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CLOSED SHOP UNION

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


BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE
ROPE WORKERS' UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.

ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in
its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the
"Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as
Company) since 1958. As such employee, he was a member of the Elizalde Rope Workers' Union
(hereinafter referred to as Union) which had with the Company a collective bargaining agreement
containing a closed shop provision which reads as follows:
Membership in the Union shall be required as a condition of employment for all
permanent employees workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March
4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No.
3350, the employer was not precluded "from making an agreement with a labor organization to require as
a condition of employment membership therein, if such labor organization is the representative of the
employees." On June 18, 1961, however, Republic Act No. 3350 was enacted, introducing an amendment
to paragraph (4) subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such
agreement shall not cover members of any religious sects which prohibit affiliation of their members in
any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its members with any labor organization,
Appellee presented his resignation to appellant Union in 1962, and when no action was taken thereon, he
reiterated his resignation on September 3, 1974. Thereupon, the Union wrote a formal letter to the
Company asking the latter to separate Appellee from the service in view of the fact that he was resigning
from the Union as a member. The management of the Company in turn notified Appellee and his counsel
that unless the Appellee could achieve a satisfactory arrangement with the Union, the Company would be
constrained to dismiss him from the service. This prompted Appellee to file an action for injunction,
docketed as Civil Case No. 58894 in the Court of First Instance of Manila to enjoin the Company and the
Union from dismissing Appellee. 1 In its answer, the Union invoked the "union security clause" of the
collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended
that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d)

and (e). 2 Upon the facts agreed upon by the parties during the pre-trial conference, the Court a
quo rendered its decision on August 26, 1965, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde
Rope Factory, Inc. from dismissing the plaintiff from his present employment and
sentencing the defendant Elizalde Rope Workers' Union to pay the plaintiff P500 for
attorney's fees and the costs of this action.3
From this decision, the Union appealed directly to this Court on purely questions of law, assigning the
following errors:
I. That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.
II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum
of P500 as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the
Act infringes on the fundamental right to form lawful associations; that "the very phraseology of said
Republic Act 3350, that membership in a labor organization is banned to all those belonging to such
religious sect prohibiting affiliation with any labor organization" 4 , "prohibits all the members of a given
religious sect from joining any labor union if such sect prohibits affiliations of their members thereto" 5 ;
and, consequently, deprives said members of their constitutional right to form or join lawful associations or
organizations guaranteed by the Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of
the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation
of contracts in that, while the Union is obliged to comply with its collective bargaining agreement
containing a "closed shop provision," the Act relieves the employer from its reciprocal obligation of
cooperating in the maintenance of union membership as a condition of employment; and that said Act,
furthermore, impairs the Union's rights as it deprives the union of dues from members who, under the Act,
are relieved from the obligation to continue as such members. 7
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects
which ban their members from joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935
Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or protection to
labor organizations. 8
Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious
test shall be required for the exercise of a civil right," in that the laborer's exercise of his civil right to join
associations for purposes not contrary to law has to be determined under the Act by his affiliation with a
religious sect; that conversely, if a worker has to sever his religious connection with a sect that prohibits
membership in a labor organization in order to be able to join a labor organization, said Act would violate
religious freedom. 9
Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of
the Constitution, it being a discriminately legislation, inasmuch as by exempting from the operation of
closed shop agreement the members of the "Iglesia ni Cristo", it has granted said members undue
advantages over their fellow workers, for while the Act exempts them from union obligation and liability, it
nevertheless entitles them at the same time to the enjoyment of all concessions, benefits and other
emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the
promotion of social justice. 11

Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining
agreement cannot be considered violative of religious freedom, as to call for the amendment introduced
by Republic Act No. 3350;12 and that unless Republic Act No. 3350 is declared unconstitutional, trade
unionism in this country would be wiped out as employers would prefer to hire or employ members of the
Iglesia ni Cristo in order to do away with labor organizations. 13
Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the
right to form lawful associations, for the right to join associations includes the right not to join or to resign
from a labor organization, if one's conscience does not allow his membership therein, and the Act has
given substance to such right by prohibiting the compulsion of workers to join labor organizations; 14 that
said Act does not impair the obligation of contracts for said law formed part of, and was incorporated into,
the terms of the closed shop agreement; 15that the Act does not violate the establishment of religion
clause or separation of Church and State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its members from joining labor unions, and
balanced the collective rights of organized labor with the constitutional right of an individual to freely
exercise his chosen religion; that the constitutional right to the free exercise of one's religion has primacy
and preference over union security measures which are merely contractual 16 ; that said Act does not
violate the constitutional provision of equal protection, for the classification of workers under the Act
depending on their religious tenets is based on substantial distinction, is germane to the purpose of the
law, and applies to all the members of a given class; 17 that said Act, finally, does not violate the social
justice policy of the Constitution, for said Act was enacted precisely to equalize employment opportunities
for all citizens in the midst of the diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are
some thoroughly established principles which must be followed in all cases where questions of
constitutionality as obtains in the instant case are involved. All presumptions are indulged in favor of
constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a
reasonable doubt, that a law may work hardship does not render it unconstitutional; that if any reasonable
basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all
possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a
statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation
should be adopted. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such
religious sects that forbid affiliation of their members with labor unions from joining labor unions appears
nowhere in the wording of Republic Act No. 3350; neither can the same be deduced by necessary
implication therefrom. It is not surprising, therefore, that appellant, having thus misread the Act, committed
the error of contending that said Act is obnoxious to the constitutional provision on freedom of association.
Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article
III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that
the right to form associations or societies for purposes not contrary to law shall not be abridged. Section 3
of Republic Act No. 875 provides that employees shall have the right to self-organization and to form, join
of assist labor organizations of their own choosing for the purpose of collective bargaining and to engage
in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the
Constitution and the Industrial Peace Act recognize and guarantee is the "right" to form or join
associations. Notwithstanding the different theories propounded by the different schools of jurisprudence
regarding the nature and contents of a "right", it can be safely said that whatever theory one subscribes
to, a right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of
legal restraint, whereby an employee may act for himself without being prevented by law; and second,
power, whereby an employee may, as he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he should join or not an association; and
should he choose to join, he himself makes up his mind as to which association he would join; and even
after he has joined, he still retains the liberty and the power to leave and cancel his membership with said
organization at any time. 20 It is clear, therefore, that the right to join a union includes the right to abstain

from joining any union. 21 Inasmuch as what both the Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the "right" to join associations of his choice, it would be
absurd to say that the law also imposes, in the same breath, upon the employee the duty to join
associations. The law does not enjoin an employee to sign up with any association.
The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is,
however, limited. The legal protection granted to such right to refrain from joining is withdrawn by
operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which
the employer may employ only member of the collective bargaining union, and the employees must
continue to be members of the union for the duration of the contract in order to keep their jobs. Thus
Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides
that although it would be an unfair labor practice for an employer "to discriminate in regard to hire or
tenure of employment or any term or condition of employment to encourage or discourage membership in
any labor organization" the employer is, however, not precluded "from making an agreement with a labor
organization to require as a condition of employment membership therein, if such labor organization is the
representative of the employees". By virtue, therefore, of a closed shop agreement, before the enactment
of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or to
keep his employment, he must become a member of the collective bargaining union. Hence, the right of
said employee not to join the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an
exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such
agreement shall not cover members of any religious sects which prohibit affiliation of their members in
any such labor organization". Republic Act No. 3350 merely excludes ipso jure from the application and
coverage of the closed shop agreement the employees belonging to any religious sects which prohibit
affiliation of their members with any labor organization. What the exception provides, therefore, is that
members of said religious sects cannot be compelled or coerced to join labor unions even when said
unions have closed shop agreements with the employers; that in spite of any closed shop agreement,
members of said religious sects cannot be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed
Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It
does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to
said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding
their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can
do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does
not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or
labor union compel them to join. Republic Act No. 3350, therefore, does not violate the constitutional
provision on freedom of association.
2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract,
specifically, the "union security clause" embodied in its Collective Bargaining Agreement with the
Company, by virtue of which "membership in the union was required as a condition for employment for all
permanent employees workers". This agreement was already in existence at the time Republic Act No.
3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to have been incorporated into
the agreement. But by reason of this amendment, Appellee, as well as others similarly situated, could no
longer be dismissed from his job even if he should cease to be a member, or disaffiliate from the Union,
and the Company could continue employing him notwithstanding his disaffiliation from the Union. The Act,
therefore, introduced a change into the express terms of the union security clause; the Company was
partly absolved by law from the contractual obligation it had with the Union of employing only Union
members in permanent positions, It cannot be denied, therefore, that there was indeed an impairment of
said union security clause.
According to Black, any statute which introduces a change into the express terms of the contract, or its
legal construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the contract.
The extent of the change is not material. It is not a question of degree or manner or cause, but of

encroaching in any respect on its obligation or dispensing with any part of its force. There is an
impairment of the contract if either party is absolved by law from its performance. 22 Impairment has also
been predicated on laws which, without destroying contracts, derogate from substantial contractual
rights. 23
It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not
absolute and unqualified. The prohibition is general, affording a broad outline and requiring construction
to fill in the details. The prohibition is not to be read with literal exactness like a mathematical formula, for
it prohibits unreasonable impairment only. 24 In spite of the constitutional prohibition, the State continues
to possess authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding
said interests may modify or abrogate contracts already in effect. 25 For not only are existing laws read
into contracts in order to fix the obligations as between the parties, but the reservation of essential
attributes of sovereign power is also read into contracts as a postulate of the legal order. All contracts
made with reference to any matter that is subject to regulation under the police power must be
understood as made in reference to the possible exercise of that power. 26 Otherwise, important and
valuable reforms may be precluded by the simple device of entering into contracts for the purpose of
doing that which otherwise may be prohibited. The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a
government which retains adequate authority to secure the peace and good order of society. The contract
clause of the Constitution must, therefore, be not only in harmony with, but also in subordination to, in
appropriate instances, the reserved power of the state to safeguard the vital interests of the people. It
follows that not all legislations, which have the effect of impairing a contract, are obnoxious to the
constitutional prohibition as to impairment, and a statute passed in the legitimate exercise of police power,
although it incidentally destroys existing contract rights, must be upheld by the courts. This has special
application to contracts regulating relations between capital and labor which are not merely contractual,
and said labor contracts, for being impressed with public interest, must yield to the common good. 27
In several occasions this Court declared that the prohibition against impairing the obligations of contracts
has no application to statutes relating to public subjects within the domain of the general legislative
powers of the state involving public welfare. 28 Thus, this Court also held that the Blue Sunday Law was
not an infringement of the obligation of a contract that required the employer to furnish work on Sundays
to his employees, the law having been enacted to secure the well-being and happiness of the laboring
class, and being, furthermore, a legitimate exercise of the police power.29
In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging
yardstick, applicable at all times and under all circumstances, by which the validity of each statute may be
measured or determined, has been fashioned, but every case must be determined upon its own
circumstances. Legislation impairing the obligation of contracts can be sustained when it is enacted for
the promotion of the general good of the people, and when the means adopted to secure that end are
reasonable. Both the end sought and the means adopted must be legitimate, i.e., within the scope of the
reserved power of the state construed in harmony with the constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure
freedom of belief and religion, and to promote the general welfare by preventing discrimination against
those members of religious sects which prohibit their members from joining labor unions, confirming
thereby their natural, statutory and constitutional right to work, the fruits of which work are usually the only
means whereby they can maintain their own life and the life of their dependents. It cannot be gainsaid that
said purpose is legitimate.
The questioned Act also provides protection to members of said religious sects against two aggregates of
group strength from which the individual needs protection. The individual employee, at various times in
his working life, is confronted by two aggregates of power collective labor, directed by a union, and
collective capital, directed by management. The union, an institution developed to organize labor into a
collective force and thus protect the individual employee from the power of collective capital, is,
paradoxically, both the champion of employee rights, and a new source of their frustration. Moreover,

