. (emphasis supplied)[242] While the strict neutrality
approach is not hostile to religion, it is strict in holding that religion may not be used
as a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much less
require, accommodation of secular programs to religious belief. [243] Professor
Kurland wrote, viz:
85
The thesis proposed here as the proper construction of the religion clauses of the
first amendment is that the freedom and separation clauses should be read as a
single precept that government cannot utilize religion as a standard for action or
inaction because these clauses prohibit classification in terms of religion either to
confer a benefit or to impose a burden.[244]
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted this
policy of neutrality to prohibit government from acting except for secular purposes
and in ways that have primarily secular effects.[245]
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the public
schools as in Engel andSchempp.[246] The McCollum case prohibiting optional
religious instruction within public school premises during regular class hours also
demonstrates strict neutrality. In these education cases, the Court refused to
uphold the government action as they were based not on a secular but on a
religious purpose. Strict neutrality was also used in Reynolds and Smith which
both held that if government acts in pursuit of a generally applicable law with a
secular purpose that merely incidentally burdens religious exercise, the First
Amendment has not been offended. However, if the strict neutrality standard is
applied in interpreting the Establishment Clause, it could de facto void religious
expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his
concurring opinion in Schempp, strict neutrality could lead to a brooding and
pervasive devotion to the secular and a passive, or even active, hostility to the
religious which is prohibited by the Constitution. [247] Professor Laurence Tribe
commented in his authoritative treatise, viz:
Consequently, the Court has also decided cases employing benevolent

neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the wall of separation associated with Williams,
founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden
and the Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant to protect the
state from the church; instead, the wall is meant to protect the church from the
state,[251] i.e., the garden of the church must be walled in for its own protection
from the wilderness of the world[252] with its potential for corrupting those values
so necessary to religious commitment. [253] Howe called this the theological or
evangelical rationale for church-state separation while the wall espoused by
enlightened statesmen such as Jefferson and Madison, was a political rationale
seeking to protect politics from intrusions by the church. [254] But it has been
asserted that this contrast between the Williams and Jeffersonian positions is more
accurately described as a difference in kinds or styles of religious thinking, not as a
conflict between religious and secular (political); the religious style was biblical
and evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation.[255]
The Williams wall is, however, breached for the church is in the state and so
the remaining purpose of the wall is to safeguard religious liberty. Williams view
would therefore allow for interaction between church and state, but is strict with
regard to state action which would threaten the integrity of religious commitment.
[256]
His conception of separation is not total such that it provides basis for certain
interactions between church and state dictated by apparent necessity or
practicality.[257] This theological view of separation is found in Williams
writings,viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea
of a free exercise clause. The Framers, whatever specific applications they may
have intended, clearly envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion but not, say, of
philosophy or science. The strict neutrality approach all but erases this
distinction. Thus it is not surprising that the Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious classifications.[248]
. . . when they have opened a gap in the hedge or wall of separation between the
garden of the church and the wilderness of the world, God hath ever broke down
the wall itself, removed the candlestick, and made his garden a wilderness, as this
day. And that therefore if He will eer please to restore His garden and paradise
again, it must of necessity be walled in peculiarly unto Himself from the world. . .[258]
The separationist approach, whether strict or tame, is caught in a dilemma

because while the Jeffersonian wall of separation captures the spirit of the
American ideal of church-state separation, in real life church and state are not and
cannot be totally separate.[249] This is all the more true in contemporary times when
both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at
many points.[250]
The general principle deducible from the First Amendment and all that has been
said by the Court is this: that we will not tolerate either governmentally established
religion or governmental interference with religion. Short of those expressly
proscribed governmental acts there is room for play in the joints productive of a
benevolent neutrality which will permit religious exercise to exist without
sponsorship and without interference.[259] (emphasis supplied)
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The Zorach case expressed the doctrine of accommodation,[260] viz:
86
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to each other hostile, suspicious, and even unfriendly. Churches could not be required to pay
even property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their places
of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; so help me God in our courtroom oathsthese and all other references to the Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist
or agnostic could even object to the supplication with which the Court opens each
session: God save the United States and this Honorable Court.
xxx
xxx
xxx
We are a religious people whose institutions presuppose a Supreme

Being. We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our
traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may
not would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen their effective
scope of religious influence.[261] (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion
serves a function essential to the survival of society itself, thus there is no human
society without one or more ways of performing the essential function of
religion. Although for some individuals there may be no felt need for religion and
thus it is optional or even dispensable, for society it is not, which is why there is no
human society without one or more ways of performing the essential function of
religion. Even in ostensibly atheistic societies, there are vigorous underground
religion(s) and surrogate religion(s) in their ideology.[262] As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites
without which society would not continue to exist. At first glance, this seems to be
obvious - scarcely more than to say that an automobile could not exist, as a going
system, without a carburetor. . . Most writers list religion among the functional
prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: There is no known human
society without something which modern social scientists would classify as a
religionReligion is as much a human universal as language.[264]
Benevolent neutrality thus recognizes that religion plays an important role in
the public life of the United States as shown by many traditional government
practices
which,
to strict
neutrality,
pose
Establishment
Clause
questions. Among these are the inscription of In God We Trust on American
currency, the recognition of America as one nation under God in the official
pledge of allegiance to the flag, the Supreme Courts time-honored practice of
opening oral argument with the invocation God save the United States and this
honorable Court, and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.[265] These practices clearly show the preference for one
theological viewpoint -the existence of and potential for intervention by a god - over
the contrary theological viewpoint of atheism. Church and government agencies
also cooperate in the building of low-cost housing and in other forms of poor relief,
in the treatment of alcoholism and drug addiction, in foreign aid and other
government activities with strong moral dimension.[266] The persistence of these de
facto establishments are in large part explained by the fact that throughout history,
the evangelical theory of separation, i.e., Williams wall, has demanded respect for
these de facto establishments.[267] But the separationists have a different
explanation. To characterize these as de jure establishments according to the
principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting
and concurring opinions explain some of these practices as de minimis instances
of government endorsement or as historic governmental practices that have largely
lost their religious significance or at least have proven not to lead the government
into further involvement with religion.[268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of
religion
under
certain
circumstances. Accommodations are government policies that take religion
specifically into account not to promote the governments favored form of religion,
but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate
the exercise of, a persons or institutions religion. As Justice Brennan explained,
the government [may] take religion into accountto exempt, when possible,
from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
87
flourish.[269] (emphasis supplied) Accommodation is forbearance and not

alliance. it does not reflect agreement with the minority, but respect for the conflict
between the temporal and spiritual authority in which the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in that the latter
holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at base a
question of means: Is the freedom of religion best achieved when the government
is conscious of the effects of its action on the various religious practices of its
people, and seeks to minimize interferences with those practices? Or is it best
advanced through a policy of religious blindness - keeping government aloof from
religious practices and issues? An accommodationist holds that it is good public
policy, and sometimes constitutionally required, for the state to make conscious
and deliberate efforts to avoid interference with religious freedom. On the other
hand, the strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy even
at the cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take
the accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the
First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at religion. The government may not establish religion and
neither may government prohibit it. Taken together, the religion clauses can be
read most plausibly as warding off two equal and opposite threats to religious
freedom - government action that promotes the (political) majoritys favored brand
of religion and government action that impedes religious practices not favored by
the majority. Thesubstantive end in view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that government
does not act on the basis of religious bias. On the other hand, strict neutrality
interprets the religion clauses as allowing government to do whatever it desires to
or for religion, as long as it does the same to or for comparable secular
entities. Thus, for example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion. Paradoxically, this
view would make the religion clauses violate the religion clauses, so to speak,
since the religion clauses single out religion by name for special
protection. Second, the accommodationist position best achieves the
purposes of the First Amendment. The principle underlying the First
Amendment is that freedom to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Although
inalienable, it is necessarily limited by the rights of others, including the public right
of peace and good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of the purpose of
the First Amendment requires more than the religion blindness of strict
neutrality. With the pervasiveness of government regulation, conflicts with religious
practices become frequent and intense. Laws that are suitable for secular entities
are sometimes inappropriate for religious entities, thus the government must make
special provisions to preserve a degree of independence for religious entities for
them to carry out their religious missions according to their religious
beliefs. Otherwise, religion will become just like other secular entities subject to
pervasive regulation by majoritarian institutions. Third, the accommodationist
interpretation is particularly necessary to protect adherents of minority
religions from the inevitable effects of majoritarianism, which include
ignorance and indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding
different world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter
because some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so great
and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of
plural traditions, legislators and executive officials are frequently willing to make
such exemptions when the need is brought to their attention, but this may not
always be the case when the religious practice is either unknown at the time of
enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the
religious consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect themselves in
the political arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different faiths
in a pluralistic nation. Without accommodation, many otherwise beneficial laws
would interfere severely with religious freedom. Aside from laws against serving
alcoholic beverages to minors conflicting with celebration of communion,
regulations requiring hard hats in construction areas can effectively exclude Amish
and Sikhs from the workplace, or employment anti-discrimination laws can conflict
with the Roman Catholic male priesthood, among others. Exemptions from such
laws are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. Without exemptions, legislature would be
frequently forced to choose between violating religious conscience of a
segment of the population or dispensing with legislation it considers
beneficial to society as a whole. Exemption seems manifestly more
reasonable than either of the alternative: no exemption or no law.[272]
Benevolent
neutrality gives
room
for
different
kinds
of accommodation: those which are constitutionally compelled, i.e., required by
the Free Exercise Clause; and those which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause.[273] Some Justices of the Supreme Court have also used the
term accommodation to describe government actions that acknowledge or
88
express prevailing religious sentiments of the community such as display of a

religious symbol on public property or the delivery of a prayer at public ceremonial
events.[274] Stated otherwise, using benevolent neutrality as a standard could
result
to
three
situations
of accommodation:those
where accommodation is required, those where it is permissible, and those where
it is prohibited. In the first situation, accommodation is required to preserve free
exercise protections and not unconstitutionally infringe on religious liberty or create
penalties for religious freedom. Contrary to the Smith declaration that free
exercise exemptions are intentional government advancement, these exemptions
merely relieve the prohibition on the free exercise thus allowing the burdened
religious adherent to be left alone. The state must create exceptions to laws of
general applicability when these laws threaten religious convictions or practices in
the absence of a compelling state interest.[275] By allowing such exemptions, the
Free Exercise Clause does not give believers the right or privilege to choose for
themselves to override socially-prescribed decision; it allows them to obey spiritual
rather than temporal authority[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of
rights than duties; more precisely, it is a matter of rights derived from duties. To
deny a person or a community the right to act upon such a duty can be justified
only by appeal to a yet more compelling duty. Of course, those denied will usually
not find the reason for the denial compelling. Because they may turn out to be
right about the duty in question, and because, even if they are wrong, religion
bears witness to that which transcends the political order, such denials should be
rare and painfully reluctant.[277]
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.[278]In these cases of
burdensome effect, the modern approach of the Court has been to apply strict
scrutiny, i.e., to declare the burden as permissible, the Court requires the state to
demonstrate that the regulation which burdens the religious exercise pursues a
particularly important or compelling government goal through the least restrictive
means. If the states objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the
regulation, such an exemption must be given.[279] This approach of the Court on
burdensome effect was only applied since the 1960s. Prior to this time, the Court
took the separationist view that as long as the state was acting in pursuit of nonreligious ends and regulating conduct rather than pure religious beliefs, the Free
Exercise Clause did not pose a hindrance such as in Reynolds.[280] In the second
situation where accommodation is permissible, the state may, but is not required
to, accommodate religious interests. The Walz case illustrates this situation where
the Court upheld the constitutionality of tax exemption given by New York to church
properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that (t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference

mandated by the Free Exercise Clause. [281] The Court held that New York could
have an interest in encouraging religious values and avoiding threats to those
values through the burden of property taxes. Other examples are the Zorach
case allowing released time in public schools andMarsh allowing payment of
legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the
Free Exercise Clause does not mean that all claims for free exercise exemptions
are
valid.[282] An
example
where
accommodation
was
prohibited
is McCollum where the Court ruled against optional religious instruction in the
public school premises.[283] In effect, the last situation would arrive at a strict
neutrality conclusion.
In the first situation where accommodation is required, the approach follows
this basic framework:
If the plaintiff can show that a law or government practice inhibits the free exercise
of his religious beliefs, the burden shifts to the government to demonstrate that the
law or practice is necessary to the accomplishment of some important (or
compelling) secular objective and that it is the least restrictive means of achieving
that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimants
religious denomination. Only beliefs rooted in religion are protected by the Free
Exercise Clause; secular beliefs, however sincere and conscientious, do not
suffice.[284]
In other words, a three-step process (also referred to as the two-step
balancing process supra when the second and third steps are combined) as
in Sherbert is followed in weighing the states interest and religious freedom when
these collide. Three questions are answered in this process. First, (h)as the
statute or government action created a burden on the free exercise of
religion? The courts often look into the sincerity of the religious belief, but
without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of
the claimants belief is ascertained to avoid the mere claim of religious beliefs to
escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court
has considered historical evidence as in Wisconsin where the Amish people had
held a long-standing objection to enrolling their children in ninth and tenth grades
in public high schools. In another case, Dobkin v. District of Columbia, [285] the
Court denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly conducted
business on Saturday. Although it is true that the Court might erroneously deny
89
some claims because of a misjudgment of sincerity, this is not as argument to

reject all claims by not allowing accommodation as a rule. There might be injury to
the particular claimant or to his religious community, but for the most part, the
injustice is done only in the particular case.[286] Aside from the sincerity, the court
may look into the centrality of those beliefs, assessing them not on an objective
basis but in terms of the opinion and belief of the person seeking exemption. In
Wisconsin, for example, the Court noted that the Amish peoples convictions
against becoming involved in public high schools were central to their way of life
and faith. Similarly, in Sherbert, the Court concluded that the prohibition against
Saturday work was a cardinal principle.[287] Professor Lupu puts to task the
person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh custom,
individual conscience should count for more than personal convenience, and
theological principle should be of greater significance than institutional
ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the
individual and within the individuals religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and expansive, recognizing
non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the intensity
and scope of fundamentalist creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state interest to
justify this infringement of religious liberty? In this step, the government has to
establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives
will be undermined if exemptions are granted.[289] The person claiming religious
freedom, on the other hand, will endeavor to show that the interest is not legitimate
or that the purpose, although legitimate, is not compelling compared to
infringement of religious liberty. This step involves balancing, i.e., weighing the
interest of the state against religious liberty to determine which is more compelling
under the particular set of facts. The greater the states interests, the more central
the religious belief would have to be to overcome it. In assessing the state
interest, the court will have to determine the importance of the secular interest and
the extent to which that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by granting
the exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the state? [291] The
analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious
liberties. In Cantwell, for example, the Court invalidated the license requirement
for the door-to-door solicitation as it was a forbidden burden on religious liberty,
noting that less drastic means of insuring peace and tranquility existed. As a
whole, in carrying out the compelling state interest test, the Court should give
careful attention to context, both religious and regulatory, to achieve refined
judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create tensions
that make constitutional law on the subject of religious liberty unsettled, mirroring
the evolving views of a dynamic society.[293]
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and Catholicism
was the state religion under theSpanish Constitution of 1876. Civil authorities
exercised religious functions and the friars exercised civil powers. [294] Catholics
alone enjoyed the right of engaging in public ceremonies of worship. [295] Although
the Spanish Constitution itself was not extended to the Philippines, Catholicism
was also the established church in our country under the Spanish
rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which
was in effect in the Philippines. Some of the offenses in chapter six of the Penal
Code entitled Crimes against Religion and Worship referred to crimes against the
state religion.[296] The coming of the Americans to our country, however, changed
this state-church scheme for with the advent of this regime, the unique American
experiment of separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United
States and Spain on December 10, 1898, the American guarantee of religious
freedom had been extended to the Philippines. The Treaty provided that the
inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of religion. [297]Even the Filipinos
themselves guaranteed religious freedom a month later or on January 22, 1899
upon the adoption of the Malolos Constitution of the Philippine Republic under
General Emilio Aguinaldo. It provided that the State recognizes the liberty and
equality of all religion (de todos los cultos) in the same manner as the separation of
the Church and State. But the Malolos Constitution and government was shortlived as the Americans took over the reigns of government.[298]
90
With the Philippines under the American regime, President McKinley

issued Instructions to the Second Philippine Commission, the body created to take
over the civil government in the Philippines in 1900. The Instructions guaranteed
religious freedom, viz:
the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of

religion in drafting their constitution preparatory to the grant of independence. The
law prescribed that (a)bsolute toleration of religious sentiment shall be secured
and no inhabitant or religious organization shall be molested in person or property
on account of religious belief or mode of worship.[303]
That no law shall be made respecting the establishment of religion or prohibiting

the free exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference shall forever be
allowed ... that no form of religion and no minister of religion shall be forced upon
the community or upon any citizen of the Islands, that, on the other hand, no
minister of religion shall be interfered with or molested in following his calling.[299]
The Constitutional Convention then began working on the 1935

Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the
Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of
December 10, 1898, which first introduced religious toleration in our
country. President McKinleys Instructions to the Second Philippine Commission
reasserted this right which later was incorporated into the Philippine Bill of 1902
and in the Jones Law.[304] In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation between
State and Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the Instructions, the
Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that free exercise and enjoyment of religious worship, without
discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the
complete separation of church and state, and the abolition of all special privileges
and all restrictions theretofor conferred or imposed upon any particular religious
sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with a
restriction against using public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the
free exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference, shall forever be
allowed; and no religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated, applied, donated,
or used, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or for the use, benefit or
support of any priest, preacher, minister, or other religious teachers or dignitary as
such.
This was followed by the Philippine Independence Law or Tydings-McDuffie
Law of 1934 which guaranteed independence to the Philippines and authorized

prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or political
rights.
This provision, borrowed from the Jones Law, was readily approved by the
Convention.[305] In his speech as Chairman of the Committee on Bill of Rights,
Delegate Laurel said that modifications in phraseology of the Bill of Rights in the
Jones Law were avoided whenever possible because the principles must remain
couched in a language expressive of their historical background, nature, extent
and limitations as construed and interpreted by the great statesmen and jurists that
vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution contained
an almost identical provision on religious freedom in the Bill of Rights in Article IV,
Section 8, viz:
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
This time, however, the General Provisions in Article XV added in Section 15 that
(t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill of
Rights in Article III, Section 5.[307]Likewise, the provision on separation of church
91
and state was included verbatim in the 1987 Constitution, but this time as a
principle in Section 6, Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of the First
Amendment of the U.S. Constitution when it was included in the 1935 Bill of
Rights, it is not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature, extent and
limitations of these clauses. However, a close scrutiny of these cases would also
reveal that while U.S. jurisprudence on religion clauses flows into two main
streams of interpretation - separation and benevolent neutrality - the wellspring of Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of religion. Religion is derived from
the Middle English religioun, from Old French religion, from Latin religio, vaguely
referring to a bond between man and the gods. [308] This pre-Christian term for the
cult and rituals of pagan Rome was first Christianized in the Latin translation of the
Bible.[309] While the U.S. Supreme Court has had to take up the challenge of
defining the parameters and contours of religion to determine whether a nontheistic belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue. In Philippine jurisprudence, religion, for purposes
of the religion clauses, has thus far been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined
religion as a profession of faith to an active power that binds and elevates man
to his Creator. Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila, [311] a case involving the Free
Exercise clause. The latter also cited the American case of Davis in defining
religion, viz: (i)t has reference to ones views of his relations to His Creator and to
the obligations they impose of reverence to His being and character and obedience
to His Will. The Beason definition, however, has been expanded in U.S.
jurisprudence to include non-theistic beliefs.
practice of ones religion. The Free Exercise Clause principally guarantees

voluntarism, although the Establishment Clause also assures voluntarism by
placing the burden of the advancement of religious groups on their intrinsic merits
and not on the support of the state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education [313] is instructive on
the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by ones
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into speech and
action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff American
Bible Society was a foreign, non-stock, non-profit, religious missionary corporation
which sold bibles and gospel portions of the bible in the course of its ministry. The
defendant City of Manila required plaintiff to secure a mayors permit and a
municipal license as ordinarily required of those engaged in the business of
general merchandise under the citys ordinances. Plaintiff argued that this
amounted to religious censorship and restrained the free exercise and enjoyment
of religious profession, to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
1. Free Exercise Clause
The constitutional guaranty of the free exercise and enjoyment of religious

profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justifiedlike other restraints of
freedom of expression on the grounds that there is a clear and present danger
of any substantive evil which the State has the right to prevent. (Tanada and
Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis
supplied)
Freedom of choice guarantees the liberty of the religious conscience and

prohibits any degree of compulsion or burden, whether direct or indirect, in the
This was the Courts maiden unequivocal affirmation of the clear and
present danger rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.[315]The case did not clearly show, however,
92
whether the Court proceeded to apply the test to the facts and issues of the case,
i.e., it did not identify the secular value the government regulation sought to
protect, whether the religious speech posed a clear and present danger to this or
other secular value protected by government, or whether there was danger but it
could not be characterized as clear and present. It is one thing to apply the test
and find that there is no clear and present danger, and quite another not to apply
the test altogether.
Instead, the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of selling
said merchandise for profit. To add, the Court, citing Murdock v. Pennsylvania,
[316]
ruled that applying the ordinance requiring it to secure a license and pay a
license fee or tax would impair its free exercise of religious profession and worship
and its right of dissemination of religious beliefs as the power to tax the exercise
of a privilege is the power to control or suppress its enjoyment. Thus, inAmerican
Bible Society, the clear and present danger rule was laid down but it was not
clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also
involving the sale of religious books, the Court distinguished the American Bible
Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society
challenged the validity of the registration provisions of the Value Added Tax (VAT)
Law as a prior restraint. The Court held, however, that the fixed amount of
registration fee was not imposed for the exercise of a privilege like a license tax
whichAmerican Bible Society ruled was violative of religious freedom. Rather,
the registration fee was merely an administrative fee to defray part of the cost of
registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization, [318] the Court also declared
prefatorily that the Free Exercise of Religion Clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious materials by a
religious organization. In the Courts resolution of the motion for reconsideration
of theTolentino decision, the Court noted that the burden on religious freedom
caused by the tax was just similar to any other economic imposition that might
make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,[319] this time involving conduct expressive of religious
belief colliding with a rule prescribed in accordance with law. In this case,
petitioners were members of the Jehovahs Witnesses. They challenged a
Department Order issued by the Secretary of Education implementing Republic Act
No. 1265 which prescribed compulsory flag ceremonies in all public schools. In
violation of the Order, petitioners children refused to salute the Philippine flag, sing
the national anthem, or recite the patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise Clause, petitioners claimed
that their refusal was on account of their religious belief that the Philippine flag is
an image and saluting the same is contrary to their religious belief. The Court
stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of
society and with the law, then the former must yield to the latter. The Government
steps in and either restrains said exercise or even prosecutes the one exercising
it. (emphasis supplied)[320]
The Court then proceeded to determine if the acts involved constituted a religious
ceremony in conflict with the beliefs of the petitioners with the following
justification:
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or sect,
much less to a follower of said group or sect; otherwise, there would be confusion
and misunderstanding for there might be as many interpretations and meaning to
be given to a certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all sincerity and
good faith, may want to give to such ritual or ceremony.[321]
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the national
anthem as it speaks only of love of country, patriotism, liberty and the glory of
suffering and dying for it. The Court upheld the questioned Order and the
expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government policies,
the wisdom and legality of laws, even the correctness of judicial decisions and
decrees; but in the field of love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in which they are
mutually and vitally interested, for to them, they mean national existence and
survival as a nation or national extinction.[322]
In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette
case, viz:
The constitutional protection of religious freedom x x x gave religious equality, not
civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma.[323]
It stated in categorical terms, viz:
93
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and nondiscriminatory laws, rules and regulations promulgated by competent authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it
is incumbent upon the Court to determine whether a certain ritual is religious or
not; (2) religious freedom will not be upheld if it clashes with the established
institutions of society and with the law such that when a law of general
applicability (in this case the Department Order) incidentally burdens the
exercise of ones religion, ones right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was reiterated
inBalbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Rope Workers Union.[326] In this unanimously decided en banc case, Victoriano
was a member of the Iglesia ni Cristo which prohibits the affiliation of its members
with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was
a member of the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing closed shop
arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from
the application and coverage of a closed shop agreement employees belonging to
any religious sect which prohibits affiliation of their members with any labor
organization. Victoriano resigned from the union after Republic Act No. 3350 took
effect. The union notified the company of Victorianos resignation, which in turn
notified Victoriano that unless he could make a satisfactory arrangement with the
union, the company would be constrained to dismiss him from the
service. Victoriano sought to enjoin the company and the union from dismissing
him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting an
exemption offensive of the Establishment Clause. With respect to the first issue,
the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and
liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146)
and has a preferred position in the hierarchy of values. Contractual rights,
therefore, must yield to freedom of religion. It is only where unavoidably
necessary to prevent an immediate and grave danger to the security and
welfare of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary.[327] (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional
provision on establishment and free exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion
by law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of
ones chosen form of religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and with the common
good. (footnote omitted). Any legislation whose effect or purpose is to impede
the observance of one or all religions, or to discriminate invidiously between
the religions, is invalid, even though the burden may be characterized as
being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the states
secular goals, the statute is valid despite its indirect burden on religious
observance, unless the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded
from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect. It also cited Board of Education v.
Allen,[330] which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary effect
that neither advances nor inhibits religion. Using these criteria in upholding
Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing
the constitutional right to the free exercise of religion, by averting that certain
persons be refused work, or be dismissed from work, or be dispossessed of their
right to work and of being impeded to pursue a modest means of livelihood, by
reason of union security agreements. . . . The primary effects of the exemption
from closed shop agreements in favor of members of religious sects that prohibit
their members from affiliating with a labor organization, is the protection of said
employees against the aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs, and . . . eliminating
to a certain extent economic insecurity due to unemployment.[331]
The Court stressed that (a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor unions,
the benefit upon the religious sects is merely incidental and indirect.[332] In
enacting Republic Act No. 3350, Congress merely relieved the exercise of
religion by certain persons of a burden imposed by union security
agreements which Congress itself also imposed through the Industrial Peace
94
Act. The Court concluded the issue of exemption by citing Sherbert which laid
down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes. The Court then abruptly added that (i)n the instant case, We see no
compelling state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several tests
in determining when religious freedom may be validly limited. First, the Court
mentioned the test of immediate and grave danger to the security and welfare of
the community and infringement of religious freedom only to the smallest extent
necessary to justify limitation of religious freedom. Second, religious exercise
may be indirectly burdened by a general law which has for its purpose and effect
the advancement of the states secular goals, provided that there is no other
means by which the state can accomplish this purpose without imposing such
burden. Third, the Court referred to the compelling state interest test which
grants exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the
purpose of highlighting the importance of the protection of religious freedom as the
secular purpose of Republic Act No. 3350. Upholding religious freedom was a
secular purpose insofar as it relieved the burden on religious freedom caused by
another law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano but were not
applied by the Court to the facts and issues of the case. The third, the compelling
state interest test was employed by the Court to determine whether the exemption
provided by Republic Act No. 3350 was not unconstitutional. It upheld the
exemption, stating that there was no compelling state interest to strike it
down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the
compelling state interest test was not appropriate and could not find application in
the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in
seeking exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment benefits. It
was the appellees, members of the South Carolina Employment Commission, a
government agency, who propounded the state interest to justify overriding
Sherberts claim of religious freedom. The U.S. Supreme Court, considering
Sherberts and the Commissions arguments, found that the state interest was not
sufficiently compelling to prevail over Sherberts free exercise claim. This situation
did not obtain in the Victoriano case where it was the government itself, through
Congress, which provided the exemption in Republic Act No. 3350 to allow
Victorianos exercise of religion. Thus, the government could not argue against the
exemption on the basis of a compelling state interest as it would be arguing
against itself; while Victoriano would not seek exemption from the questioned law
to allow the free exercose of religion as the law in fact provides such an
exemption. In sum, although Victoriano involved a religious belief and conduct, it
did not involve a free exercise issue where the Free Exercise Clause is invoked to
exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinas,[334] Anucension v. National Labor Union, et al.,
[335]
and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church within the
Malacanang security area to pray for an end to violence when they were barred
by the police. Invoking their constitutional freedom of religious worship and
locomotion, they came to the Court on a petition for mandamus to allow them to
enter and pray inside the St. Jude Chapel. The Court was divided on the
issue. The slim majority of six recognized their freedom of religion but noted their
absence of good faith and concluded that they were using their religious liberty to
express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the second cannot
be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of belief
or choice of their religion, but only in the manner by which they had attempted
to translate the same to action. This curtailment is in accord with the
pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2),
thus:
. . . But between the freedom of belief and the exercise of said belief, there is quite
a stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter. The government steps in and either restrains said exercise
or even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was necessary to
maintain the smooth functioning of the executive branch of the government, which
petitioners mass action would certainly disrupt[338] and denied the petition. Thus,
without considering the tests mentioned in Victoriano, German went back to the
Gerona rule that religious freedom will not be upheld if it clashes with the
established institutions of society and the law.
95
Then Associate Justice Teehankee registered a dissent which in subsequent