when the Union interacts with management, it produces yet a third aggregate of group strength from
which the individual also needs protection the collective bargaining relationship. 31
The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill
No. 5859, which later became Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who, on account of his
religious beliefs and convictions, cannot accept membership in a labor organization
although he possesses all the qualifications for the job. This is tantamount to punishing
such person for believing in a doctrine he has a right under the law to believe in. The law
would not allow discrimination to flourish to the detriment of those whose religion discards
membership in any labor organization. Likewise, the law would not commend the
deprivation of their right to work and pursue a modest means of livelihood, without in any
manner violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose exempting
the members of said religious sects from coverage of union security agreements is reasonable.
It may not be amiss to point out here that the free exercise of religious profession or belief is superior to
contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the
United States has also declared on several occasions that the rights in the First Amendment, which
include freedom of religion, enjoy a preferred position in the constitutional system. 33 Religious freedom,
although not unlimited, is a fundamental personal right and liberty, 34 and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where
unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union
averred that said Act discriminates in favor of members of said religious sects in violation of Section 1 (7)
of Article Ill of the 1935 Constitution, and which is now Section 8 of Article IV of the 1973 Constitution,
which provides:
No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and enjoyment of religious profession and
worship, without discrimination and preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.
The constitutional provision into only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship, 35 but also assures the free exercise of one's chosen form of religion
within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. 36 Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. 37 But if the stage regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's
secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be precluded from
pursuing valid objectives secular in character even if the incidental result would be favorable to a religion
or sect. It has likewise been held that the statute, in order to withstand the strictures of constitutional

prohibition, must have a secular legislative purpose and a primary effect that neither advances nor inhibits
religion. 40 Assessed by these criteria, Republic Act No. 3350 cannot be said to violate the constitutional
inhibition of the "no-establishment" (of religion) clause of the Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy
and eternal. It was intended to serve the secular purpose of advancing the constitutional right to the free
exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by
reason of union security agreements. To help its citizens to find gainful employment whereby they can
make a living to support themselves and their families is a valid objective of the state. In fact, the state is
enjoined, in the 1935 Constitution, to afford protection to labor, and regulate the relations between labor
and capital and industry. 41 More so now in the 1973 Constitution where it is mandated that "the State
shall afford protection to labor, promote full employment and equality in employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the relation between workers and
employers. 42
The primary effects of the exemption from closed shop agreements in favor of members of religious sects
that prohibit their members from affiliating with a labor organization, is the protection of said employees
against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs; and by eliminating to a certain extent economic insecurity due to
unemployment, which is a serious menace to the health, morals, and welfare of the people of the State,
the Act also promotes the well-being of society. It is our view that the exemption from the effects of closed
shop agreement does not directly advance, or diminish, the interests of any particular religion. Although
the exemption may benefit those who are members of religious sects that prohibit their members from
joining labor unions, the benefit upon the religious sects is merely incidental and indirect. The
"establishment clause" (of religion) does not ban regulation on conduct whose reason or effect merely
happens to coincide or harmonize with the tenets of some or all religions. 43 The free exercise clause of
the Constitution has been interpreted to require that religious exercise be preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the
constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden
that is imposed by union security agreements. It was Congress itself that imposed that burden when it
enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it so deems advisable,
could take away the same burden. It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scrupples of conscience, exemptions ought to be
granted unless some "compelling state interest" intervenes. 45 In the instant case, We see no such
compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves
no right to, and is silent as to the protection of, labor organizations. The purpose of Republic Act No. 3350
was not to grant rights to labor unions. The rights of labor unions are amply provided for in Republic Act
No. 875 and the new Labor Code. As to the lamented silence of the Act regarding the rights and
protection of labor unions, suffice it to say, first, that the validity of a statute is determined by its
provisions, not by its silence 46 ; and, second, the fact that the law may work hardship does not render it
unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel persons to join and remain members
of a union to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor
unions, Congress has seen it fit to exempt religious objectors lest their resistance spread to other
workers, for religious objections have contagious potentialities more than political and philosophic
objections.
Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor
union assuming that such unity and loyalty can be attained through coercion is not a goal that is

constitutionally obtainable at the expense of religious liberty. 48 A desirable end cannot be promoted by
prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against
requiring a religious test for the exercise of a civil right or a political right, is not well taken. The Act does
not require as a qualification, or condition, for joining any lawful association membership in any particular
religion or in any religious sect; neither does the Act require affiliation with a religious sect that prohibits its
members from joining a labor union as a condition or qualification for withdrawing from a labor union.
Joining or withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts
members with such religious affiliation from the coverage of closed shop agreements. So, under this Act,
a religious objector is not required to do a positive act to exercise the right to join or to resign from the
union. He is exempted ipso jure without need of any positive act on his part. A conscientious religious
objector need not perform a positive act or exercise the right of resigning from the labor union he is
exempted from the coverage of any closed shop agreement that a labor union may have entered into.
How then can there be a religious test required for the exercise of a right when no right need be
exercised?
We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its
purpose was legal and in consonance with the Constitution. It is never an illegal evasion of a
constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by
discovering or following a legal way to do it.49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch
as it grants to the members of certain religious sects undue advantages over other workers, thus violating
Section 1 of Article III of the 1935 Constitution which forbids the denial to any person of the equal
protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights.
The Constitution does not require that things which are different in fact be treated in law as though they
were the same. The equal protection clause does not forbid discrimination as to things that are
different. 51 It does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in
the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. 52 The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. 53 All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the purpose of the law; that it must
not be limited to existing conditions only; and that it must apply equally to each member of the
class. 54 This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. 57 Neither is it
necessary that the classification be made with mathematical nicety. 58 Hence legislative classification may
in many cases properly rest on narrow distinctions, 59 for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.

We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies
employees and workers, as to the effect and coverage of union shop security agreements, into those who
by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose
religion does not prohibit membership in labor unions. Tile classification rests on real or substantial, not
merely imaginary or whimsical, distinctions. There is such real distinction in the beliefs, feelings and
sentiments of employees. Employees do not believe in the same religious faith and different religions
differ in their dogmas and cannons. Religious beliefs, manifestations and practices, though they are found
in all places, and in all times, take so many varied forms as to be almost beyond imagination. There are
many views that comprise the broad spectrum of religious beliefs among the people. There are diverse
manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. Today
the country is far more heterogenous in religion than before, differences in religion do exist, and these
differences are important and should not be ignored.
Even from the phychological point of view, the classification is based on real and important differences.
Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for they carry with them
practical consequences and are the motives of certain rules. of human conduct and the justification of
certain acts. 60 Religious sentiment makes a man view things and events in their relation to his God. It
gives to human life its distinctive character, its tone, its happiness or unhappiness its enjoyment or
irksomeness. Usually, a strong and passionate desire is involved in a religious belief. To certain persons,
no single factor of their experience is more important to them than their religion, or their not having any
religion. Because of differences in religious belief and sentiments, a very poor person may consider
himself better than the rich, and the man who even lacks the necessities of life may be more cheerful than
the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most painful and excruciating pains. Because
of differences in religious beliefs, the world has witnessed turmoil, civil strife, persecution, hatred,
bloodshed and war, generated to a large extent by members of sects who were intolerant of other
religious beliefs. The classification, introduced by Republic Act No. 3350, therefore, rests on substantial
distinctions.
The classification introduced by said Act is also germane to its purpose. The purpose of the law is
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being
deprived of their right to work and from being dismissed from their work because of union shop security
agreements.
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its
enactment. The law does not provide that it is to be effective for a certain period of time only. It is intended
to apply for all times as long as the conditions to which the law is applicable exist. As long as there are
closed shop agreements between an employer and a labor union, and there are employees who are
prohibited by their religion from affiliating with labor unions, their exemption from the coverage of said
agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from its provision. The
fact that the law grants a privilege to members of said religious sects cannot by itself render the Act
unconstitutional, for as We have adverted to, the Act only restores to them their freedom of association
which closed shop agreements have taken away, and puts them in the same plane as the other workers
who are not prohibited by their religion from joining labor unions. The circumstance, that the other
employees, because they are differently situated, are not granted the same privilege, does not render the
law unconstitutional, for every classification allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation by law produces inequality in
some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not
offend the constitution simply because in practice it results in some inequality. 61 Anent this matter, it has
been said that whenever it is apparent from the scope of the law that its object is for the benefit of the

public and the means by which the benefit is to be obtained are of public character, the law will be upheld
even though incidental advantage may occur to individuals beyond those enjoyed by the general public. 62
6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social
justice is also baseless. Social justice is intended to promote the welfare of all the people. 63 Republic Act
No. 3350 promotes that welfare insofar as it looks after the welfare of those who, because of their
religious belief, cannot join labor unions; the Act prevents their being deprived of work and of the means
of livelihood. In determining whether any particular measure is for public advantage, it is not necessary
that the entire state be directly benefited it is sufficient that a portion of the state be benefited thereby.
Social justice also means the adoption by the Government of measures calculated to insure economic
stability of all component elements of society, through the maintenance of a proper economic and social
equilibrium in the inter-relations of the members of the community. 64 Republic Act No. 3350 insures
economic stability to the members of a religious sect, like the Iglesia ni Cristo, who are also component
elements of society, for it insures security in their employment, notwithstanding their failure to join a labor
union having a closed shop agreement with the employer. The Act also advances the proper economic
and social equilibrium between labor unions and employees who cannot join labor unions, for it exempts
the latter from the compelling necessity of joining labor unions that have closed shop agreements and
equalizes, in so far as opportunity to work is concerned, those whose religion prohibits membership in
labor unions with those whose religion does not prohibit said membership. Social justice does not imply
social equality, because social inequality will always exist as long as social relations depend on personal
or subjective proclivities. Social justice does not require legal equality because legal equality, being a
relative term, is necessarily premised on differentiations based on personal or natural conditions. 65 Social
justice guarantees equality of opportunity 66 , and this is precisely what Republic Act No. 3350 proposes to
accomplish it gives laborers, irrespective of their religious scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not
called for in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been
held that a statute which is not necessary is not, for that reason, unconstitutional; that in determining the
constitutional validity of legislation, the courts are unconcerned with issues as to the necessity for the
enactment of the legislation in question. 67 Courts do inquire into the wisdom of laws. 68 Moreover,
legislatures, being chosen by the people, are presumed to understand and correctly appreciate the needs
of the people, and it may change the laws accordingly. 69 The fear is entertained by appellant that unless
the Act is declared unconstitutional, employers will prefer employing members of religious sects that
prohibit their members from joining labor unions, and thus be a fatal blow to unionism. We do not agree.
The threat to unionism will depend on the number of employees who are members of the religious sects
that control the demands of the labor market. But there is really no occasion now to go further and
anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a statute
is to be determined from its general purpose and its efficacy to accomplish the end desired, not from its
effects on a particular case. 70 The essential basis for the exercise of power, and not a mere incidental
result arising from its exertion, is the criterion by which the validity of a statute is to be measured. 71
II. We now pass on the second assignment of error, in support of which the Union argued that the
decision of the trial court ordering the Union to pay P500 for attorney's fees directly contravenes Section
24 of Republic Act No. 875, for the instant action involves an industrial dispute wherein the Union was a
party, and said Union merely acted in the exercise of its rights under the union shop provision of its
existing collective bargaining contract with the Company; that said order also contravenes Article 2208 of
the Civil Code; that, furthermore, Appellee was never actually dismissed by the defendant Company and
did not therefore suffer any damage at all . 72
In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no
industrial dispute involved in the attempt to compel Appellee to maintain its membership in the union
under pain of dismissal, and that the Union, by its act, inflicted intentional harm on Appellee; that since
Appellee was compelled to institute an action to protect his right to work, appellant could legally be
ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides
that:
No suit, action or other proceedings shall be maintainable in any court against a labor
organization or any officer or member thereof for any act done by or on behalf of such
organization in furtherance of an industrial dispute to which it is a party, on the ground
only that such act induces some other person to break a contract of employment or that it
is in restraint of trade or interferes with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or labor. (Emphasis
supplied)
That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge
of respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a
question involving tenure of employment is included in the term "labor dispute". 74 The discharge or the
act of seeking it is the labor dispute itself. It being the labor dispute itself, that very same act of the Union
in asking the employer to dismiss Appellee cannot be "an act done ... in furtherance of an industrial
dispute". The mere fact that appellant is a labor union does not necessarily mean that all its acts are in
furtherance of an industrial dispute. 75 Appellant Union, therefore, cannot invoke in its favor Section 24 of
Republic Act No. 875. This case is not intertwined with any unfair labor practice case existing at the time
when Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides
that attorney's fees and expenses of litigation may be awarded "when the defendant's act or omission has
compelled the plaintiff ... to incur expenses to protect his interest"; and "in any other case where the court
deems it just and equitable that attorney's fees and expenses of litigation should be recovered". In the
instant case, it cannot be gainsaid that appellant Union's act in demanding Appellee's dismissal caused
Appellee to incur expenses to prevent his being dismissed from his job. Costs according to Section 1,
Rule 142, of the Rules of Court, shall be allowed as a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of
First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs against
appellant Union. It is so ordered.
Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muoz Palma and Aquino,
JJ., concur.

IMMORALITY AND FREEDOM OF RELIGION

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR,respondent.


DECISION
PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands accountable
to an authority higher than the state. To be held on balance are the states interest and the respondents
religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty
is most delicate because to the person invoking religious freedom, the consequences of the case are not
only temporal. The task is not made easier by the American origin of our religion clauses and the wealth
of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely
controverted area of constitutional interpretation than the religion clauses. [1] The U.S. Supreme Court
itself has acknowledged that in this constitutional area, there is considerable internal inconsistency in the
opinions of the Court.[2] As stated by a professor of law, (i)t is by now notorious that legal doctrines and
judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of
constitutional
law
have
confusion
and
inconsistency
achieved
such
undisputed
sovereignty.[3] Nevertheless, this thicket is the only path to take to conquer the mountain of a legal
problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will
largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question
arose in an administrative case involving only one person does not alter the paramount importance of the
question for the constitution commands the positive protection by government of religious freedom -not
only for a minority, however small- not only for a majority, however large- but for each of us. [4]

I. Facts
The facts of the case will determine whether respondent will prevail in her plea of religious
freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose
F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a
man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not
personally related either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor,
Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her act. [5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the
allegation and challenged Estrada to appear in the open and prove his allegation in the proper
forum.[6] Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the
inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an
administrative complaint against him and said case was still pending in the Office of the Court
Administrator (OCA). Escritors motion was denied. The preliminary conference proceeded with both
Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality
against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from
conversations therein that Escritor was living with a man not her husband and that she had an eighteen to
twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that
employees of the judiciary should be respectable and Escritors live-in arrangement did not command
respect.[7]
Respondent Escritor testified that when she entered the judiciary in 1999, [8] she was already a
widow, her husband having died in 1998. [9] She admitted that she has been living with Luciano Quilapio,
Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the
religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together,
she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in
marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by
the proper public authorities and that it is because of having been unable to do so that I therefore make
this public declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and
honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future time a change in circumstances
make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar pledge on the same day.[11] Both pledges were executed in
Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband
was still alive but living with another woman. Quilapio was likewise married at that time, but had been
separated in fact from his wife. During her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their Declarations of Pledging Faithfulness, but Judge
Caoibes deemed it unnecessary and considered her identification of her signature and the signature of
Quilapio sufficient authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez,
endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001,
recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to
charge against her. In her comment, Escritor reiterated her religious congregations
conjugal arrangement with Quilapio, viz:

Jr., who, in turn,


the Court, upon
comment on the
approval of her

Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is
no truth as to the veracity of same allegation. Included herewith are documents denominated as
Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her
mate in marital relationship with the witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons
to be held to and honored in full accord with the principles of Gods Word.
xxx
xxx

xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high
authority in relation to her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and
recommendation. In the course of Judge Macedas investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain the basis of her congregations
belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years
ago when her husband was still alive but living with another woman. She met this woman who confirmed
to her that she was living with her (Escritors) husband. [14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a Declaration of Pledging
Faithfulness, viz:

Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular
rules and regulations in your congregation?
A:

Well, we of course, talk to the persons with regards (sic) to all the parties involved and then
we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document?


A:

Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are
suppose (sic) to execute this document?
A:

This must be signed, the document must be signed by the elders of the congregation; the
couple, who is a member (sic) of the congregation, baptized member and true member of
the congregation.

Q: What standard rules and regulations do you have in relation with this document?
A:

Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put themselves
on record before God and man that they are faithful to each other. As if that relation is
validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between the
parties, who are members of the congregation?
A:

It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q: And what does pledge mean to you?


A:

It means to me that they have contracted, let us say, I am the one who contracted with the
opposite member of my congregation, opposite sex, and that this document will give us the
right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for
you to enter a marriage?
A:

Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A:

Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the
right to cohabit?
A:

Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twentytwo. 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 theWatchtower 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 assumingarguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation and serves only the internal
purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally
upright couple. Their religious belief and practice, however, cannot override the norms of conduct
required by law for government employees. To rule otherwise would create a dangerous precedent as
those who cannot legalize their live-in relationship can simply join the Jehovahs Witnesses congregation
and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with
Quilapio based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of
the magazine article entitled, Maintaining Marriage Before God and Men, in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her
mate greatly affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize
(sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to

understand the relative nature of Caesars authority regarding marriage. From country to country,
marriage and divorce legislation presents a multitude of different angles and aspects. Rather than
becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a
disciple of Gods Son, can be guided by basic Scriptural principles that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that ones present
relationship, or the relationship into which he or she contemplates entering, is one that could meet with
Gods approval, or whether in itself, it violates the standards of Gods Word. Take, for example, the
situation where a man lives with a wife but also spends time living with another woman as a
concubine. As long as such a state of concubinage prevails, the relationship of the second woman can
never be harmonized with Christian principles, nor could any declaration on the part of the woman or the
man make it so. The only right course is cessation of the relationship. Similarly with an incestuous
relationship with a member of ones immediate family, or a homosexual relationship or other such
situation condemned by Gods Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person
involved in such a situation could not make any kind of Declaration of Faithfulness, since it would have
no merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a second principle to consider is that one
should do all one can to establish the honorableness of ones marital union in the eyes of all. (Heb.
13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on
whatever legal grounds may be available), the present union can receive civil validation as a recognized
marriage.
Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one
has done all that can reasonably be done to have it recognized by civil authorities and has been blocked
in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted,
the extreme slowness of official action may make accomplishing of legal steps a matter of many, many
years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would
need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the
congregation with the basis for viewing the existing union as honorable while the individual continues
conscientiously to work out the legal aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be
able to approach the matter in a balanced way, neither underestimating nor overestimating the validation
offered by the political state. She always gives primary concern to Gods view of the union. Along with
this, every effort should be made to set a fine example of faithfulness and devotion to ones mate, thus,
keeping the marriage honorable among all. Such course will bring Gods blessing and result to the
honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33) [20]
Respondent also brought to the attention of the investigating judge that complainants Memorandum
came from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations
credible as they were supported by testimonial and documentary evidence. He also noted that (b)y strict
Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of
immoral conduct, to wit: that which is willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable members of the community (7 C.J.S. 959) (Delos
Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more relevant question is
whether or not to exact from respondent Escritor, a member of Jehovahs Witnesses, the strict moral
standards of the Catholic faith in determining her administrative responsibility in the case at bar. [22] The
investigating judge acknowledged that religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it involves the relationship of man to
his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate opinion in

German vs. Barangan, 135 SCRA 514, 530-531) and thereby recommended the dismissal of the
complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the
Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court
Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from
his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become
capacitated to marry by the time she joined the judiciary as her husband had died a year before, it is due
to her relationship with a married man, voluntarily carried on, that respondent may still be subject to
disciplinary action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et al.[25] that court
personnel have been enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and integrity of the court of justice,
DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be
penalized with suspension of six months and one day without pay with a warning that a repetition of a
similar act will be dealt with more severely in accordance with the Civil Service Rules. [26]

II. Issue
Whether or not respondent should be found guilty of the administrative charge of gross and immoral
conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents
right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit
relations for which government employees are held administratively liable.