jurisprudence would be cited as a test in religious freedom cases. His dissent
stated in relevant part, viz:
Code of 1987. In resolving the same religious freedom issue as in Gerona, the
Court this time transported the grave and imminent danger test laid down in
Justice Teehankees dissent in German, viz:
A brief restatement of the applicable constitutional principles as set forth in the

landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide
us in resolving the issues.
The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave
and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent. Absent such a threat to
public safety, the expulsion of the petitioners from the schools is not justified.
[342]
(emphasis supplied)
1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of
Rights. (footnote omitted) Freedom of worship, alongside with freedom of
expression and speech and peaceable assembly along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary - even more so
than on the other departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes as the sovereign prerogative of
judgment. Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence
and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint
although there may be subsequent punishment of any illegal acts committed during
the exercise of such basic rights. The sole justification for a prior restraint or
limitation on the exercise of these basic rights is the existence of a grave
and present danger of a character both grave and imminent, of a serious evil
to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).
[339]
(emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and assembly,
and not the exercise of religious freedom. At issue in that case was a permit
sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from
the City of Manila to hold a peaceful march and rally from the Luneta to the gates
of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in
his dissent which had overtones of petitioner German and his companions right to
assemble and petition the government for redress of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.[341] A unanimous Court overturned the Gerona ruling
after three decades. Similar to Gerona, this case involved several Jehovahs
Witnesses who were expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the Administrative
The Court added, viz:

We are not persuaded that by exempting the Jehovahs Witnesses from saluting
the flag, singing the national anthem and reciting the patriotic pledge, this religious
group which admittedly comprises a small portion of the school population will
shake up our part of the globe and suddenly produce a nation untaught and
uninculcated in and unimbued with reverence for the flag, patriotism, love of
country and admiration for national heroes (Gerona v. Secretary of Education, 106
Phil. 224). After all, what the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a
vocation or profession and be taught the virtues of patriotism, respect for human
rights, appreciation of national heroes, the rights and duties of citizenship, and
moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring
about the very situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of country or respect
for duly constituted authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x
x- assuming that such unity and loyalty can be attained through coercion- is not a
goal that is constitutionally obtainable at the expense of religious liberty. A
desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262
U.S. 390, 67 L. ed. 1042, 1046).[344]
96
Towards the end of the decision, the Court also cited the Victoriano case and its
use of the compelling state interest test in according exemption to the Jehovahs
Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the
teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes. (Sherbert
vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs Witnesses
with regard to the observance of the flag ceremony out of respect for their religious
beliefs, however bizarre those beliefs may seem to others.[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones of the
right to free speech and assembly, was transported to Ebralinag which did not
involve prior restraint of religious worship, speech or assembly. Although, it might
be observed that the Court faintly implied thatEbralinag also involved the right to
free speech when in its preliminary remarks, the Court stated that compelling
petitioners to participate in the flag ceremony is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious profession
and worship; the Court then stated in a footnote that the flag salute, singing the
national anthem and reciting the patriotic pledge are all forms of utterances.[346]
The compelling state interest test was not fully applied by the Court
in Ebralinag. In the Solicitor Generals consolidated comment, one of the grounds
cited to defend the expulsion orders issued by the public respondents was that
(t)he States compelling interests being pursued by the DECs lawful regulations in
question do not warrant exemption of the school children of the Jehovahs
Witnesses from the flag salute ceremonies on the basis of their own self-perceived
religious convictions.[347] The Court, however, referred to the test only towards the
end of the decision and did not even mention what the Solicitor General argued as
the compelling state interest, much less did the Court explain why the interest was
not sufficiently compelling to override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni
Cristo v. Court of Appeals, et al.[348] Although there was a dissent with respect to
the applicability of the clear and present danger test in this case, the majority
opinion in unequivocal terms applied the clear and present danger test to
religious speech. This case involved the television program, Ang Iglesia ni
Cristo, regularly aired over the television. Upon petitioner Iglesia ni Cristos
submission of the VTR tapes of some of its episodes, respondent Board of Review
for Motion Pictures and Television classified these as X or not for public viewing
on the ground that they offend and constitute an attack against other religions
which is expressly prohibited by law. Invoking religious freedom, petitioner
alleged that the Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating
them. While upholding the Boards power to review the Iglesia television show,
the Court was emphatic about the preferred status of religious
freedom. Quoting Justice Cruz commentary on the constitution, the Court held
that freedom to believe is absolute but freedom to act on ones belief, where it
affects the public, is subject to the authority of the state. The commentary quoted
Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz: (t)he
constitutional provision on religious freedom terminated disabilities, it did not create
new privileges. It gave religious liberty, not civil immunity. Its essence is freedom
from conformity to religious dogma, not freedom from conformity to law because of
religious dogma.[349] Nevertheless, the Court was quick to add the criteria by which
the state can regulate the exercise of religious freedom, that is, when the exercise
will bring about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more overriding
interest of public health, public morals, or public welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the Constitution
is hostile to all prior restraints on speech, including religious speech and the xrating was a suppression of petitioners freedom of speech as much as it was an
interference with its right to free exercise of religion. Citing Cantwell, the Court
recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting any
religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid
down in the American Bible Society case and the test of immediate and grave
danger with infringement only to the smallest extent necessary to avoid danger
in Victoriano and pointed out that the reviewing board failed to apply the clear
and present danger test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify the
conclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by hypothetical
97
fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.
politics.[355] Non-establishment thus calls for government neutrality in

religious matters to uphold voluntarism and avoid breeding interfaith
dissension.[356]
Replying to the challenge on the applicability of the clear and present danger test
to the case, the Court acknowledged the permutations that the test has undergone,
but stressed that the test is still applied to four types of speech: speech that
advocates dangerous ideas, speech that provokes a hostile audience reaction, out
of court contempt and release of information that endangers a fair trial [351] and
ruled, viz:
The neutrality principle was applied in the first significant non-establishment

case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the
Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress of the
Catholic Church on the ground that the constitutional prohibition against the use of
public money for religious purposes has been violated. It appears that the Director
of Posts issued the questioned stamps under the provisions of Act No.
4052[358] which appropriated a sum for the cost of plates and printing of postage
stamps with new designs and authorized the Director of Posts to dispose of the
sum in a manner and frequency advantageous to the Government. The printing
and issuance of the postage stamps in question appears to have been approved
by authority of the President. Justice Laurel, speaking for the Court, took pains
explaining religious freedom and the role of religion in society, and in conclusion,
found no constitutional infirmity in the issuance and sale of the stamps,viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the
clear and present danger test to the case at bar which concerns speech that
attacks other religions and could readily provoke hostile audience reaction. It
cannot be doubted that religious truths disturb and disturb terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance with a law
that burdens ones religious exercise. It also reiterated the clear and present
danger test in American Bible Society and the grave and imminent danger
in Victoriano, but this time clearly justifying its applicability and showing how the
test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise
where it is justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values
sought to be protected by the Establishment Clause, namely, voluntarism
and insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal value, it
refers to the inviolability of the human conscience which, as discussed above, is
also protected by the free exercise clause. From the religious perspective, religion
requires voluntarism because compulsory faith lacks religious efficacy. Compelled
religion is a contradiction in terms.[354] As a social value, it means that the growth
of a religious sect as a social force must come from the voluntary support of its
members because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without benefit of
official patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from
The prohibition herein expressed is a direct corollary of the principle of separation

of church and state. Without the necessity of adverting to the historical
background of this principle in our country, it is sufficient to say that our history,
not to speak of the history of mankind, has taught us that the union of
church and state is prejudicial to both, for occasions might arise when the
state will use the church, and the church the state, as a weapon in the
furtherance of their respective ends and aims . . . It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to support and
defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and
recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition
of profound reverence for religion and is not a denial of its influence in
human affairs. Religion as a profession of faith to an active power that binds
and elevates man to his Creator is recognized. And, in so far as it instills
into the minds the purest principles of morality, its influence is deeply felt
and highly appreciated. When the Filipino people, in the preamble of their
Constitution, implored the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a
regime of justice, liberty and democracy, they thereby manifested their
intense religious nature and placed unfaltering reliance upon Him who
98
guides the destinies of men and nations. The elevating influence of religion
in human society is recognized here as elsewhere. In fact, certain general
concessions are indiscriminately accorded to religious sects and denominations. . .
[359]
xxx
xxx
xxx
It is obvious that while the issuance and sale of the stamps in question may be
said to be inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim and
purpose of the Government. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which
could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44
Law. ed., 168)[360] (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine
that a law or government action with a legitimate secular purpose does not
offend the Establishment Clause even if it incidentally aids a particular
religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although
the Court found that the separation of church and state was not at issue as the
controversy was over who should have custody of a saints image, it nevertheless
made pronouncements on the separation of church and state along the same line
as the Aglipay ruling. The Court held that there was nothing unconstitutional or
illegal in holding a fiesta and having a patron saint for the barrio. It adhered to
the barrio resolutions of the barangay involved in the case stating that thebarrio
fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in
rural communities that relieves the monotony and drudgery of the lives of the
masses. Corollarily, the Court found nothing illegal about any activity intended to
facilitate the worship of the patron saint such as the acquisition and display of his
image
bought
with
funds
obtained
through
solicitation
from
the barrio residents. The Court pointed out that the image of the patron saint was
purchased in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion
nor interfering with religious matters or the religious beliefs of the barrio
residents. Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public funds and
which has some religious tint is violative of the constitutional provisions regarding
separation of church and state, freedom of worship and banning the use of public
money or property.
Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a
novel issue involving the religion clauses. In this case, Section 2175 of the
Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment
or election as municipal officer was challenged. After protracted deliberation, the
Court was sharply divided on the issue. Seven members of the Court, one short of
the number necessary to declare a law unconstitutional, approached the problem
from a free exercise perspective and considered the law a religious test offensive
of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma,
Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice
Fernando, theponente, stated, viz: The challenged Administrative Code provision,
certainly insofar as it declares ineligible ecclesiastics to any elective or appointive
office, is, on its face, inconsistent with the religious freedom guaranteed by the
Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive
weight. What was there involved was the validity of a provision in the Maryland
Constitution prescribing that no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other than a declaration
of belief in the existence of God ***. Such a constitutional requirement was
assailed as contrary to the First Amendment of the United States Constitution by
an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the Maryland
Court of Appeals but prevailed in the United States Supreme Court, which reversed
the state court decision. It could not have been otherwise. As emphatically
declared by Justice Black: this Maryland religious test for public office
unconstitutionally invades the appellants freedom of belief and religion and
therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God that
was a disqualification. Here being an ecclesiastic and therefore professing a
religious faith suffices to disqualify for a public office. There is thus an
incompatibility between the Administrative Code provision relied upon by petitioner
and an express constitutional mandate.[364]
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the
case from a non-establishment perspective and upheld the law as a safeguard
against the constant threat of union of church and state that has marked Philippine
history. Justice Makasiar stated: To allow an ecclesiastic to head the executive
99
department of a municipality is to permit the erosion of the principle of separation