III. Applicable Laws


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

xxx

(5) Disgraceful and immoral conduct; xxx.


Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and
practices and moral standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal
arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for
which she should be held administratively liable. While not articulated by respondent, she invokes
religious freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.

IV. Old World Antecedents of the American Religion Clauses


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

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than
anything else, charted not only the future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is acknowledged by many writers, among
whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God that
introduced a religious exclusivism leading to compulsion and persecution in the realm of
religion. Ancient religions were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not arise. It was not until an
exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose.
[37]
(emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not
only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and
his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and
David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the
king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.
[38]
Under Solomon, the subordination of religion to state became complete; he used religion as an engine
to further the states purposes. He reformed the order of priesthood established by Moses because the
high priest under that order endorsed the claim of his rival to the throne. [39]
The subordination of religion to the state was also true in 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 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 17 th century,

endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the
realm of political governments.[53] The English Baptists proclaimed that the magistrate is not to meddle
with religion or matters of conscience, nor compel men to this or that form of religion. [54]
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and theseparatist. 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
grantedfull 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 19 th 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 churchstate relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the
name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religions invaluable service. This was the context in which the unique experiment
of the principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.[63]

V. Factors Contributing to the Adoption


of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England,
established many of the American colonies. British thought pervaded these colonies as the immigrants
brought with them their religious and political ideas from England and English books and pamphlets
largely provided their cultural fare. [64] But although these settlers escaped from Europe to be freed from
bondage of laws which compelled them to support and attend government favored churches, some of
these settlers themselves transplanted into American soil the oppressive practices they escaped
from. The charters granted by the English Crown to the individuals and companies designated to make
the laws which would control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to support or attend. [65] At one time, six
of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware
tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths. [66]
This was the state of the American colonies when the unique American experiment of
separation of church and state came about. The birth of the experiment cannot be attributed to a
single cause or event. Rather, a number of interdependent practical and ideological factors contributed in
bringing it forth. Among these were the English Act of Toleration of 1689, the multiplicity of sects, the
lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies
of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of
Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and
deism.[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the American colonies to
different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English
lords chose to forego protecting what was considered to be the true and eternal church of a particular
time in order to encourage trade and commerce. The colonies were large financial investments which
would be profitable only if people would settle there. It would be difficult to engage in trade with persons
one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the
colonies from their preoccupations over their religion and its exclusiveness, encouraging them to think
less of the Church and more of the State and of commerce. [68] The diversity brought about by the
colonies open gates encouraged religious freedom and non-establishment in several ways. First, as
there were too many dissenting sects to abolish, there was no alternative but to learn to live
together. Secondly, because of the daily exposure to different religions, the passionate conviction in the
exclusive rightness of ones religion, which impels persecution for the sake of ones religion,

waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and
without such uniformity, establishment could not survive. [69]
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of
adherents. Only about four percent of the entire population of the country had a church affiliation at the
time the republic was founded.[70] This might be attributed to the drifting to the American colonies of the
skepticism that characterized European Enlightenment. [71] Economic considerations might have also been
a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of
lack of church affiliation contributed to religious liberty and disestablishment as persons who were not
connected with any church were not likely to persecute others for similar independence nor accede to
compulsory taxation to support a church to which they did not belong. [72]
However, for those who were affiliated to churches, the colonial policy regarding their worship
generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on
Protestant dissenters the right to hold public services subject to registration of their ministers and places
of worship.[73] Although the toleration accorded to Protestant dissenters who qualified under its terms was
only a modest advance in religious freedom, it nevertheless was of some influence to the American
experiment.[74] Even then, for practical considerations, concessions had to be made to other dissenting
churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the
colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical
religious revival originating in New England, caused a break with formal church religion and a resistance
to coercion by established churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties of the individual conscience
and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian
theology as in fact they were fundamentalists, this group became staunch advocates of separation of
church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of
Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but on the concept of mutual
independence of religion and government. In 1663, Rhode Island obtained a charter from the British
crown which declared that settlers have it much on their heart to hold forth a livelie experiment that a
most flourishing civil state may best be maintained . . . with full libertie in religious concernments. [76] In
Williams pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a
Conference between Truth and Peace,[77]he articulated the philosophical basis for his argument of
religious liberty. To him, religious freedom and separation of church and state did not constitute two but
only one principle. Religious persecution is wrong because it confounds the Civil and Religious and
because States . . . are proved essentially Civil. The power of true discerning the true fear of God is
not one of the powers that the people have transferred to Civil Authority. [78] Williams Bloudy Tenet is
considered an epochal milestone in the history of religious freedom and the separation of church and
state.[79]
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of
toleration, having been imprisoned for his religious convictions as a member of the despised
Quakers. He opposed coercion in matters of conscience because imposition, restraint and persecution
for conscience sake, highly invade the Divine prerogative. Aside from his idealism, proprietary interests
made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial
period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for
the Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in
America, a monumental document in the history of civil liberty which provided among others, for liberty of
conscience.[80] The Baptist followers of Williams and the Quakers who came after Penn continued the
tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and freedom. [81] The
Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted

the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples
of Rhode Island and Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also contributed to the American
experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed
self-evident truth in Americas Declaration of Independence. With the doctrine of natural rights and
equality set forth in the Declaration of Independence, there was no room for religious discrimination. It
was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with
the English crown which violated the self-evident truth that all men are created equal. [83]
The social contract theory was applied by many religious groups in arguing against establishment,
putting emphasis on religion as a natural right that is entirely personal and not within the scope of the
powers of a political body. That Locke and the social contract theory were influential in the development
of religious freedom and separation is evident from the memorial presented by the Baptists to the
Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every one the better to
preserve himself, his liberty and property. The power of the society, or Legislature constituted by them,
can never be supposed to extend any further than the common good, but is obliged to secure every ones
property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil
magistrate; and on this ground we affirm that the magistrates power extends not to establishing any
articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care
of souls cannot belong to the civil magistrate, because his power consists only in outward force;
but pure and saving religion consists in the inward persuasion of the mind, without which nothing
can be acceptable to God.[84] (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was acceptable to both the
religionist and rationalist. To the religionist, God or Christ did not desire that government have that
jurisdiction (render unto Caesar that which is Caesars; my kingdom is not of this world) and to the
rationalist, the power to act in the realm of religion was not one of the powers conferred on government as
part of the social contract.[85]
Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and 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 theUnitarians or Deists. Unitarianism and Deism contributed to the
emphasis on secular interests and the relegation of historic theology to the background. [87] For these men
of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be
protected from the clutches of the church whose entanglements has caused intolerance and corruption as
witnessed throughout history.[88] Not only the leaders but also the masses embraced rationalism at the
end of the eighteenth century, accounting for the popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in Virginia contributed significantly to
the American experiment of the First Amendment. Virginia was the first state in the history of the
world to proclaim the decree of absolute divorce between church and state. [90] Many factors
contributed to this, among which were that half to two-thirds of the population were organized dissenting
sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found
themselves on the losing side of the Revolution and had alienated many influential laymen with its
identification with the Crowns tyranny, and above all, present in Virginia was a group of political leaders
who were devoted to liberty generally,[91] who had accepted the social contract as self-evident, and who
had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington,
Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in the
Bill of Rights of the states first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed
only by reason and conviction, not by force or violence; and therefore, all men are equally entitled
to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty
of all to practice Christian forbearance, love, and charity towards each other.[92] (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists,
Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of
establishment. While the majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive
features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It
repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute
to the support of the establishment. [93] But the dissenters were not satisfied; they not only wanted abolition
of support for the establishment, they opposed the compulsory support of their own religion as others. As
members of the established church would not allow that only they would pay taxes while the rest did not,
the legislature enacted in 1779 a bill making permanent the establishments loss of its exclusive status
and its power to tax its members; but those who voted for it did so in the hope that a general assessment
bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced
in 1779 requiring every person to enroll his name with the county clerk and indicate which society for the
purpose of Religious Worship he wished to support. On the basis of this list, collections were to be made
by the sheriff and turned over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any society was to be divided
proportionately among the societies.[94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was
introduced requiring all persons to pay a moderate tax or contribution annually for the support of the
Christian religion, or of some Christian church, denomination or communion of Christians, or for some
form of Christian worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling
blow against the 1784 bill was the monumental Memorial and Remonstrance against Religious
Assessments written by Madison and widely distributed before the reconvening of legislature in the fall of
1785.[96] It stressed natural rights, the governments lack of jurisdiction over the domain of religion,
and the social contract as the ideological basis of separation while also citing practical
considerations such as loss of population through migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we
owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not
by force or violence. The religion, then, of every man, must be left to the conviction and conscience
of every man; and it is the right of every man to exercise it as these may dictate. This right is, in
its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the
evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also,
because what is here a right towards men, is a duty towards the creator. It is the duty of every man to
render the creator such homage, and such only as he believes to be acceptable to him; this duty
is precedent, both in order of time and degree of obligation, to the claims of civil society. Before
any man can be considered as a member of civil society, he must be considered as a subject of
the governor of the universe; and if a member of civil society, who enters into any subordinate
association, must always do it with a reservation of his duty to the general authority, much more must
every man who becomes a member of any particular civil society do it with the saving his allegiance to the
universal sovereign.[97] (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of
signatures appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had
not been voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January
1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal
punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of
body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;
xxx
xxx

xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support
any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or
burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs,
but that all men shall be free to profess, and by argument to maintain, their opinions in matters of
religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. [98] (emphases
supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a
general or particular establishment in Virginia. [99] But the passage of this law was obtained not only
because of the influence of the great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The
former were never established in Virginia and an underprivileged minority of the population. This made
them anxious to pull down the existing state church as they realized that it was impossible for them to be
elevated to that privileged position. Apart from these expediential considerations, however, many of the
Presbyterians were sincere advocates of separation [100] grounded on rational, secular arguments and to
the language of natural religion.[101] Influenced by Roger Williams, the Baptists, on the other hand,
assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation with the social order. [102] To them, the Holy Ghost was
sufficient to maintain and direct the Church without governmental assistance and state-supported religion
was contrary ti the spirit of the Gospel. [103] Thus, separation was necessary.[104] Jeffersons religious
freedom statute was a milestone in the history of religious freedom. The United States Supreme Court
has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution
had the same objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate
in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of
1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the
Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in
the Constitution.[105] However, omission of an express guaranty of religious freedom and other natural
rights nearly prevented the ratification of the Constitution. [106] In the ratifying conventions of almost every
state, some objection was expressed to the absence of a restriction on the Federal Government as
regards legislation on religion.[107] Thus, in 1791, this restriction was made explicit with the adoption of the
religion clauses in the First Amendment as they are worded to this day, with the first part usually referred
to as the Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof.

VI.

Religion Clauses in the United States:


Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes
an equally broad disagreement as to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion clauses as regards its exact

meaning and the paucity of records in Congress renders it difficult to ascertain its meaning.
[108]
Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies
whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted
and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other aspects of social life with significant moral
dimension - while government played a supportive and indirect role by maintaining conditions in which
these activities may be carried out by religious or religiously-motivated associations. Today, government
plays this primary role and religion plays the supportive role. [109] Government runs even family planning,
sex education, adoption and foster care programs. [110] Stated otherwise and with some exaggeration,
(w)hereas two centuries ago, in matters of social life which have a significant moral dimension,
government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of government. [111] With government regulation of
individual conduct having become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent
collisions between purely secular government actions and religion clause values. [112]
Parallel to this expansion of government has been the expansion of religious organizations in
population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects
and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research
centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing
houses and mass media programs. In these activities, religious organizations complement and compete
with commercial enterprises, thus blurring the line between many types of activities undertaken by
religious groups and secular activities. Churches have also concerned themselves with social and political
issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace,
economic justice, and human life, or in ringing affirmations for racial equality on religious
foundations. Inevitably, these developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity has significantly changed
the environment in which religious organizations and activities exist and the laws affecting them are
made. It is no longer easy for individuals to live solely among their own kind or to shelter their children
from exposure to competing values. The result is disagreement over what laws should require, permit or
prohibit;[113] and agreement that if the rights of believers as well as non-believers are all to be respected
and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and
political realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones arise from a government
action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these
actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent
to aid or inhibit religion. [115] The more difficult religion clause cases involve government action with a
secular purpose and general applicability which incidentally or inadvertently aids or burdens religious
exercise. In Free Exercise Clause cases, these government actions are referred to as those with
burdensome effect on religious exercise even if the government action is not religiously motivated.
[116]
Ideally, the legislature would recognize the religions and their practices and would consider them,
when practical, in enacting laws of general application. But when the legislature fails to do so, religions
that are threatened and burdened turn to the courts for protection. [117] Most of these free exercise claims
brought to the Court are for exemption, not invalidation of the facially neutral law that has a burdensome
effect.[118]
With the change in political and social context and the increasing inadvertent collisions between law
and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must
define religion for constitutional and other legal purposes. [119] It was in the 1890 case of Davis v.
Beason[120] that the United States Supreme Court first had occasion to define religion, viz:

The term religion has reference to ones views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of obedience to his will. It is
often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the
latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting
the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone
under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker
and the duties they impose as may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and
to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. [121]
The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces
the right to maintain theories of life and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths. [123] By the 1960s, American pluralism in religion had flourished to
include non-theistic creeds from Asia such as Buddhism and Taoism. [124] In 1961, the Court, in Torcaso
v. Watkins,[125] expanded the term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United
States v. Seeger[126] which involved four men who claimed conscientious objector status in refusing to
serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed
to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that you could call
(it) a belief in a Supreme Being or God. These just do not happen to be the words that I use. Forest
Peter, another one of the four claimed that after considerable meditation and reflection on values derived
from the Western religious and philosophical tradition, he determined that it would be a violation of his
moral code to take human life and that he considered this belief superior to any obligation to the
state. The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause,
but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which
exempt from combat anyone who, by reason of religious training and belief, is conscientiously opposed
to participation in war in any form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the designation God, was merely
clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the test of belief in relation to a Supreme
Being is whether a given belief that is sincere and meaningful occupies a place in the life of its
possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of
such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to include even nontheistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet
four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some
parallel belief that occupies a central place in the believers life. Second, the religion must involve a moral
code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in
belief is necessary, but the court must not inquire into the truth or reasonableness of the belief. [127] Fourth,
there must be some associational ties,[128] although there is also a view that religious beliefs held by a
single person rather than being part of the teachings of any kind of group or sect are entitled to the
protection of the Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having
hurdled the issue of definition, the court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their
purpose is singular; they are two sides of the same coin. [130] In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different circumstances. [131] The purpose of the
religion clauses - both in the restriction it imposes on the power of the government to interfere with the

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

A. Free Exercise Clause


The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.
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:
[143]

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the
profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which
at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended that the civil government under which
he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn
herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is
provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become a law unto
himself. Government could exist only in name under such circumstances. [146]
The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from
regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate
religiously motivated conduct. It was logical for belief to be accorded absolute protection because any
statute designed to prohibit a particular religious belief unaccompanied by any conduct would most
certainly be motivated only by the legislatures preference of a competing religious belief. Thus, all cases
of regulation of belief would amount to regulation of religion for religious reasons violative of the Free
Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes
and have nothing to do with the legislatures religious preferences. Any burden on religion that results
from state regulation of conduct arises only when particular individuals are engaging in the generally
regulated conduct because of their particular religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any problem. [147] The Free
Exercise Clause thus gave no protection against the proscription of actions even if considered central to a
religion unless the legislature formally outlawed the belief itself. [148]
This belief-action distinction was held by the Court for some years as shown by cases where the
Court upheld other laws which burdened the practice of the Mormon religion by imposing various
penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.
[149]
However, more than a century since Reynolds was decided, the Court has expanded the scope of
protection from belief to speech and conduct. But while thebelief-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.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police could not
prohibit members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays
merely because other citizens complained. In another case likewise involving the Jehovahs
Witnesses, Niemotko v. Maryland,[158] the Court unanimously held unconstitutional a city councils denial
of a permit to the Jehovahs Witnesses to use the city park for a public meeting. The city councils refusal
was because of the unsatisfactory answers of the Jehovahs Witnesses to questions about Catholicism,
military service, and other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to 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]
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 beliefaction distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction
between deliberate state interference of religious exercise for religious reasons which was plainly
unconstitutional and governments inadvertent interference with religion in pursuing some secular
objective.[162] In the 1940 case 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 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 ofSherbert 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 ofSherbert 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 thebelief-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]
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
in Reynolds. The relevant portion of the majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of
unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field,
we would not apply it to require exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority
of our precedents, is to hold the test inapplicable to such challenges. The governments ability to
enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious
objectors spiritual development. . . .To make an individuals obligation to obey such a law
contingent upon the laws coincidence with his religious beliefs except where the States interest
is compelling - permitting him, by virtue of his beliefs, to become a law unto himself, . . . contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the
compelling governmental interest test was the most controversial part of the decision. Although she
concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the
majority opinion as a dramatic departure from well-settled First Amendment jurisprudence. . . and . . .
(as) incompatible with our Nations fundamental commitment to religious liberty. This portion of her
concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the
Courts decision. Justice OConnor asserted that (t)he compelling state interest test effectuates the
First Amendments command that religious liberty is an independent liberty, that it occupies a
preferred position, and that the Court will not permit encroachments upon this liberty, whether
direct or indirect, unless required by clear and compelling government interest of the highest
order. Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and
Marshall. He charged the majority with mischaracterizing precedents and overturning. . . settled law
concerning the Religion Clauses of our Constitution. He pointed out that the Native American Church
restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or
safety justification for regulating the sacramental drug use. He also observed that Oregon had not
attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use
of peyote. In conclusion, he said that Oregons interest in enforcing its drug laws against religious use of
peyote (was) not sufficiently compelling to outweigh respondents right to the free exercise of their
religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard
in Smith virtually eliminated the requirement that the government justify with a compelling state interest
the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.[185] First, the First amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate regulatory interference with minority religious
freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an interference with the minoritys
religious freedom. If the regulation had instead restricted the majoritys religious practice, the majoritarian
legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of
the political majoritys non-religious objectives at the expense of the minoritys religious interests
implements the majoritys religious viewpoint at the expense of the minoritys. Second, government
impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the
political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would
be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common
sense. The state should not be allowed to interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This
is especially true when there are alternative approaches for the state to effectively pursue its objective
without serious inadvertent impact on religion.[186]

Thus, the Smith decision has been criticized not only for increasing the power of the state over
religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral
groups who lack legislative clout, [187] contrary to the original theory of the First Amendment.
[188]
Undeniably, claims for judicial exemption emanate almost invariably from relatively politically
powerless minority religions 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 theSmith
ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the
Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled
that RFRA contradicts vital principles necessary to maintain separation of powers and the federal
balance. It emphasized the primacy of its role as interpreter of the Constitution and unequivocally
rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a
question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah [193] which was ruled
consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman
Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance
made it a crime to unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food consumption. The ordinance came as a response to the
local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority,
carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but
instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took
place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is
absolutely protected, religious speech and proselytizing are highly protected but subject to restraints
applicable to non-religious speech, and unconventional religious practice receives less protection;
nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the 1947 case ofEverson 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 in Lemon v.
Kurtzman[204] in determining the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement
for the cost of teachers salaries, textbooks, and instructional materials in secular subjects and a Rhode
Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. First,
the statute must have a secular legislative purpose; second, its primary or principal effect must be
one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L
Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an excessive
entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct
1409 [1970]) (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania statutory
program and Rhode Island statute were unconstitutional as fostering excessive entanglement between
government and religion.
The most controversial of the education cases involving the Establishment Clause are the school
prayer decisions. Few decisions of the modern Supreme Court have been criticized more intensely than
the school prayer decisions of the early 1960s. [206] In the 1962 case ofEngel v. Vitale,[207] the Court
invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic
prayer by children in the public schools at the start of each school day. The majority opinion written by
Justice Black stated that in this country it is no part of the business of government to compose official
prayers for any group of the American people to recite as part of a religious program carried on by
government. In fact, history shows that this very practice of establishing governmentally composed
prayers for religious services was one of the reasons that caused many of the early colonists to leave