of Church and State and thus open the floodgates for the violation of the cherished
liberty of religion which the constitutional provision seeks to enforce and
protect. Consequently, the Court upheld the validity of Section 2175 of the
Revised Administrative Code and declared respondent priest ineligible for the
office of municipal mayor.
In both Philippine and U.S. jurisdiction, it is recognized that there is a

tension between the Free Exercise Clause and the Establishment Clause in
their application. There is a natural antagonism between a command not to
establish religion and a command not to inhibit its practice; this tension between
the religion clauses often leaves the courts with a choice between competing
values in religion cases.[370]
Another type of cases interpreting the establishment clause deals with

intramural religious disputes. Fonacier v. Court of Appeals[365] is the leading
case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the
determination of who was the legitimate bishop of the church. The Court cited
American Jurisprudence,[366] viz:
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of view, and
decided in opposite directions. InPamil, the majority gave more weight to the
religious liberty of the priest in holding that the prohibition of ecclesiastics to
assume elective or appointive government positions was violative of the Free
Exercise Clause. On the other hand, the prevailing five justices gave importance
to the Establishment Clause in stating that the principle of separation of church and
state justified the prohibition.
Where, however, a decision of an ecclesiastical court plainly violates the law it

professes to administer, or is in conflict with the law of the land, it will not be
followed by the civil courts. . . In some instances, not only have the civil courts the
right to inquire into the jurisdiction of the religious tribunals and the regularity of
their procedure, but they have subjected their decisions to the test of fairness or to
the test furnished by the constitution and the law of the church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on their
internal laws. To finally dispose of the property issue, the Court, citing Watson v.
Jones,[368] declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical association
(such as the Philippine Independent Church) is that the rules for resolving such
controversies should be those of any voluntary association. If the congregation
adopts the majority rule then the majority should prevail; if it adopts adherence to
duly constituted authorities within the congregation, then that should be
followed. Applying these rules, Fonacier lost the case. While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary
differences raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church
and having reference to the power of excluding from the church those allegedly
unworthy of membership, are unquestionably ecclesiastical matters which are
outside the province of the civil courts.[369]
Tension is also apparent when a case is decided to uphold the Free Exercise
Clause and consequently exemptions from a law of general applicability are
afforded by the Court to the person claiming religious freedom; the question arises
whether the exemption does not amount to support of the religion in violation of the
Establishment Clause. This was the case in the Free Exercise Clause case
of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the
Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in the
face of religious differences, and does not represent that involvement of
religious with secular institutions which it is the object of the Establishment Clause
to forestall.[371] (emphasis supplied)
Tension also exists when a law of general application provides exemption in
order to uphold free exercise as in the Walz case where the appellant argued that
the exemption granted to religious organizations, in effect, required him to
contribute to religious bodies in violation of the Establishment Clause. But the
Court held that the exemption was not a case of establishing religion but merely
upholding the Free Exercise Clause by sparing the exercise of religion from the
burden of property taxation levied on private profit institutions. Justice Burger
wrote,viz:
(t)he Court has struggled to find a neutral course between the two religion clauses,
both of which are cast in absolute terms, and either of which, if expanded to a
logical extreme, would tend to clash with the other.[372]
VIII. Free Exercise Clause vis--vis Establishment Clause
100
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently
with the spirit of the constitutional provision. It acted merely to relieve the
exercise of religion, by certain persons, of a burden that is imposed by union
security agreements.[373] (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment
Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: (t)here are certain practices, conceivably violative of the Establishment
Clause, the striking down of which might seriously interfere with certain religious
liberties also protected by the First Amendment.
How the tension between the Establishment Clause and the Free Exercise
Clause will be resolved is a question for determination in the actual cases that
come to the Court. In cases involving both the Establishment Clause and the Free
Exercise Clause, the two clauses should be balanced against each other. The
courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment
Clause problem. In the United States, it has been proposed that in balancing, the
free exercise claim must be given an edge not only because of abundant historical
evidence in the colonial and early national period of the United States that the free
exercise principle long antedated any broad-based support of disestablishment,
but also because an Establishment Clause concern raised by merely
accommodating a citizens free exercise of religion seems far less dangerous to
the republic than pure establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two religion clauses,
the courts convey a message of hostility to the religion that in that case cannot be
freely exercised.[374] American professor of constitutional law, Laurence Tribe,
similarly suggests that the free exercise principle should be dominant in any
conflict with the anti-establishment principle. This dominance would be the result
of commitment to religious tolerance instead of thwarting at all costs even the
faintest appearance of establishment.[375] In our jurisdiction, Fr. Joaquin Bernas,
S.J. asserts that a literal interpretation of the religion clauses does not
suffice. Modern society is characterized by the expanding regulatory arm of
government that reaches a variety of areas of human conduct and an expanding
concept of religion. To adequately meet the demands of this modern society, the
societal values the religion clauses are intended to protect must be considered in
their interpretation and resolution of the tension. This, in fact, has been the
approach followed by the Philippine Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,

Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in every
organic Act of the Philippines under the American regime. When the delegates of
the 1934 Constitutional Convention adopted a Bill of Rights in the 1935
Constitution, they purposely retained the phraseology of the religion clauses in the
First Amendment as contained in the Jones Law in order to adopt its historical
background, nature, extent and limitations. At that time, there were not too many
religion clause cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case. The Free Exercise
Clause cases were also scarce then. Over the years, however, with the expanding
reach of government regulation to a whole gamut of human actions and the
growing plurality and activities of religions, the number of religion clause cases in
the U.S. exponentially increased. With this increase came an expansion of the
interpretation of the religion clauses, at times reinforcing prevailing case law, at
other times modifying it, and still at other times creating contradictions so that two
main streams of jurisprudence had become identifiable. The first stream
employs separation while the second employs benevolent neutrality in
interpreting the religious clauses. Alongside this change in the landscape of U.S.
religion clause jurisprudence, the Philippines continued to adopt the 1935
Constitution religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and
the two identifiable streams; thus, when a religion clause case comes before the
Court, a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court
in Everson supports the separationistapproach, Philippine jurisprudence should
also follow this approach in light of the Philippine religion clauses history. As a
result, in a case where the party claims religious liberty in the face of a general law
that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not
be breached if the Court grants him an exemption. These conclusions, however,
are not and were never warranted by the 1987, 1973 and 1935 Constitutions
as shown by other provisions on religion in all three constitutions. It is a
cardinal rule in constitutional construction that the constitution must be interpreted
as a whole and apparently conflicting provisions should be reconciled and
harmonized in a manner that will give to all of them full force and effect. [377] From
this construction, it will be ascertained that the intent of the framers was to
101
adopt a benevolent neutrality approach in interpreting the religious clauses

in the Philippine constitutions, and the enforcement of this intent is the goal of
construing the constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At
the same time that the 1935 Constitution provided for an Establishment Clause, it
also provided for tax exemption of church property in Article VI, Section 22, par.
3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and
all lands, buildings, and improvements used exclusively for religious, charitable, or
educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative Code
provided for a similar exemption. To the same effect, the Tydings-McDuffie Law
contained a limitation on the taxing power of the Philippine government during the
Commonwealth period.[379] The original draft of the Constitution placed this
provision in an ordinance to be appended to the Constitution because this was
among the provisions prescribed by the Tydings-McDuffie Law. However, in order
to have a constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the Constitution
on the rationale that if churches, convents [rectories or parsonages] and their
accessories are always necessary for facilitating the exercise of such [religious]
freedom, it would also be natural that their existence be also guaranteed by
exempting them from taxation.[380] The amendment was readily approved with 83
affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in the
U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind
of exemption to withstand Establishment Clause scrutiny by stating that church
property was not singled out but was exempt along with property owned by nonprofit, quasi-public corporations because the state upheld the secular policy that
considers these groups as beneficial and stabilizing influences in community life
and finds this classification useful, desirable, and in the public interest. The Court
also stated that the exemption was meant to relieve the burden on free exercise
imposed by property taxation. At the same time, however, the Court
acknowledged that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion of the
church property tax exemption in the body of the 1935 Constitution and not merely
as an ordinance appended to the Constitution, the benevolent neutrality referred
to in the Walz case was given constitutional imprimatur under the regime of the
1935 Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the exercise of
religious liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used,

directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution or system of religion, for the use, benefit or
support of any priest, preacher, ministers or other religious teacher or dignitary as
such, except when such priest, preacher, minister, or dignitary is assigned to
the armed forces or to any penal institution, orphanage, or
leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3 of
the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used, directly
or indirectly, for the use, benefit, or support of any sect, church denomination,
sectarian institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or dignitary as such[382]
In the deliberations of this draft provision, an amendment was proposed to strike
down everything after church denomination. [383] The proposal intended to imitate
the silence of the U.S. Constitution on the subject of support for priests and
ministers. It was also an imitation of the silence of the Malolos Constitution to
restore the situation under the Malolos Constitution and prior to the Jones Law,
when chaplains of the revolutionary army received pay from public funds with no
doubt about its legality. It was pointed out, however, that even with the prohibition
under the Jones Law, appropriations were made to chaplains of the national
penitentiary and the Auditor General upheld its validity on the basis of a similar
United States practice. But it was also pointed out that the U.S. Constitution did
not contain a prohibition on appropriations similar to the Jones Law.[384] To settle
the question on the constitutionality of payment of salaries of religious officers in
certain government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and approved.
The provision garnered 74 affirmative votes against 34 negative votes.[385] As
pointed out in the deliberations, the U.S. Constitution does not provide for this
exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas payment of
prison chaplains salaries as reasonably necessary to permit inmates to practice
their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the longstanding tradition of beginning legislative sessions with prayers offered by
legislative chaplains retained at taxpayers expense. The constitutional provision
exempting religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion
protects the wall of separation between church and state, the provision at the same
time gives constitutional sanction to a breach in the wall.
102
To further buttress the thesis that benevolent neutrality is contemplated in the

Philippine Establishment Clause, the 1935 Constitution provides for optional
religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as now
authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established in
the town where a public school is situated, either in person or by a designated
teacher of religion, to teach religion for one-half hour three times a week, in the
school building, to those public-school pupils whose parents or guardians desire it
and express their desire therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three positions on
the issue of religious instruction in public schools. The first held that the teaching
of religion in public schools should be prohibited as this was a violation of the
principle of separation of church and state and the prohibition against the use of
public funds for religious purposes. The second favored the proposed optional
religious instruction as authorized by the Administrative Code and recognized that
the actual practice of allowing religious instruction in the public schools was
sufficient proof that religious instruction was not and would not be a source of
religious discord in the schools.[386] The third wanted religion to be included as a
course in the curriculum of the public schools but would only be taken by pupils at
the option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional teaching
of religion in public schools, despite the opposition to the provision on the ground
of separation of church and state. [387] As in the provisions on church property tax
exemption and compensation of religious officers in government institutions, the
U.S. Constitution does not provide for optional religious instruction in public
schools. In
fact,
in
theMcCollum
case, the
Court,
using strict
neutrality, prohibited this kind of religious instruction where the religion teachers
would conduct class within the school premises. The constitutional provision on
optional religious instruction shows that Philippine jurisdiction rejects the strict
neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino
people implored (ing) the aid of Divine Providence (,) in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of
the nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution. A preamble is a
key to open the mind of the authors of the constitution as to the evil sought to be
prevented and the objects sought to be accomplished by the provisions
thereof.[388] There was no debate on the inclusion of a Divine Providence in the

preamble. In Aglipay,Justice Laurel noted that when the Filipino people implored
the aid of Divine Providence, (t)hey thereby manifested their intense religious
nature and placed unfaltering reliance upon Him who guides the destinies of men
and nations.[389] The 1935 Constitutions religion clauses, understood alongside
the other provisions on religion in the Constitution, indubitably shows not hostility,
but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of
church property from taxation, with the modification that the property should not
only be used directly, but also actually and exclusively for religious or charitable
purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973
Constitution also contained a similar provision on salaries of religious officials
employed in the enumerated government institutions. Article XIII, Section 5 of the
1935 Constitution on optional religious instruction was also carried to the 1973
Constitution in Article XV, Section 8(8) with the modification that optional religious
instruction shall be conducted as may be provided by law and not as now
authorized by law as stated in the 1935 Constitution. The 1973 counterpart,
however, made explicit in the constitution that the religious instruction in public
elementary and high schools shall be done (a)t the option expressed in writing by
the parents or guardians, and without cost to them and the government. With the
adoption of these provisions in the 1973 Constitution, the benevolent neutrality
approach continued to enjoy constitutional sanction. In Article XV, Section 15 of
the General Provisions of the 1973 Constitution this provision made its maiden
appearance: (t)he separation of church and state shall be inviolable. The 1973
Constitution retained the portion of the preamble imploring the aid of Divine
Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the absolute separation of Church
and State as enunciated in the Everson case and reiterated in Schempp - i.e.,
neutrality not only as between one religion and another but even as between
religion and non-religion - is embodied in the Philippine Constitution. The subcommittees answer was that it did not seem so. Citing the Aglipay case where
Justice Laurel recognized the elevating influence of religion in human society and
the Filipinos imploring of Divine Providence in the 1935 Constitution, the subcommittee asserted that the state may not prefer or aid one religion over another,
but may aid all religions equally or the cause of religion in general. [391] Among the
position papers submitted to the Committee on Church on State was a background
paper for reconsideration of the religion provisions of the constitution by Fr.
Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to
religion and in fact recognizes the value of religion and accommodates religious
values.[392] Stated otherwise, the Establishment Clause contemplates not a strict
neutrality but benevolent neutrality. While the Committee introduced the provision
103
on separation of church and state in the General Provisions of the 1973