England and seek religious freedom in America. The Court called to mind that the first and most
immediate purpose of the Establishment Clause rested on the belief that a union of government and
religion tends to destroy government and to degrade religion. The following year, the Engel
decision was reinforced in Abington School District v. Schempp [208] and Murray v. Curlett[209] where
the Court struck down the practice of Bible reading and the recitation of the Lords prayer in the
Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment
Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor
inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the
teachings of history that powerful sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the other to the end that official support of the
State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the
Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause,
which recognizes the value of religious training, teaching and observance and, more particularly, the right
of every person to freely choose his own course with reference thereto, free of any compulsion from the
state.[210]
The school prayer decisions drew furious reactions. Religious leaders and conservative members of
Congress and resolutions passed by several state legislatures condemned these decisions. [211] On
several occasions, constitutional amendments have been introduced in Congress to overturn the school
prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case
of Wallace v. Jaffree[212] where the Court struck down an Alabama law that required public school
students to observe a moment of silence for the purpose of meditation or voluntary prayer at the start of
each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were declared
offensive of the Establishment Clause in the 1948 case ofMcCollum 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 taxsupported property for religious instruction and the close cooperation between the school authorities and
the religious council in promoting religious education amounted to a prohibited use of tax-established and
tax-supported public school system to aid religious groups spread their faith. The Court rejected the
claim that the Establishment Clause only prohibited government preference of one religion over another
and not an impartial governmental assistance of all religions. In Zorach v. Clauson,[214] however, the
Court upheld released time programs allowing students in public schools to leave campus upon parental
permission to attend religious services while other students attended study hall. Justice Douglas, the
writer of the opinion, stressed that (t)he First Amendment does not require that in every and all respects
there shall be a separation of Church and State. The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the force of the public school
was used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover
the present released time program unless separation of Church and State means that public institutions
can make no adjustments of their schedules to accommodate the religious needs of the people. We
cannot read into the Bill of Rights such a philosophy of hostility to religion. [215]

In the area of government displays or affirmations of belief, the Court has given leeway to religious
beliefs and practices which have acquired a secular meaning and have become deeply entrenched in
history. For instance, in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious underpinnings of the
restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that
this day of rest happened to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have special significance as a rest day
in this country. People of all religions and people with no religion regard Sunday as a time for family
activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for
dining out, and the like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of
beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers
expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history
and the need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the
practice of opening legislative sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an
establishment of religion or a step toward establishment; it is simply a tolerable acknowledgement of
beliefs widely held among the people of this country. As Justice Douglas observed, (w)e are a
religious people whose institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306,
313 [1952])[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if
it were to attempt to strike down a practice that occurs in nearly every legislature in the United States,
including the U.S. Congress.[220] That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a city-sponsored nativity scene in
Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a neutral harbinger of the holiday
season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By tradition,
church and charitable institutions have been exempt from local property taxes and their income exempt
from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City
Tax Commissions grant of property tax exemptions to churches as allowed by state law was challenged
by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the
law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as such; rather, it has
granted exemptions to all houses of religious worship within a broad class of property owned by nonprofit, 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 preRevolutionary colonial times, than for the government to exercise . . . this kind of benevolent

neutrality toward churches and religious exercise generally so long as none was favored over
others and none suffered interference.[225] (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality


To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses
area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has
passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor
McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in
daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside
a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56
[1985]). It is unconstitutional for a state to require employers to accommodate their employees work
schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985])
but constitutionally mandatory for a state to require employers to pay workers compensation when the
resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398,
403-4 [1963]). It is constitutional for the government to give money to 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 state-mandated 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 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 19 th century and that America
was less specifically Christian during those years than at any other time before or since,
[232]
accommodationaists claim that American citizens at the time of the Constitutions origins were a
remarkably religious people in particularly Christian terms. [233]
The two streams of jurisprudence - separationist or accommodationist - are anchored on a
different reading of the wall of separation. The strict separtionist view holds that Jefferson meant
the wall of separation to protect the state from the church. Jefferson was a man of the Enlightenment
Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.
[234]
He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and
natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief
in a universal harmony.[235] Thus, according to this Jeffersonian view, the Establishment Clause being
meant to protect the state from the church, the states hostility towards religion allows no interaction
between the two.[236]In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving
days on the ground that these are religious exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute barrier to formal interdependence of
religion and state. Religious institutions could not receive aid, whether direct or indirect, from the
state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on
believers.[238] Only the complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views thus a strict wall of separation is
necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are
caught in an awkward position of claiming a constitutional principle that has never existed and is never
likely to.[240]
A tamer version of the strict separationist view, the strict neutrality or separationist viewis largely
used by the Court, showing the Courts tendency to press relentlessly towards a more secular society.
[241]
It finds basis in the Everson case where the Court declared that Jeffersons wall of separation
encapsulated the meaning of the First Amendment but at the same time held that the First Amendment
requires the state to be neutral in its relations with groups of religious believers and non-believers; it
does not require the state to be their adversary. State power is no more to be used so as to
handicap religions than it is to favor them. (emphasis supplied)[242] While the strict neutrality approach
is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for
purposes of governmental action, whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government action. It does not permit, much less
require, accommodation of secular programs to religious belief. [243] Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of the first amendment is that
the freedom and separation clauses should be read as a single precept that government cannot utilize
religion as a standard for action or inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden. [244]

The Court has repeatedly declared that religious freedom means government neutrality in religious
matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from
acting except for secular purposes and in ways that have primarily secular effects. [245]
Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow
any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.[246] The McCollum
case prohibiting optional religious instruction within public school premises during regular class hours
also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government
action as they were based not on a secular but on a religious purpose. Strict neutrality was also used
in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law
with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not
been offended. However, if the strict neutrality standard is applied in interpreting the Establishment
Clause, it could de 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:
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 religionas something special; they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this
distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications.[248]
The separationist approach, whether strict or tame, is caught in a dilemma because while the
Jeffersonian wall of separation captures the spirit of the American ideal of church-state separation, in
real life church and state are not and cannot be totally separate. [249] This is all the more true in
contemporary times when both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at many points. [250]
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room 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:
. . . when they have opened a gap in the hedge or wall of separation between the garden of the church
and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and

made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden
and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . . [258]
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by the Court is this:
that we will not tolerate either governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise to exist without
sponsorship and without interference.[259] (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection to religious
groups. Policemen who helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom
oaths- these and all other references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to
the supplication with which the Court opens each session: God save the United States and this
Honorable Court.
xxx
xxx

xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the
best of our traditions. For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it necessary for government to be hostile
to religion and to throw its weight against efforts to widen their effective scope of religious influence.
[261]
(emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves a function
essential to the survival of society itself, thus there is no human society without one or more ways of
performing the essential function of religion. Although for some individuals there may be no felt need for
religion and thus it is optional or even dispensable, for society it is not, which is why there is no human
society without one or more ways of performing the essential function of religion. Even in ostensibly
atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.
[262]
As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites without which society
would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the
functional prerequisites.[263]

Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something
which modern social scientists would classify as a religionReligion is as much a human universal as
language.[264]
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of In God We Trust on American
currency, the recognition of America as one nation under God in the official pledge of allegiance to the
flag, the Supreme Courts time-honored practice of opening oral argument with the invocation God save
the United States and this honorable Court, and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination to lead representatives in prayer.
[265]
These practices clearly show the preference for one theological viewpoint -the existence of and
potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and in other forms of poor relief,
in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with
strong moral dimension.[266] The persistence of these de facto establishments are in large part explained
by the fact that throughout history, the evangelical theory of separation, i.e., Williams wall, has demanded
respect for these de facto establishments.[267] But the separationists have a different explanation. To
characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S.
Supreme Court, the many dissenting and concurring opinions explain some of these practices as de
minimis instances of government endorsement or as historic governmental practices that have largely
lost their religious significance or at least have proven not to lead the government into further involvement
with religion.[268]
With
religion
looked
upon
with
benevolence
and
not
hostility, benevolent
neutrality allowsaccommodation of religion under certain circumstances. Accommodations are
government policies that take religion specifically into account not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a
persons or institutions religion. As Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish. [269] (emphasis
supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the
minority, 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

theformal 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 thatfreedom 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 express prevailing religious
sentiments of the community such as display of a religious symbol on public property or the delivery of a
prayer at public ceremonial events. [274] Stated otherwise, using benevolent neutrality as a standard
could result to three situations of accommodation:those where accommodation is required, those
where it is permissible, and those where it isprohibited. In the first situation, accommodation
is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or
create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions

are intentional government advancement, these exemptions merely relieve the prohibition on the free
exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions
to laws of general applicability when these laws threaten religious convictions or practices in the absence
of a compelling state interest.[275] By allowing such exemptions, the Free Exercise Clause does not give
believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows
them to obey spiritual rather than temporal authority [276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more
precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act
upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied
will usually not find the reason for the denial compelling. Because they may turn out to be right about the
duty in question, and because, even if they are wrong, religion bears witness to that which transcends the
political order, such denials should be rare and painfully reluctant. [277]
The Yoder case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of Sherbert. [278]In these cases of
burdensome effect, the modern approach of the Court has been to apply strict scrutiny, i.e., to declare
the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens
the religious exercise pursues a particularly important or compelling government goal through the least
restrictive means. If the states objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be
given.[279] This approach of the Court on burdensome effect was only applied since the 1960s. Prior to
this time, the Court took the separationist view that as long as the state was acting in pursuit of 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
and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims
for free exercise exemptions are valid. [282] An example where accommodation was prohibited
is McCollum where the Court ruled against optional religious instruction in the public school premises.
[283]
In effect, the last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs,
the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or compelling) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimants
beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimants religious denomination. Only beliefs rooted in religion are
protected by the Free Exercise Clause; secular beliefs, however sincere and conscientious, do not
suffice.[284]
In other words, a three-step process (also referred to as the two-step balancing
processsupra 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 inWisconsin where the Amish people had held a long-standing
objection to enrolling their children in ninth and tenth grades in public high schools. In another case,
Dobkin v. District of Columbia,[285] the Court denied the claim of a party who refused to appear in court
on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on
Saturday. Although it is true that the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his religious community, but for the most part,
the injustice is done only in the particular case. [286] Aside from the sincerity, the court may look into the
centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief
of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish peoples
convictions against becoming involved in public high schools were central to their way of life and
faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a
cardinal principle.[287] Professor Lupu puts to task the person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant religious practice must be
demonstrated. Religious command should outweigh custom, individual conscience should count for more
than personal convenience, and theological principle should be of greater significance than institutional
ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the
individuals religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be
inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise
- as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of
fundamentalist creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement
of religious liberty? In this step, the government has to establish that its purposes are legitimate for
the state and that they are compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be undermined if
exemptions are granted.[289] The person claiming religious freedom, on the other hand, will endeavor to
show that the interest is not legitimate or that the purpose, although legitimate, is not compelling
compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of
the state against religious liberty to determine which is more compelling under the particular set of
facts. The greater the states interests, the more central the religious belief would have to be to overcome
it. In assessing the state interest, the court will have to determine the importance of the secular interest
and the extent to which that interest will be impaired by an exemption for the religious practice. Should
the court find the interest truly compelling, there will be no requirement that the state diminish the
effectiveness of its regulation by granting the exemption. [290]
Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?[291] The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve
its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example,
the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden
on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in
carrying out thecompelling 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
the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised
civil powers.[294] Catholics alone enjoyed the right of engaging in public ceremonies of worship.
[295]
Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the
established church in our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of
the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state
religion.[296] The coming of the Americans to our country, however, changed this state-church scheme for
with the advent of this regime, the unique American experiment of separation of church and state was
transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on
December 10, 1898, the American guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that the inhabitants of the territories over which Spain relinquishes or
cedes her sovereignty shall be secured in the free exercise of religion. [297] Even the Filipinos themselves
guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos
Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that the State
recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as the
separation of the Church and State. But the Malolos Constitution and government was short-lived as the
Americans took over the reigns of government.[298]
With the Philippines under the American regime, President McKinley issued Instructions to the
Second Philippine Commission, the body created to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof,
and that the free exercise and enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced
upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion
shall be interfered with or molested in following his calling. [299]
This provision was based on the First Amendment of the United States Constitution. Likewise,
the Instructions declared that (t)he separation between State and Church shall be real, entire and
absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar
to the religious freedom clause in 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 1934which
guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It
enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of
independence. The law prescribed that (a)bsolute toleration of religious sentiment shall be secured and
no inhabitant or religious organization shall be molested in person or property on account of religious
belief or mode of worship.[303]
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings,
Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the
Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President
McKinleys Instructions to the Second Philippine Commission reasserted this right which later was
incorporated into the Philippine Bill of 1902 and in the Jones Law. [304] In accordance with the TydingsMcDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
This provision, borrowed from the Jones Law, was readily approved by the Convention. [305] In his speech
as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of
the Bill of Rights in the Jones Law were avoided whenever possible because the principles must remain
couched in a language expressive of their historical background, nature, extent and limitations as
construed and interpreted by the great statesmen and jurists that vitalized them. [306]
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical
provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of
church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were
reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5. [307]Likewise, the
provision on separation of church and state was included verbatim in the 1987 Constitution, but this time
as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the
historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when
it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases
involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of
these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence
on religion clauses flows into two main streams of interpretation - separation and benevolent neutrality

- the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent
neutrality which gives room for accommodation.

B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the
definition of religion. Religion is derived from the Middle English religioun, from Old French religion,
from Latin religio, vaguely referring to a bond between man and the gods. [308] This pre-Christian term for
the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible. [309] While the
U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of
religion to determine whether a non-theistic belief or act is covered by the religion clauses, this Court
has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the
religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v.
Ruiz[310]involving the Establishment Clause, defined religion as a profession of faith to an active power
that binds and elevates man to his Creator. Twenty years later, the Court cited theAglipay definition
in American Bible Society v. City of Manila, [311] a case involving the Free Exercise clause. The latter
also cited the American case of Davis in defining religion, viz: (i)t has reference to ones views of his
relations to His Creator and to the obligations they impose of reverence to His being and character and
obedience to His Will. The Beason definition, however, has been expanded in U.S. jurisprudence to
include non-theistic beliefs.

1. Free Exercise Clause


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

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a clear and present danger of
any substantive evil which the State has the right to prevent. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the
religious freedom area, and in Philippine jurisprudence, for that matter. [315] The case did not clearly
show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it
did not identify the secular value the government regulation sought to protect, whether the religious
speech posed a clear and present danger to this or other secular value protected by government, or
whether there was danger but it could not be characterized as clear and present. It is one thing to apply
the test and find that there is no clear and present danger, and quite another not to apply the test
altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff
as it was not engaged in the business or occupation of selling said merchandise for profit. To add, the
Court, citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a
license and pay a license fee or tax would impair its free exercise of religious profession and worship and
its right of dissemination of religious beliefs as the power to tax the exercise of a privilege is the power to
control or suppress its enjoyment. Thus, in American 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:
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption
from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated
by competent authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the
Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if
it clashes with the established institutions of society and with the law such that when a law of
general applicability (in this case the Department Order) incidentally burdens the exercise of ones
religion, ones right to religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.
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:
[326]

Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v.
Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where

unavoidably necessary to prevent an immediate and grave danger to the security and welfare of
the community that infringement of religious freedom may be justified, and only to the smallest
extent necessary.[327] (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional provision on
establishment and free exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free
exercise of ones chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of others and with the common
good.(footnote omitted). Any legislation whose effect or purpose is to impede the observance of
one or all religions, or to discriminate invidiously between the religions, is invalid, even though
the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the states secular goals, the statute
is valid despite its indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S.
Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or sect. It also
cited Board of Education v. Allen,[330] which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances
nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to
the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work,
or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood,
by reason of union security agreements. . . . The primary effects of the exemption from closed shop
agreements in favor of members of religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a
certain extent economic insecurity due to unemployment. [331]
The Court stressed that (a)lthough the exemption may benefit those who are members of religious
sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the exercise
of religion by certain persons of a burden imposed by union security agreements which Congress
itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest intervenes. The Court then
abruptly added that (i)n the instant case, We see no compelling state interest to withhold exemption. [333]
A close look at Victoriano would show that the Court mentioned several tests in determining when
religious freedom may be validly limited. First, the Court mentioned the test of immediate and grave
danger to the security and welfare of the community and infringement of religious freedom only to the
smallest extent necessary to justify limitation of religious freedom. Second, religious exercise may be
indirectly burdened by a general law which has for its purpose and effect the advancement of the states
secular goals, provided that there is no other means by which the state can accomplish this purpose
without imposing such burden. Third, the Court referred to the compelling state interest test which

grants exemptions when general laws conflict with religious exercise, unless a compelling state interest
intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting
the importance of the protection of religious freedom as the secular purpose of Republic Act No.
3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious
freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The
first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues
of the case. The third, the compelling state interest test was employed by the Court to determine
whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the
exemption, stating that there was no compelling state interest to strike it down. However, after careful
consideration of theSherbert 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
theVictoriano 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 anti-administration 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.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be
cited as a test in religious freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L.
Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote
omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable
assembly along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the
other departments - rests the grave and delicate responsibility of assuring respect for and deference to
such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has
been so felicitously termed by Justice Holmes as the sovereign prerogative of judgment. Nonetheless,
the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be
subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole
justification for a prior restraint or limitation on the exercise of these basic rights is the existence
of a grave and present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the State has a
right (and duty) to prevent (Idem, at pp. 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 Code of 1987. In resolving the same religious
freedom issue as in Gerona, the Court this time transported the grave and imminent danger test laid
down in Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to
the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA
514, 517) is the existence of a grave and present danger of a character both grave and imminent, of
a serious evil to public safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.[342] (emphasis supplied)
The Court added, viz:

We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the
national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small
portion of the school population will shake up our part of the globe and suddenly produce a nation
untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and
admiration for national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the
petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where
they may study the Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and
be taught the virtues of patriotism, respect for human rights, appreciation of national heroes, the rights
and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of
the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very
situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of
the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities. [343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such
unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046). [344]
Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling
state interest test in according exemption to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of
members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer
and a union because it would violate the teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless some
compelling state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct.
1790)
We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the
observance of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs
may seem to others.[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting opinion in Germanwhich
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 x-rating was a suppression of petitioners
freedom of speech as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and
their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from
this kind of attack.
The Court then called to mind the clear and present danger test first laid down in theAmerican
Bible Society case and the test of immediate and grave danger with infringement only to the smallest
extent necessary to avoid danger in Victoriano and pointed out that the reviewing board failed to apply
the clear and present danger test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the respondent appellate court,
is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing whatsoever of the type of harm the
tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on
speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the clear and present danger test to the case, the Court
acknowledged the permutations that the test has undergone, but stressed that the test is still applied to
four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience
reaction, out of court contempt and release of information that endangers a fair trial [351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present
danger test to the case at bar which concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.
[352]

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot
be invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also

reiterated the clear and present danger test in American Bible 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 politics.[355] Non-establishment thus calls for government neutrality in religious
matters to uphold voluntarism and avoid breeding interfaith dissension. [356]
The neutrality principle was applied in the first significant 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:
The prohibition herein expressed is a direct corollary of the principle of separation of church and
state. Without the necessity of adverting to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for occasions might arise when the state will use
the church, and the church the state, as a weapon in the furtherance of their respective ends and
aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their oath to support and defend the
Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom,
with its inherent limitations and recognized implications. It should be stated that what is guaranteed by
our Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition of profound
reverence for religion and is not a denial of its influence in human affairs. Religion as a
profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their
Constitution, implored the aid of Divine Providence, in order to establish a government that shall
embody their ideals, conserve and develop the patrimony of the nation, promote the general
welfare, and secure to themselves and their posterity the blessings of independence under a

regime of justice, liberty and democracy, they thereby manifested their intense religious nature
and placed unfaltering reliance upon Him who guides the destinies of men and nations. The
elevating influence of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and denominations. . . [359]
xxx
xxx

xxx

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 thebarrio. 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]
theponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there
involved was the validity of a provision in the Maryland Constitution prescribing that no religious test
ought ever to be required as a disqualification for any office or profit or trust in this State, other than a
declaration of belief in the existence of God ***. Such a constitutional requirement was assailed as

contrary to the First Amendment of the United States Constitution by an appointee to the office of notary
public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in
the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the
state court decision. It could not have been otherwise. As emphatically declared by Justice Black: this
Maryland religious test for public office unconstitutionally invades the appellants freedom of belief and
religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify
for a public office. There is thus an incompatibility between the Administrative Code provision relied upon
by petitioner and an express constitutional mandate. [364]
On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices
Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and
upheld the law as a safeguard against the constant threat of union of church and state that has marked
Philippine history. Justice Makasiar stated: To allow an ecclesiastic to head the executive department of
a municipality is to permit the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to
enforce and protect. Consequently, the Court upheld the validity of Section 2175 of the Revised
Administrative Code and declared respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural religious
disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein was the right of
control over certain properties of the Philippine Independent Church, the resolution of which necessitated
the determination of who was the legitimate bishop of the church. The Court cited American
Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or
is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not
only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity
of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by
the constitution and the law of the church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was
the duly elected head of the Church, based on their internal laws. To finally dispose of the property issue,
the Court, citing Watson v. Jones,[368] declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical association (such as the Philippine
Independent Church) is that the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority should prevail; if it adopts
adherence to duly constituted authorities within the congregation, then that should be followed. Applying
these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless
refused to touch doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of faith or
abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical
law, custom and rule of a church and having reference to the power of excluding from the church those
allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the
province of the civil courts.[369]