Constitution, this was nothing new as according to it, this principle was implied in
the 1935 Constitution even in the absence of a similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in Article VI,
Section 28(3) of the 1987 Constitution. The same is true with respect to the
prohibition on the use of public money and property for religious purposes and the
salaries of religious officers serving in the enumerated government institutions,
now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed
into the possibility of allowing the government to spend public money for purposes
which might have religious connections but which would benefit the public
generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a
public expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was expressly
provided that optional instruction shall be conducted within the regular class
hours and without additional cost to the government. There were protracted
debates on what additional cost meant, i.e., cost over and above what is needed
for normal operations such as wear and tear, electricity, janitorial services, [395] and
when during the day instruction would be conducted.[396] In deliberating on the
phrase within the regular class hours, Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored principle of
separation of church and state. She cited the McCullom case where religious
instruction during regular school hours was stricken down as unconstitutional and
also cited what she considered the most liberal interpretation of separation of
church and state in Surach v. Clauson where the U.S. Supreme Court allowed
only release time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the rule
on non-establishment of religion, because if it were not necessary to make this
exception for purposes of allowing religious instruction, then we could just drop the
amendment. But, as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American practices.[397]
(emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but placed
under the Principles in the Declaration of Principles and State Policies in Article II,
Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The separation of

Church and State is inviolable, is almost a useless statement; but at the same time
it is a harmless statement. Hence, I am willing to tolerate it there, because, in the
end, if we look at the jurisprudence on Church and State, arguments are based not
on the statement of separation of church and state but on the non-establishment
clause in the Bill of Rights.[398]
The preamble changed Divine Providence in the 1935 and 1973
Constitutions to Almighty God. There was considerable debate on whether to
use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic
delegates in the 1971 Constitutional Convention objected to reference to a
personal God.[399] God of History, Lord of History and God were also proposed,
but the phrase Almighty God prevailed. Similar to the 1935 and 1971
Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to
religion;[400] its wall of separation is not a wall of hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of
church property, salary of religious officers in government institutions, optional
religious instruction and the preamble all reveal without doubt that the Filipino
people, in adopting these constitutions, did not intend to erect a high and
impregnable wall of separation between the church and state.[402]The strict
neutrality approach which examines only whether government action is for a
secular purpose and does not consider inadvertent burden on religious exercise
protects such a rigid barrier. By adopting the above constitutional provisions on
religion, the Filipinos manifested their adherence to the benevolent
neutrality approach in interpreting the religion clauses, an approach that looks
further than the secular purposes of government action and examines the effect of
these actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of religion in
society; at the same time, it acknowledges that government must pursue its
secular goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It allows these
breaches in the wall of separation to uphold religious liberty, which after all is the
integral purpose of the religion clauses. The case at bar involves this first type
of accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does
mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them
when it can within flexible constitutional limits; it does mean that the Court
104
will not simply dismiss a claim under the Free Exercise Clause because the
conduct in question offends a law or the orthodox view for this precisely is
the protection afforded by the religion clauses of the Constitution, i.e., that in
the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion clauses
justify it. While the Court cannot adopt a doctrinal formulation that can eliminate
the difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted
by the state to pursue its interest, the Court can set a doctrine on the ideal towards
which religious clause jurisprudence should be directed.[403] We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation indubitably
show that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty not only
for a minority, however small- not only for a majority, however large- but for
each of us to the greatest extent possible within flexible constitutional
limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but acknowledged
the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as
well as the provisions of the Administrative Code making Thursday and Friday of
the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court
not only recognized the Constitutional provisions indiscriminately granting
concessions to religious sects and denominations, but also acknowledged that
government participation in long-standing traditions which have acquired a social
character - the barrio fiesta is a socio-religious affair - does not offend the
Establishment Clause. In Victoriano, the Court upheld the exemption from closed
shop provisions of members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a violation of the
Establishment Clause but was only meant to relieve the burden on free exercise of
religion. In Ebralinag,members of the Jehovahs Witnesses were exempt from
saluting the flag as required by law, on the basis not of a statute granting
exemption but of the Free Exercise Clause without offending the Establishment
Clause.
While the U.S. and Philippine religion clauses are similar in form and
origin, Philippine constitutional law has departed from the U.S. jurisprudence
of employing a separationist or strict neutrality approach. The Philippine
religion clauses have taken a life of their own, breathing the air of benevolent
neutrality and accommodation. Thus, the wall of separation in Philippine
jurisdiction is not as high and impregnable as the wall created by the U.S.
Supreme Court in Everson.[404] While the religion clauses are a unique American
experiment which understandably came about as a result of Americas English
background and colonization, the life that these clauses have taken in this
jurisdiction is the Philippines own experiment, reflective of the Filipinos own
national soul, history and tradition. After all, the life of the law. . . has been
experience.
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the Court
ought to view religion clause cases, it must be stressed that the interest of the
state should also be afforded utmost protection. To do this, a test must be
applied to draw the line between permissible and forbidden religious exercise. It is
quite paradoxical that in order for the members of a society to exercise their
freedoms, including their religious liberty, the law must set a limit when their
exercise offends the higher interest of the state. To do otherwise is self-defeating
for unlimited freedom would erode order in the state and foment anarchy,
eventually destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people establish the
state is for the state to protect their liberties; for this purpose, they give up a portion
of these freedoms - including the natural right to free exercise - to the state. It was
certainly not the intention of the authors of the constitution that free exercise could
be used to countenance actions that would undo the constitutional order that
guarantees free exercise.[405]
The all important question then is the test that should be used in ascertaining
the limits of the exercise of religious freedom. Philippine jurisprudence articulates
several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the clear and
present danger test but did not employ it. Nevertheless, this test continued to be
cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit
inappropriately, the compelling state interest test. After Victoriano, German went
back to the Gerona rule. Ebralinag then employed the grave and immediate
danger test and overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the clear and present danger test in the maiden case
of American Bible Society. Not surprisingly, all the cases which employed
the clear and present danger or grave and immediate danger test
involved, in one form or another, religious speech as this test is often used
in
cases
on
freedom
of
expression. On
the
other
hand,
the Gerona and German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however, which was the
105
authority cited byGerman has been overruled by Ebralinag which employed the
grave and immediate danger test. Victoriano was the only case that employed
the compelling state interest test, but as explained previously, the use of the test
was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the clear and present danger and grave
and immediate danger tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The compelling state interest
test is proper where conduct is involved for the whole gamut of human
conduct has different effects on the states interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights - the
most inalienable and sacred of all human rights, in the words of Jefferson. [406] This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty,[407] thus the
Filipinos implore the aid of Almighty God in order to build a just and humane
society and establish a government. As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the state
to batter religion, especially the less powerful ones until they are destroyed. [408] In
determining which shall prevail between the states interest and religious liberty,
reasonableness shall be the guide.[409] The compelling state interest serves the
purpose of revering religious liberty while at the same time affording protection to
the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the compelling
state interest test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees

engaged in illicit relations are guilty of disgraceful and immoral conduct for which
he/she may be held administratively liable. [410] In these cases, there was not one
dissent to the majoritys ruling that their conduct was immoral. The respondents
themselves did not foist the defense that their conduct was not immoral, but
instead sought to prove that they did not commit the alleged act or have abated
from committing the act. The facts of the 1975 case of De Dios v. Alejo[411]and the
1999 case of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the
complainant is a mere stranger and the legal wife has not registered any objection
to the illicit relation, there is no proof of scandal or offense to the moral sensibilities
of the community in which the respondent and the partner live and work, and the
government employee is capacitated to marry while the partner is not capacitated
but has long been separated in fact. Still, the Court found the government
employees administratively liable for disgraceful and immoral conduct and only
considered the foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled jurisprudence that an illicit
relation constitutes disgraceful and immoral conduct for which a government
employee is held liable. Nor is there an allegation that the norms of morality with
respect to illicit relations have shifted towards leniency from the time these
precedent cases were decided. The Court finds that there is no such error or shift,
thus we find no reason to deviate from these rulings that such illicit relationship
constitutes disgraceful and immoral conduct punishable under the Civil Service
Law. Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively
liable. However, there is a distinguishing factor that sets the case at bar apart from
the cited precedents, i.e., as a defense, respondent invokes religious freedom
since her religion, the Jehovahs Witnesses, has, after thorough investigation,
allowed her conjugal arrangement with Quilapio based on the churchs religious
beliefs and practices. This distinguishing factor compels the Court to apply the
religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both
the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion
of Mr. Justice Vitug dwell more on the standards of morality than on the religion
clauses in deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and
why. Any definition of morality beyond Socrates simple formulation is bound to
offend one or another of the many rival theories regarding what it means to live
morally.[413] The answer to the question of how we ought to live necessarily
considers that man does not live in isolation, but in society. Devlin posits that a
society is held together by a community of ideas, made up not only of political
ideas but also of ideas about the manner its members should behave and govern
their lives. The latter are their morals; they constitute the public morality. Each
member of society has ideas about what is good and what is evil. If people try to
create a society wherein there is no fundamental agreement about good and evil,
106
they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together by the
invisible bonds of common thought so that if the bonds are too loose, the members
would drift apart. A common morality is part of the bondage and the bondage is
part of the price of society; and mankind, which needs society, must pay its price.
[414]
This design is parallel with the social contract in the realm of politics: people
give up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement about
the powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A complete
break of this fundamental agreement such as by revolution destroys the old order
and creates a new one.[415] Similarly, in the realm of morality, the breakdown of the
fundamental agreement about the manner a societys members should behave
and govern their lives would disintegrate society. Thus, society is justified in taking
steps to preserve its moral code by law as it does to preserve its government and
other essential institutions.[416] From these propositions of Devlin, one cannot
conclude that Devlin negates diversity in society for he is merely saying that in the
midst of this diversity, there should nevertheless be a fundamental agreement
about good and evil that will govern how people in a society ought to live. His
propositions, in fact, presuppose diversity hence the need to come to an
agreement; his position also allows for change of morality from time to time which
may be brought about by this diversity. In the same vein, a pluralistic society lays
down fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be
amended from time to time. Harts argument propounded in Mr. Justice Vitugs
separate opinion that, Devlins view of people living in a single society as having
common moral foundation (is) overly simplistic because societies have always
been diverse fails to recognize the necessity of Devlins proposition in a
democracy. Without fundamental agreement on political and moral ideas, society
will fall into anarchy; the agreement is necessary to the existence and progress of
society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the public
square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance.[417] Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median groups.
[418]
Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies -- including protection of religious freedom not only for a minority,
however small- not only for a majority, however large- but for each of us -- the
majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.[419] In the
realm
of
religious
exercise, benevolent
neutrality that
gives
room
for accommodation carries out this promise, provided the compelling interests of
the state are not eroded for the preservation of the state is necessary to the
preservation of religious liberty. That is why benevolent neutrality is necessary in
a pluralistic society such as the United States and the Philippines to accommodate
those minority religions which are politically powerless. It is not surprising
that Smith is much criticized for it blocks the judicial recourse of the minority for
religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes
put it, (t)he law is the witness and deposit of our moral life. [420] In a liberal
democracy, the law reflects social morality over a period of time. [421] Occasionally
though, a disproportionate political influence might cause a law to be enacted at
odds with public morality or legislature might fail to repeal laws embodying
outdated traditional moral views.[422] Law has also been defined as something men
create in their best moments to protect themselves in their worst
moments.[423]Even then, laws are subject to amendment or repeal just as judicial
pronouncements are subject to modification and reversal to better reflect the public
morals of a society at a given time. After all, the life of the law...has been
experience, in the words of Justice Holmes. This is not to say though that law is
all of morality. Law deals with the minimum standards of human conduct while
morality is concerned with the maximum. A person who regulates his conduct with
the sole object of avoiding punishment under the law does not meet the higher
moral standards set by society for him to be called a morally upright person.
[424]
Law also serves as a helpful starting point for thinking about a proper or ideal
public morality for a society[425] in pursuit of moral progress.
In Magno v. Court of Appeals, et al., [426] we articulated the relationship
between law and public morality. We held that under the utilitarian theory, the
protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which are detrimental
(or dangerous) to those conditions upon which depend the existence and
progress of human society. This disapprobation is inevitable to the extent
that morality is generally founded and built upon a certain concurrence in the
moral opinions of all. x x x That which we call punishment is only an external
means of emphasizing moral disapprobation: the method of punishment is in reality
the amount of punishment.[427]Stated otherwise, there are certain standards of
behavior or moral principles which society requires to be observed and these form
the bases of criminal law. Their breach is an offense not only against the person
injured but against society as a whole. [428] Thus, even if all involved in the misdeed
are consenting parties, such as in the case at bar, the injury done is to the public
morals and the public interest in the moral order.[429] Mr. Justice Vitug expresses
107
concern on this point in his separate opinion. He observes that certain immoral
acts which appear private and not harmful to society such as sexual congress
between a man and a prostitute, though consensual and private, and with no
injured third party, remains illegal in this country. His opinion asks whether these
laws on private morality are justified or they constitute impingement on ones
freedom of belief. Discussion on private morality, however, is not material to the
case at bar for whether respondents conduct, which constitutes concubinage,[430] is
private in the sense that there is no injured party or the offended spouse consents
to the concubinage, the inescapable fact is that the legislature has taken
concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality of
this law is not being raised in the case at bar. In the definition of the crime of
concubinage, consent of the injured party, i.e., the legal spouse, does not alter or
negate the crime unlike in rape [431] where consent of the supposed victim negates
the crime. If at all, the consent or pardon of the offended spouse in concubinage
negates the prosecution of the action,[432] but does not alter the legislatures
characterization of the act as a moral disapprobation punishable by law. The
separate opinion states that, (t)he ponencia has taken pains to distinguish
between secular and private morality, and reached the conclusion that the law, as
an instrument of the secular State should only concern itself with secular morality.
The Court does not draw this distinction in the case at bar. The distinction relevant
to the case is not, as averred and discussed by the separate opinion, between
secular and private morality, but between public and secular morality on the one
hand, and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which are not
punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the
New Civil Code, dealing with Human Relations, provide for the recognition of the
wrong and the concomitant punishment in the form of damages. Articles 19 and
21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due and observe honesty and good
faith.
xxx
xxx
xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for
the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers of
moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every good
law draws its breath of life from morals, from those principles which are written
with words of fire in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages. When it is reflected
that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not but
feel that it is safe and salutary to transmute, as far as may be, moral norms
into legal rules, thus imparting to every legal system that enduring quality which
ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order
than that a person may with impunity cause damage to his fellow-men so long as
he does not break any law of the State, though he may be defying the most sacred
postulates of morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826 of the
German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from a
persons views of his relations to His Creator and to the obligations they impose of
reverence to His being and character and obedience to His Will, in accordance
with
this
Courts
definition
of
religion
in American
Bible
Society citing Davis. Religion also dictates how we ought to live for the nature of
religion is not just to know, but often, to act in accordance with mans views of his
relations to His Creator.[434] But the Establishment Clause puts a negative bar
against establishment of this morality arising from one religion or the other, and
implies the affirmative establishment of a civil order for the resolution of public
moral disputes. This agreement on a secular mechanism is the price of ending the
war of all sects against all; the establishment of a secular public moral order is
the social contract produced by religious truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or
immoral in the Code of Professional Responsibility for lawyers [436], or public
morals in the Revised Penal Code, [437] or morals in the New Civil Code, [438] or
moral character in the Constitution,[439] the distinction between public and secular
108
morality on the one hand, and religious morality, on the other, should be kept in
mind.[440] The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. Religious teachings as
expressed in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular
terms.[441] Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The nonbelievers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a compelled religion, anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it would
tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class
citizens. Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality.[442]
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That is,
the government proscribes this conduct because it is detrimental (or dangerous)
to those conditions upon which depend the existence and progress of human
society and not because the conduct is proscribed by the beliefs of one religion or
the other. Although admittedly, moral judgments based on religion might have a
compelling influence on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to regulate
the temporal and spiritual institutions of society in a uniform manner, harmonizing
earth with heaven.[443] Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent secular purpose but upon closer
examination shows a discriminatory and prohibitory religious purpose, the law will
be struck down for being offensive of the religion clauses as in Church of the
Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance
prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the Philippine
constitutions religion clauses prescribe not a strict but abenevolent
neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strives to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus, although
the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent

neutrality approach when it states that in deciding the case at bar, the approach
should consider that, (a)s a rule . . . moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society. It is
only where their rigid application would serve to obliterate the value which society
seeks to uphold, or defeat the purpose for which they are enacted would, a
departure be justified. In religion clause parlance, the separate opinion holds that
laws of general applicability governing morals should have a secular purpose of
directly or indirectly protecting the interests of the state. If the strict application of
these laws (which are the Civil Service Law and the laws on marriage) would erode
the secular purposes of the law (which the separate opinion identifies as upholding
the sanctity of marriage and the family), then in abenevolent
neutrality framework, an accommodation of the unconventional religious belief
and practice (which the separate opinion holds should be respected on the ground
of freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration Pledging
Faithfulness that makes the union binding and honorable before God and men, is
required by the Free Exercise Clause. The separate opinion then makes a
preliminary discussion of the values society seeks to protect in adhering to
monogamous marriage, but concludes that these values and the purposes of the
applicable laws should be thoroughly examined and evidence in relation thereto
presented in the OCA. The accommodation approach in the case at bar would
also require a similar discussion of these values and presentation of evidence
before the OCA by the state that seeks to protect its interest on marriage and
opposes the accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other, is
important because the jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bar
should be understood only in this realm where it has authority. More concretely,
should the Court declare respondents conduct as immoral and hold her
administratively liable, the Court will be holding that in the realm of public morality,
her conduct is reprehensible or there are state interests overriding her religious
freedom. For as long as her conduct is being judged within this realm, she will be
accountable to the state. But in so ruling, the Court does not and cannot say that
her conduct should be made reprehensible in the realm of her church where it is
presently sanctioned and that she is answerable for her immorality to her Jehovah
God nor that other religions prohibiting her conduct are correct. On the other hand,
should the Court declare her conduct permissible, the Court will be holding that
under her unique circumstances, public morality is not offended or that upholding
her religious freedom is an interest higher than upholding public morality thus her
conduct should not be penalized. But the Court is not ruling that the tenets and
practice of her religion are correct nor that other churches which do not allow
respondents conjugal arrangement should likewise allow such conjugal
109
arrangement or should not find anything immoral about it and therefore members
of these churches are not answerable for immorality to their Supreme Being. The
Court cannot speak more than what it has authority to say. In Ballard, the U.S.
Supreme Court held that courts cannot inquire about the truth of religious
beliefs. Similarly, inFonacier, this Court declared that matters dealing with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a
churchare unquestionably ecclesiastical matters which are outside the province
of the civil courts.[444] But while the state, including the Court, accords such
deference to religious belief and exercise which enjoy protection under the
religious clauses, the social contract and the constitutional order are designed in
such a way that when religious belief flows into speech and conduct that step out
of the religious sphere and overlap with the secular and public realm, the state has
the power to regulate, prohibit and penalize these expressions and embodiments
of belief insofar as they affect the interests of the state. The states inroad on
religion exercise in excess of this constitutional design is prohibited by the religion
clauses; the Old World, European and American history narrated above bears out
the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this public
and secular morality fall under the phrase disgraceful and immoral conduct for
which a government employee may be held administratively liable. The line is not
easy to draw for it is like a line that divides land and sea, a coastline of
irregularities and indentations.[445] But the case at bar does not require us to
comprehensively delineate between those immoral acts for which one may be held
administratively liable and those to which administrative liability does not
attach. We need not concern ourselves in this case therefore whether laziness,
gluttony, vanity, selfishness, avarice and cowardice are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much
energy grappling with the propositions that not all immoral acts are illegal or not all
illegal acts are immoral, or different jurisdictions have different standards of
morality as discussed by the dissents and separate opinions, although these
observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the law is the
witness and deposit of our moral life, then the rule is not true; in fact, that there
are exceptions only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that there is
morality in a particular jurisdiction; without, however, discounting the truth that
underneath the moral relativism are certain moral absolutes such as respect for life
and truth-telling, without which no society will survive. Only one conduct is in
question before this Court, i.e., the conjugal arrangement of a government
employee whose partner is legally married to another which Philippine law and
jurisprudence consider both immoral and illegal. Lest the Court inappropriately
engage in the impossible task of prescribing comprehensively how one ought to
live, the Court must focus its attention upon the sole conduct in question before
us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of

Mme. Justice Ynares-Santiago groped for standards of morality and stated that the
ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards but did not articulate how these standards are to be
ascertained. Instead, it held that, (f)or those in the service of the Government,
provisions of law and court precedents . . . have to be considered. It identified the
Civil Service Law and the laws on adultery and concubinage as laws which
respondents conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a disgraceful and immoral
conduct for maintaining illicit relations and was thereby penalized. As stated
above, there is no dispute that under settled jurisprudence, respondents conduct
constitutes disgraceful and immoral conduct. However, the cases cited by the
dissent do not involve the defense of religious freedom which respondent in the
case at bar invokes. Those cited cases cannot therefore serve as precedents in
settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United
States[446] in laying down the standard of morality, viz: (w)hether an act is immoral
within the meaning of the statute is not to be determined by respondents concept
of morality. The law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it condemns. The
Mann Act under consideration in the Cleveland case declares as an offense the
transportation in interstate commerce of any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose. [447] The resolution of
that case hinged on the interpretation of the phrase immoral purpose. The U.S.
Supreme Court held that the petitioner Mormons act of transporting at least one
plural wife whether for the purpose of cohabiting with her, or for the purpose of
aiding another member of their Mormon church in such a project, was covered by
the phrase immoral purpose. In so ruling, the Court relied on Reynolds which
held that the Mormons practice of polygamy, in spite of their defense of religious
freedom, was odious among the northern and western nations of Europe,[448] a
return to barbarism,[449] contrary to the spirit of Christianity and of the civilization
which Christianity has produced in the Western world, [450] and thus punishable by
law.
The Cleveland standard, however, does not throw light to the issue in the
case at bar. The pronouncements of the U.S. Supreme Court that polygamy is
intrinsically odious or barbaric do not apply in the Philippines where Muslims, by
law, are allowed to practice polygamy. Unlike in Cleveland, there is no
jurisprudence in Philippine jurisdiction holding that the defense of religious freedom
of a member of the Jehovahs Witnesses under the same circumstances as
respondent will not prevail over the laws on adultery, concubinage or some other
law. We cannot summarily conclude therefore that her conduct is likewise so
odious and barbaric as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom, Mme.
110
Justice Ynares-Santiagos dissent nevertheless discussed respondents plea of

religious freedom and disposed of this defense by stating that (a) clear and
present danger of a substantive evil, destructive to public morals, is a ground for
the reasonable regulation of the free exercise and enjoyment of religious
profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In
addition to the destruction of public morals, the substantive evil in this case is the
tearing down of morality, good order, and discipline in the judiciary. However, the
foregoing discussion has shown that the clear and present danger test that is
usually employed in cases involving freedom of expression is not appropriate to
the case at bar which involves purely religious conduct. The dissent also
cites Reynolds in supporting its conclusion that respondent is guilty of disgraceful
and immoral conduct. The Reynolds ruling, however, was reached with a strict
neutrality approach, which is not the approach contemplated by the Philippine
constitution. As discussed above, Philippine jurisdiction adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality
does not reflect the constitutional intent of employing benevolent neutrality in
interpreting the Philippine religion clauses. His dissent avers that respondent
should be held administratively liable not for disgraceful and immoral conduct but
conduct prejudicial to the best interest of the service as she is a necessary coaccused of her partner in concubinage. The dissent stresses that being a court
employee, her open violation of the law is prejudicial to the administration of
justice. Firstly, the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of conduct prejudicial to the best
interest of the service. In addition, there is no evidence of the alleged prejudice to
the best interest of the service. Most importantly, the dissent concludes that
respondents plea of religious freedom cannot prevail without so much as
employing a test that would balance respondents religious freedom and the states
interest at stake in the case at bar. The foregoing discussion on the doctrine of
religious freedom, however, shows that with benevolent neutrality as a
framework, the Court cannot simply reject respondents plea of religious freedom
without even subjecting it to the compelling state interest test that would balance
her freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu
decided before the 1935 Constitution which unmistakably shows adherence
to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik[451] cited in Mr. Justice Carpios dissent decisive of the immorality
issue in the case at bar. In that case, the Court dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with another
woman with whom he had three children because it (was) not immoral by Muslim
standards for Judge Malik to marry a second time while his first marriage
(existed). Putting the quoted portion in its proper context would readily show that
the Sulu Islamic case does not provide a precedent to the case at
bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz:
(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime
of bigamy shall not apply to a person married x x x under Muslim Law, it is not
immoral by Muslim standards for Judge Malik to marry a second time while his
first marriage exists.[452] It was by law, therefore, that the Muslim conduct in
question was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of P.D. No.
1083 when measured against the Establishment Clause was not raised as an
issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D.
No. 1083 suffered from a constitutional infirmity and instead relied on the provision
excepting the challenged Muslim conduct from the crime of bigamy in holding that
the challenged act is not immoral by Muslim standards. In contradistinction, in the
case at bar, there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on illicit
relations of civil servants. Instead, the Free Exercise Clause is being invoked to
justify exemption.
B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest test
from a benevolent neutrality stance- i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an exception
from the Civil Service Law; necessarily, her defense of religious freedom will be
unavailing should the government succeed in demonstrating a more compelling
state interest.
In applying the test, the first inquiry is whether respondents right to
religious freedom has been burdened. There is no doubt that choosing between
keeping her employment and abandoning her religious belief and practice and
family on the one hand, and giving up her employment and keeping her religious
practice and family on the other hand, puts a burden on her free exercise of
religion. In Sherbert, the Court found that Sherberts religious exercise was
burdened as the denial of unemployment benefits forces her to choose between
following the precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on the other
hand. The burden on respondent in the case at bar is even greater as the price
she has to pay for her employment is not only her religious precept but also her
family which, by the Declaration Pledging Faithfulness, stands honorable before
God and men.
111
The second step is to ascertain respondents sincerity in her religious

belief. Respondent appears to be sincere in her religious belief and practice and
is not merely using the Declaration of Pledging Faithfulness to avoid punishment
for immorality. She did not secure the Declaration only after entering the judiciary
where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was
issued to her by her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary. Ministers from her
congregation testified on the authenticity of the Jehovahs Witnesses practice of
securing a Declaration and their doctrinal or scriptural basis for such a practice. As
the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the union of their members under
respondents circumstances honorable before God and men. It is also worthy of
notice that the Report and Recommendation of the investigating judge annexed
letters[453] of the OCA to the respondent regarding her request to be exempt from
attending the flag ceremony after Circular No. 62-2001 was issued requiring
attendance in the flag ceremony. The OCAs letters were not submitted by
respondent as evidence but annexed by the investigating judge in explaining that
he was caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had different
positions regarding respondents request for exemption from the flag ceremony on
the ground of the Jehovahs Witnesses contrary belief and practice. Respondents
request for exemption from the flag ceremony shows her sincerity in practicing the
Jehovahs Witnesses beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovahs Witnesses and the
Jehovah ministers testified that she is a member in good standing. Nevertheless,
should the government, thru the Solicitor General, want to further question the
respondents sincerity and the centrality of her practice in her faith, it should be
given the opportunity to do so. The government has not been represented in the
case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents evidence
on the sincerity of her religious belief and its centrality in her faith, the case
at bar cannot still be decided using the compelling state interest test. The
case at bar is one of first impression, thus the parties were not aware of the
burdens of proof they should discharge in the Courts use of the compelling state
interest test. We note that the OCA found respondents defense of religious
freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et
al., viz:
It is apparent from the OCAs reliance upon this ruling that the state interest it
upholds is the preservation of the integrity of the judiciary by maintaining among its
ranks a high standard of morality and decency. However, there is nothing in the
OCAs memorandum to the Court that demonstrates how this interest is so
compelling that it should override respondents plea of religious freedom nor is it
shown that the means employed by the government in pursuing its interest is the
least restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of evidence should
be discharged by the proper agency of the government which is the Office of the
Solicitor General. To properly settle the issue in the case at bar, the government
should be given the opportunity to demonstrate the compelling state interest it
seeks to uphold in opposing the respondents stance that her conjugal
arrangement is not immoral and punishable as it comes within the scope of free
exercise protection. Should the Court prohibit and punish her conduct where
it is protected by the Free Exercise Clause, the Courts action would be an
unconstitutional encroachment of her right to religious freedom. [454] We
cannot therefore simply take a passing look at respondents claim of religious
freedom, but must instead apply the compelling state interest test. The
government must be heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the states compelling interest which can
override respondents religious belief and practice. To repeat, this is a case of first
impression where we are applying the compelling state interest test in a case
involving purely religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference in the
life of the respondent who stands not only before the Court but before her Jehovah
God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where it
will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on the
states compelling interest to override respondents religious belief and practice;
and (c) to show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom. The rehearing should be concluded
thirty (30) days from the Office of the Court Administrators receipt of this Decision.
SO ORDERED.
It bears emphasis that the image of a court of justice is mirrored in the conduct,
official and otherwise, of the personnel who work thereat, from the judge to the
lowest of its personnel. Court personnel have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of the courts of justice.
112
distinct sign or logo registered in the Philippine Patent Office under Patent No. 42000-03664.
[G.R. No. 153888. July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein represented
by PROF. ABDULRAFIH H. SAYEDY, petitioner, vs. OFFICE OF THE
EXECUTIVE SECRETARY of the Office of the President of the
Philippines, herein represented by HON. ALBERTO G. ROMULO,
Executive Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein
represented by its Executive Director, HABIB MUJAHAB HASHIM,
respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Dawah
Council of the Philippines, Inc. (IDCP) praying for the declaration of nullity of
Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents Office
of the Executive Secretary and Office of Muslim Affairs (OMA) from implementing
the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social
Welfare and Development License No. SB-01-085, is a non-governmental
organization that extends voluntary services to the Filipino people, especially to
Muslim communities. It claims to be a federation of national Islamic organizations
and an active member of international organizations such as the Regional Islamic
Dawah Council of Southeast Asia and the Pacific (RISEAP) [1] and The World
Assembly of Muslim Youth. The RISEAP accredited petitioner to issue
halal[2]certifications in the Philippines. Thus, among the functions petitioner carries
out is to conduct seminars, orient manufacturers on halal food and issue halal
certifications to qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products
as halal and also due to halal food producers request, petitioner formulated in
1995 internal rules and procedures based on the Quran[3] and the Sunnah[4] for the
analysis of food, inspection thereof and issuance of halal certifications. In that
same year, petitioner began to issue, for a fee, certifications to qualified products
and food manufacturers. Petitioner even adopted for use on its halal certificates a
On October 26, 2001, respondent Office of the Executive Secretary issued

EO 46[5] creating the Philippine Halal Certification Scheme and designating
respondent OMA to oversee its implementation. Under the EO, respondent OMA
has the exclusive authority to issue halal certificates and perform other related
regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal
Halal Certification was published in the Manila Bulletin, a newspaper of general
circulation. In said article, OMA warned Muslim consumers to buy only products
with its official halal certification since those without said certification had not been
subjected to careful analysis and therefore could contain pork or its derivatives.
Respondent OMA also sent letters to food manufacturers asking them to secure
the halal certification only from OMA lest they violate EO 46 and RA 4109. [6]As a
result, petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision
on the separation of Church and State.[7] It is unconstitutional for the government to
formulate policies and guidelines on the halal certification scheme because said
scheme is a function only religious organizations, entity or scholars can lawfully
and validly perform for the Muslims. According to petitioner, a food product
becomes halal only after the performance of Islamic religious ritual and
prayer. Thus, only practicing Muslims are qualified to slaughter animals for food. A
government agency like herein respondent OMA cannot therefore perform a
religious function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III
of the 1987 Constitution which provides that (n)o law impairing the obligation of
contracts, shall be passed. After the subject EO was implemented, food
manufacturers with existing contracts with petitioner ceased to obtain certifications
from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16
of Article XIII of the 1987 Constitution which respectively provide:
113
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS

Sec. 15. The State shall respect the role of independent peoples organizations to
enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful
means.
Peoples organizations are bona fide associations of citizens with demonstrated
capacity to promote the public interest and with identifiable leadership,
membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic decisionmaking shall not be abridged. The State shall, by law, facilitate, the establishment
of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and
without even consulting Muslim peoples organizations like petitioner before it
became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to
ensure the integration of Muslim Filipinos into the mainstream of Filipino
society with due regard to their beliefs, customs, traditions, and institutions. [8] OMA
deals with the societal, legal, political and economic concerns of the Muslim
community as a national cultural community and not as a religious group. Thus,
bearing in mind the constitutional barrier between the Church and State, the latter
must make sure that OMA does not intrude into purely religious matters lest it
violate the non-establishment clause and the free exercise of religion provision
found in Article III, Section 5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good.[10]
Without doubt, classifying a food product as halal is a religious function

because the standards used are drawn from the Quran and Islamic beliefs. By
giving OMA the exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations like herein petitioner
to interpret for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal certifications, the
State has in effect forced Muslims to accept its own interpretation of the Quran
and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity, the Solicitor
General argues that the freedom of religion is subservient to the police power of
the State. By delegating to OMA the authority to issue halal certifications, the
government allegedly seeks to protect and promote the muslim Filipinos right to
health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. [11] If the
government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable. In a society with a democratic framework
like ours, the State must minimize its interference with the affairs of its citizens and
instead allow them to exercise reasonable freedom of personal and religious
activity.
In the case at bar, we find no compelling justification for the government to
deprive Muslim organizations, like herein petitioner, of their religious right to
classify a product as halal, even on the premise that the health of Muslim Filipinos
can be effectively protected by assigning to OMA the exclusive power to issue
halal certifications. The protection and promotion of the Muslim Filipinos right to
health are already provided for in existing laws and ministered to by government
agencies charged with ensuring that food products released in the market are fit for
human consumption, properly labeled and safe. Unlike EO 46, these laws do not
encroach on the religious freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat
Inspection Commission (NMIC) of the Department of Agriculture (DOA) the power
to inspect slaughtered animals intended for human consumption to ensure the
safety of the meat released in the market. Another law, RA 7394, otherwise known
114
as The Consumer Act of 1992, gives to certain government departments the duty
to protect the interests of the consumer, promote his general welfare and to
establish standards of conduct for business and industry.[12] To this end, a food
product, before its distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department inspects and certifies
its compliance with quality and safety standards.[13]
One such government agency designated by RA 7394 is the Bureau of Food
and Drugs (BFD) of the Department of Health (DOH). Under Article 22 of said law,
BFD has the duty to promulgate and enforce rules and regulations fixing and
establishing a reasonable definition and standard of identity, a standard of quality
and a standard of fill of containers for food. The BFD also ensures that food
products released in the market are not adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of Trade and
Industry (DTI) is tasked to protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in Article 50.[15] DTI also
enforces compulsory labeling and fair packaging to enable the consumer to obtain
accurate information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of such products.
the Muslim consumers right to health is protected. The halal certifications issued
by petitioner and similar organizations come forward as the official religious
approval of a food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a central
administrative body to regulate halal certifications might give rise to schemers who,
for profit, will issue certifications for products that are not actually halal. Aside from
the fact that Muslim consumers can actually verify through the labels whether a
product contains non-food substances, we believe that they are discerning enough
to know who the reliable and competent certifying organizations in their community
are. Before purchasing a product, they can easily avert this perceived evil by a
diligent inquiry on the reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is
hereby declared NULL AND VOID. Consequently, respondents are prohibited from
enforcing the same.
SO ORDERED.
[16]
With these regulatory bodies given detailed functions on how to screen and
check the quality and safety of food products, the perceived danger against the
health of Muslim and non-Muslim Filipinos alike is totally avoided. Of great help are
the provisions on labeling of food products (Articles 74 to 85) [17] of RA 7394. In fact,
through these labeling provisions, the State ably informs the consuming public of
the contents of food products released in the market. Stiff sanctions are imposed
on violators of said labeling requirements.
Through the laws on food safety and quality, therefore, the
State indirectly aids Muslim consumers in differentiating food from non-food
products. The NMIC guarantees that the meat sold in the market has been
thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the DTI, Muslim
consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human
intake. These are the non-secular steps put in place by the State to ensure that
115
116
Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine
Independent Church, seeks the issuance from this court of a writ of prohibition to
prevent the respondent Director of Posts from issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in the
City of Manila of the Thirty-third international Eucharistic Congress, organized by
the Roman Catholic Church. The petitioner, in the fulfillment of what he considers
to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to
denounce the matter to the President of the Philippines. In spite of the protest of
the petitioner's attorney, the respondent publicly announced having sent to the
United States the designs of the postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The
stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094
inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said
stamps were actually issued and sold though the greater part thereof, to this day,
remains unsold. The further sale of the stamps is sought to be prevented by the
petitioner herein.
G.R. No. L-45459
March 13, 1937
GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.
The Solicitor-General contends that the writ of prohibition is not the proper legal
remedy in the instant case, although he admits that the writ may properly restrain
ministerial functions. While, generally, prohibition as an extraordinary legal writ will
not issue to restrain or control the performance of other than judicial or quasijudicial functions (50 C. J., 6580, its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to . . . inferior tribunals, corporations,
boards, or persons, whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation, board, or
person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial"
and "ministerial" used with reference to "functions" in the statute are undoubtedly
comprehensive and include the challenged act of the respondent Director of Posts
in the present case, which act because alleged to be violative of the Constitution
is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore,
117
in the jurisdiction is that the writ of prohibition is not confined exclusively to courts
or tribunals to keep them within the limits of their own jurisdiction and to prevent
them from encroaching upon the jurisdiction of other tribunals, but will issue, in
appropriate cases, to an officer or person whose acts are without or in excess of
his authority. Not infrequently, "the writ is granted, where it is necessary for the
orderly administration of justice, or to prevent the use of the strong arm of the law
in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and
Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is alleged
that this action of the respondent is violative of the provisions of section 23,
subsection 3, Article VI, of the Constitution of the Philippines, which provides as
follows:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian, institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher, minister,
or dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle of separation
of church and state. Without the necessity of adverting to the historical background
of this principle in our country, it is sufficient to say that our history, not to speak of
the history of mankind, has taught us that the union of church and state is
prejudicial to both, for ocassions might arise when the estate will use the church,
and the church the state, as a weapon in the furtherance of their recognized this
principle of separation of church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the United States and
Spain of December 10, 1898, reiterated in President McKinley's Instructions of the
Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the
autonomy Act of August 29, 1916, and finally embodied in the constitution of the
Philippines as the supreme expression of the Filipino people. It is almost trite to
say now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and

recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not denial of its influence in human affairs.
Religion as a profession of faith to an active power that binds and elevates man to
his Creator is recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly appreciated. When the
Filipino people, in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of independence under
a regime of justice, liberty and democracy," they thereby manifested reliance upon
Him who guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact, certain general
concessions are indiscriminately accorded to religious sects and denominations.
Our Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and
sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par.
[c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or
other religious teacher or dignitary as such is assigned to the armed forces or to
any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI,
Constitution of the Philippines). Optional religious instruction in the public schools
is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the
Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays
(sec. 29, Adm. Code) because of the secular idea that their observance is
conclusive to beneficial moral results. The law allows divorce but punishes
polygamy and bigamy; and certain crimes against religious worship are considered
crimes against the fundamental laws of the state (see arts. 132 and 133, Revised
Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the Philippine
Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY
THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF
118
ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE

APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF
POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made
immediately available out of any funds in the Insular Treasury not otherwise
appropriated, for the costs of plates and printing of postage stamps with new
designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works
and Communications, is hereby authorized to dispose of the whole or any portion
of the amount herein appropriated in the manner indicated and as often as may be
deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert
to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for the
costs of plates and printing of postage stamps with new designs and other
expenses incident thereto, and authorizes the Director of Posts, with the approval
of the Secretary of Public Works and Communications, to dispose of the amount
appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the postage
stamps in question appears to have been approved by authority of the President of
the Philippines in a letter dated September 1, 1936, made part of the respondent's
memorandum as Exhibit A. The respondent alleges that the Government of the
Philippines would suffer losses if the writ prayed for is granted. He estimates the
revenue to be derived from the sale of the postage stamps in question at
P1,618,17.10 and states that there still remain to be sold stamps worth
P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director
of Posts is the discretionary power to determine when the issuance of special
postage stamps would be "advantageous to the Government." Of course, the
phrase "advantageous to the Government" does not authorize the violation of the
Constitution. It does not authorize the appropriation, use or application of public
money or property for the use, benefit or support of a particular sect or church. In
the present case, however, the issuance of the postage stamps in question by the
Director of Posts and the Secretary of Public Works and Communications was not
inspired by any sectarian denomination. The stamps were not issue and sold for
the benefit of the Roman Catholic Church. Nor were money derived from the sale
of the stamps given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to advertise
the Philippines and attract more tourist to this country." The officials concerned
merely, took advantage of an event considered of international importance "to give
publicity to the Philippines and its people" (Letter of the Undersecretary of Public
Works and Communications to the President of the Philippines, June 9, 1936; p. 3,
petitioner's complaint). It is significant to note that the stamps as actually designed
and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally
planned, contains a map of the Philippines and the location of the City of Manila,
and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb.
3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila,
the capital of the Philippines, as the seat of that congress. It is obvious that while
the issuance and sale of the stamps in question may be said to be inseparably
linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not be
embarassed in its activities simply because of incidental results, more or less
religious in character, if the purpose had in view is one which could legitimately be
undertaken by appropriate legislation. The main purpose should not be frustrated
by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to
maintain inviolate the complete separation of church and state and curb any
attempt to infringe by indirection a constitutional inhibition. Indeed, in the
Philippines, once the scene of religious intolerance and prescription, care should
be taken that at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the Government is taking
sides or favoring a particular religious sect or institution. But, upon very serious
119
reflection, examination of Act No. 4052, and scrutiny of the attending

circumstances, we have come to the conclusion that there has been no
constitutional infraction in the case at bar, Act No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and Communications,
discretion to misuse postage stamps with new designs "as often as may be
deemed advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage stamps in
question still, the case of the petitioner would fail to take in weight. Between the
exercise of a poor judgment and the unconstitutionality of the step taken, a gap
exists which is yet to be filled to justify the court in setting aside the official act
assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to
costs. So ordered.
120
G.R. No. L-53487 May 25, 1981

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS
DAGAR and JESUS EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First
Instance of Leyte, Ormoc City Branch V, BARANGAY COUNCIL of Valencia,
Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen
GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO,
Barangay Secretary CONCHITA MARAYA and Barangay Treasurer LUCENA
BALTAZAR, respondents.
AQUINO, J.:1wph1.t
This case is about the constitutionality of four resolutions of the barangay council
of Valencia, Ormoc City, regarding the acquisition of the wooden image of San
Vicente Ferrer to be used in the celebration of his annual feast day. That issue was
spawned by the controversy as to whether the parish priest or a layman should
have the custody of the image.
121
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving
the traditional socio-religious celebration" every fifth day of April "of the feast day of
Seor San Vicente Ferrer, the patron saint of Valencia".
That resolution designated the members of nine committees who would take
charge of the 1976 festivity. lt provided for (1) the acquisition of the image of San
Vicente Ferrer and (2) the construction of a waiting shed as the barangay's
projects. Funds for the two projects would be obtained through the selling of tickets
and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified
that, in accordance with the practice in Eastern Leyte, Councilman Tomas
Cabatingan, the Chairman or hermano mayor of the fiesta, would be the caretaker
of the image of San Vicente Ferrer and that the image would remain in his
residence for one year and until the election of his successor as chairman of the
next feast day.
It was further provided in the resolution that the image would be made available to
the Catholic parish church during the celebration of the saint's feast day (Exh. B or
7).
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon
during a mass, Father Osmea allegedly uttered defamatory remarks against the
barangay captain, Manuel C. Veloso, apparently in connection with the disputed
image. That incident provoked Veloso to file against Father Osmea in the city
court of Ormoc City a charge for grave oral defamation.
Father Osmea retaliated by filing administrative complaints against Veloso with
the city mayor's office and the Department of Local Government and Community
Development on the grounds of immorality, grave abuse of authority, acts
unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of
Valencia. Because Father Osmea did not accede to the request of Cabatingan to
have custody of the image and "maliciously ignored" the council's Resolution No.
6, the council enacted on May 12, 1976 Resolution No. 10, authorizing the hiring of
a lawyer to file a replevin case against Father Osmea for the recovery of the
image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution
No. 12, appointing Veloso as its representative in the replevin case (Exh. D or 9).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by
the barangay general assembly on March 26, 1976. Two hundred seventy-two
voters ratified the two resolutions (Exh. 2 and 5).
The replevin case was filed in the city court of Ormoc City against Father Osmea
and Bishop Cipriano Urgel (Exh. F). After the barangay council had posted a cash
bond of eight hundred pesos, Father Osmea turned over the image to the council
(p. 10, Rollo). ln his answer to the complaint for replevin, he assailed the
constitutionality of the said resolutions (Exh. F-1).
Funds were raised by means of solicitations0 and cash donations of the barangay
residents and those of the neighboring places of Valencia. With those funds, the
waiting shed was constructed and the wooden image of San Vicente Ferrer was
acquired in Cebu City by the barangay council for four hundred pesos (Exh. F-l, 3
and 4).
Later, he and three other persons, Andres Garces, a member of the Aglipayan
Church, and two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed
against the barangay council and its members (excluding two members) a
complaint in the Court of First Instance at Ormoc City, praying for the annulment of
the said resolutions (Civil Case No. 1680-0).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic
church of Barangay Valencia so that the devotees could worship the saint during
the mass for the fiesta.
The lower court dismissed the complaint. lt upheld the validity of the resolutions.
The petitioners appealed under Republic Act No. 5440. The petitioners contend
that the barangay council was not duly constituted because lsidoro M. Maago, Jr.,
the chairman of the kabataang barangay, was not allowed to participate in its
sessions.
A controversy arose after the mass when the parish priest, Father Sergio Marilao
Osmea refused to return that image to the barangay council on the pretext that it
was the property of the church because church funds were used for its acquisition.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86

and 86-A). Presidential Decree No. 557, which took effect on September 21, 1974,
122
70 O.G. 8450-L, directed that all barrios should be known as barangays and
adopted the Revised Barrio Charter as the Barangay Charter.
appropriate public money or property for the benefit of any sect, priest or
clergyman. The image was purchased with private funds, not with tax money. The
construction of a waiting shed is entirely a secular matter.
Barrios are units of municipalities or municipal districts in which they are situated.
They are quasi-municipal corporations endowed with such powers" as are
provided by law "for the performance of particular government functions, to be
exercised by and through their respective barrio governments in conformity with
law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).
Manifestly puerile and flimsy is Petitioners argument that the barangay council
favored the Catholic religion by using the funds raised by solicitations and
donations for the purchase of the patron saint's wooden image and making the
image available to the Catholic church.
The barrio assembly consists of all persons who are residents of the barrio for at
least six months, eighteen years of age or over and Filipino citizens duly registered
in the list kept by the barrio secretary (Sec. 4, Ibid).
The preposterousness of that argument is rendered more evident by the fact that
counsel advanced that argument in behalf of the petitioner, Father Osmea the
parish priest.
The barrio council, now barangay council, is composed of the barangay captain
and six councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which
took effect on April 15, 1975, provides that "the barangay youth chairman shall be
an ex-officio member of the barangay council", having the same powers and
functions as a barangay councilman.
The wooden image was purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of
favoring any religion nor interfering with religious matters or the religious beliefs of
the barrio residents. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in the church when
the mass was celebrated.
In this case, Maago, the barangay youth chairman, was notified of the sessions of
the barangay council to be held on March 23 and 26, 1976 but he was not able to
attend those sessions because he was working with a construction company
based at Ipil, Ormoc City (Par. 2[d] Exh. 1).
Maago's absence from the sessions of the barangay council did not render the
said resolutions void. There was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the
constitutional provisions that "no law shall be made respecting an establishment of
religion" and that "no public money or property shall ever be appropriated, applied,
paid, or used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher or
dignitary as such. except when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal institution, or government orphanage
or leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do not
directly or indirectly establish any religion, nor abridge religious liberty, nor
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron

saint for the barrio, then any activity intended to facilitate the worship of the patron
saint (such as the acquisition and display of his image) cannot be branded as
illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its
celebration is an ingrained tradition in rural communities. The fiesta relieves the
monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden image
in order to forestall any suspicion that it is favoring the Catholic church. A more
practical reason for that arrangement would be that the image, if placed in a
layman's custody, could easily be made available to any family desiring to borrow
the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits.
Petitioner Garces swore that the said resolutions favored the Catholic church. On
the other hand, petitioners Dagar and Edullantes swore that the
123
resolutions prejudiced the Catholics because they could see the image in the
church only once a year or during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of
religion annd the use of public money to favor any sect or church are not involved
at all in this case even remotely or indirectly. lt is not a microcosmic test case on
those issues.
This case is a petty quarrel over the custody of a saint's image. lt would never
have arisen if the parties had been more diplomatic and tactful and if Father
Osmea had taken the trouble of causing contributions to be solicited from his own
parishioners for the purchase of another image of San Vicente Ferrer to be
installed in his church.
There can be no question that the image in question belongs to the barangay
council. Father Osmea claim that it belongs to his church is wrong. The barangay
council, as owner of the image, has the right to determine who should have
custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic
church. that action would not violate the Constitution because the image was
acquired with private funds and is its private property.
The council has the right to take measures to recover possession of the image by
enacting Resolutions Nos. 10 and 12.
Not every governmental activity which involves the expenditure of public funds and
which has some religious tint is violative of the constitutional provisions regarding
separation of church and state, freedom of worship and banning the use of public
money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which
appropriated sixty thousand pesos for the cost of plates and the printing of postage
stamps with new designs. Under the law, the Director of Posts, with the approval of
the Department Head and the President of the Philippines, issued in 1936 postage
stamps to commemorate the celebration in Manila of the 33rd International
Eucharistic Congress sponsored by the Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The
design of the stamps showed a map of the Philippines and nothing about the
Catholic Church. No religious purpose was intended.
Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent
Church, sought to enjoin the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event
of a religious character, was not designed as a propaganda for the Catholic
Church. Aglipay's prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil.,
627 and 55 Phil. 307, where a religious brotherhood, La Archicofradia del
Santisimo Sacramento, organized for the purpose of raising funds to meet the
expenses for the annual fiesta in honor of the Most Holy Sacrament and the Virgin
Lady of Guadalupe, was held accountable for the funds which it held as trustee. 0
Finding that the petitioners have no cause of action for the annulment of the
barangay resolutions, the lower court's judgment dismissing their amended petition
is affirmed. No costs.
SO ORDERED.
124

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G.R. No.

April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE

one that history authenticates, to pass upon every assertion of an alleged

An eloquent excerpt from a leading American decision 10 admonishes though

The vital need in a constitutional democracy for freedom of expression is

guaranty. It represents a profound commitment to the principle that debate of

evil' sought to be prevented." It has the advantage of establishing according to the

This test then as a limitation on freedom of expression is justified by the danger or

In the United States, in the absence of an explicit provision of such character, it is

It is a well-settled principle that stricter standard of permissible statutory vagueness

The other acts, likewise deemed included in "election campaign" or "partisan

- versus COURT OF APPEALS, PEOPLE

"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence

Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito.

Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga

Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at

Abangan bukas ang mga raket ni So sa BOC.

WHEREIN said complainant was indicated as an extortionist, a corrupt public

WHEREIN said complainant was indicated as an extortionist, a corrupt public

Criminal Case No. 99-1600

"Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din

Panghihingi ng pera sa mga brokers, ang lakad nito.

Petitions for Review on Certiorari under Rule 45

1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY

2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL

His co-accused assigned the following errors:

Into Account The Unrebutted Evidence That Petitioners Had No Participation In

The petitions must be dismissed.

Freedom of the Press v. Responsibility of the Press

The assignment of errors of petitioner Tulfo shall be discussed first.

C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That

tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan

to allow an adequate margin of error by protecting some inaccuracies. It is for the

In order that the publication of a report of an official proceeding may be considered

(b) That it is made in good faith; and

Leaving the discussion of qualified privileged communication, Tulfo also argues

The author or editor of a book or pamphlet, or the editor or business manager of a

"The question then recurs as to whether the manager or proprietor of a newspaper

opinion that the proprietor of a newspaper was answerable criminally as well as

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

G.R. No. L-1800

January 27, 1948

be secured, or partiality and oppression prevented." and that "when we

a purpose, and no grant of absolute discretion to suppress lawful action

allows great latitude in public parades and emonstrations whether religious or

light because he thought it his religious duty to disobey the municipal

assembly is a measure so stringent that it would be inappropriate as the

G.R. No. L-31195 June 5, 1973

3. That on March 2, 1969 complainant company learned of the

Leon warned the PBMEO representatives that workers who

demonstration on March 4, 1969, with the respondent Court, a charge against

mistakes of judgment or only as faults in the exercise of

or procedure and shall have such other powers as generally

As was so aptly expressed by Justice Moreland in Alonso v.

... But even if we should sense no danger to our own liberties,

Instead of stifling criticism, the Bank should have allowed the

[G.R. Nos. 117267-117310. August 22, 1996]

2. Ex-Governor Armando C. Gustilo,[3]

9. T/Sgt. Generoso N. Subayco,

28. Fmn. Gene Legaspina,

10. S/Sgt. Quirino L. Amar,

29. Fmn. Giomar D. Gale,

11. Sgt. Rolando A. Braa,