VIII. Free Exercise Clause vis--vis Establishment Clause


In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application. There is a natural antagonism

between a command not to establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice between competing values in religion
cases.[370]
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective
and the Free Exercise Clause point of view, and decided in opposite directions. 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.
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]
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 employsbenevolent 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 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
non-profit, quasi-public corporations because the state upheld the secular policy that considers these
groups as beneficial and stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest. The Court also stated that the exemption was meant to relieve the
burden on free exercise imposed by property taxation. At the same time, however, the Court
acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a longstanding 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, thebenevolent
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 inCruz v. Beto, apparently taking a benevolent neutrality
approach, implicitly approved the state of Texas payment of prison chaplains salaries as reasonably
necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court
upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative
chaplains retained at taxpayers expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its
adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion
protects the wall of separation between church and state, the provision at the same time gives
constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine
Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in
Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established in the town where a public
school is situated, either in person or by a designated teacher of religion, to teach religion for one-half
hour three times a week, in the school building, to those public-school pupils whose parents or guardians
desire it and express their desire therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three positions on the issue of religious
instruction in public schools. The first held that the teaching of religion in public schools should be
prohibited as this was a violation of the principle of separation of church and state and the prohibition
against the use of public funds for religious purposes. The second favored the proposed optional
religious instruction as authorized by the Administrative Code and recognized that the actual practice of
allowing religious instruction in the public schools was sufficient proof that religious instruction was not
and would not be a source of religious discord in the schools. [386] The third wanted religion to be included
as a course in the curriculum of the public schools but would only be taken by pupils at the option of their
parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to
constitutional stature the optional teaching of religion in public schools, despite the opposition to the
provision on the ground of separation of church and state. [387] As in the provisions on church property tax
exemption and compensation of religious officers in government institutions, the U.S. Constitution does
not provide for optional religious instruction in public schools. In fact, in 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 sub-committees answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the elevating influence of religion in human society
and the Filipinos imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted
that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause
of religion in general.[391] Among the position papers submitted to the Committee on Church on State was
a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas,
S.J. He stated therein that the Philippine Constitution is not hostile to religion and in fact recognizes the
value of religion and accommodates religious values. [392] Stated otherwise, the Establishment Clause
contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the
provision on separation of church and state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a
similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church
property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The
same is true with respect to the prohibition on the use of public money and property for religious purposes
and the salaries of religious officers serving in the enumerated government institutions, now contained in
Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the
government to spend public money for purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be constitutional even if it results
to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his
proposal.[394]
The provision on optional religious instruction was also adopted in the 1987 Constitution in Article
XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be
conducted within the regular class hours and without additional cost to the government. There were
protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal
operations such as wear and tear, electricity, janitorial services, [395] and when during the day instruction
would be conducted.[396] In deliberating on the phrase within the regular class hours, Commissioner
Aquino expressed her reservations to this proposal as this would violate the time-honored principle of
separation of church and state. She cited the McCullom case where religious instruction during regular

school hours was stricken down as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court
allowed only release time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the rule on nonestablishment 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 nonestablishment 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 foraccommodation of these religious exercises
as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold
religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves
this first type ofaccommodation where an exemption is sought from a law of general applicability that
inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the Court will not look with hostility or act
indifferently towards religious beliefs and practices and that it will strive to accommodate them
when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss
a claim under the Free Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion clauses of the
Constitution, i.e., that in the absence of legislation granting exemption from a law of general

applicability, the Court can carve out an exception when the religion clauses justify it. While the
Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the state interest or the
sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed. [403] We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our constitutional
history and interpretation indubitably show that benevolent neutrality is the launching pad from
which the Court should take off in interpreting religion clause cases. The ideal towards which this
approach is directed is the protection of religious liberty not only for a minority, however smallnot 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. TheGerona 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. AfterVictoriano, 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, theGerona and German cases set the
rule that religious freedom will not prevail over established institutions of society and law. Gerona,
however, which was the authority cited by German has been overruled by Ebralinag which employed the
grave and immediate danger test. Victoriano was the only case that employed the compelling state
interest test, but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag andIglesia ni
Cristo where the clear and present danger and grave and immediate danger tests were appropriate as
speech has easily discernible or immediate effects. The Gerona andGerman doctrine, aside from
having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in
this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious
belief. The compelling state interest test is proper where conduct is involved for the whole
gamut of human conduct has different effects on the states interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - the most
inalienable and sacred of all human rights, in the words of Jefferson. [406] This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such higher sovereignty, [407] thus the
Filipinos implore the aid of Almighty God in order to build a just and humane society and establish a
government. As held in Sherbert, only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling
one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until
they are destroyed.[408] In determining which shall prevail between the states interest and religious liberty,
reasonableness shall be the guide. [409] The compelling state interest serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
compelling state interest test, by upholding the paramount interests of the state, seeks to protect the
very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality


In a catena of cases, the Court has ruled that government employees engaged in illicit relations are
guilty of disgraceful and immoral conduct for which he/she may be held administratively liable. [410] In
these cases, there was not one dissent to the majoritys ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not immoral, but instead sought
to prove that they did not commit the alleged act or have abated from committing the act. The facts of the
1975 case of De Dios v. Alejo[411] and the 1999 case of Maguad v. De Guzman,[412] are similar to the

case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to
the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in
which the respondent and the partner live and work, and the government employee is capacitated to
marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for disgraceful and immoral conduct and only considered
the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error
in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a
government employee is held liable. Nor is there an allegation that the norms of morality with respect to
illicit relations have shifted towards leniency from the time these precedent cases were decided. The
Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that
such illicit relationship constitutes disgraceful and immoral conduct punishable under the Civil Service
Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the abovecited cases, could be held administratively liable. However, there is a distinguishing factor that sets the
case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom
since her religion, the Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the churchs religious beliefs and practices. This distinguishing
factor compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of
Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards
of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of
morality beyond Socrates simple formulation is bound to offend one or another of the many rival theories
regarding what it means to live morally.[413] The answer to the question of how we ought to live necessarily
considers that man does not live in isolation, but in society. Devlin posits that a society is held together by
a community of ideas, made up not only of political ideas but also of ideas about the manner its members
should behave and govern their lives. The latter are their morals; they constitute the public
morality. Each member of society has ideas about what is good and what is evil. If people try to create a
society wherein there is no fundamental agreement about good and evil, they will fail; if having
established the society on common agreement, the agreement collapses, the society will
disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are
too loose, the members would drift apart. A common morality is part of the bondage and the bondage is
part of the price of society; and mankind, which needs society, must pay its price. [414] This design is
parallel with the social contract in the realm of politics: people give up a portion of their liberties to the
state to allow the state to protect their liberties. In a constitutional order, people make a fundamental
agreement about the powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental
agreement such as by revolution destroys the old order and creates a new one. [415] Similarly, in the realm
of morality, the breakdown of the fundamental agreement about the manner a societys members should
behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and other essential institutions.
[416]
From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he
is merely saying that in the midst of this diversity, there should nevertheless be a fundamental agreement
about good and evil that will govern how people in a society ought to live. His propositions, in fact,
presuppose diversity hence the need to come to an agreement; his position also allows for change of
morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in establishing and maintaining
their society, and these fundamental values and principles are translated into legislation that governs the
order of society, laws that may be amended from time to time. Harts argument propounded in Mr. Justice
Vitugs separate opinion that, Devlins view of people living in a single society as having common moral
foundation (is) overly simplistic because societies have always been diverse fails to recognize the
necessity of Devlins proposition in a democracy. Without fundamental agreement on political and moral
ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral

discernment has access to the public square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance. [417] Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the
majority, i.e., the mainstream or median groups. [418] Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies -- including protection of religious freedom not only for
a minority, however small- not only for a majority, however large- but for each of us -- the majority
imposes upon itself a 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 thatmorality is generally
founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation: the method of punishment is
in reality the amount of punishment.[427] Stated otherwise, there are certain standards of behavior or
moral principles which society requires to be observed and these form the bases of criminal law. Their
breach is an offense not only against the person injured but against society as a whole. [428] Thus, even if
all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the
public morals and the public interest in the moral order. [429] Mr. Justice Vitug expresses concern on this
point in his separate opinion. He observes that certain immoral acts which appear private and not harmful
to society such as sexual congress between a man and a prostitute, though consensual and private, and
with no injured third party, remains illegal in this country. His opinion asks whether these laws on private
morality are justified or they constitute impingement on ones freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondents conduct, which constitutes
concubinage,[430] is private in the sense that there is no injured party or the offended spouse consents to
the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of
private morals. The legislature included concubinage as a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in the case at bar. In the definition of the crime of
concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike
in rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the
offended spouse in concubinage negates the prosecution of the action, [432] but does not alter the

legislatures characterization of the act as a moral disapprobation punishable by law. The separate
opinion states that, (t)he ponencia has taken pains to distinguish between secular and private morality,
and reached the conclusion that the law, as an instrument of the secular State should only concern itself
with secular morality. The Court does not draw this distinction in the case at bar. The distinction relevant
to the case is not, as averred and discussed by the separate opinion, between secular and private
morality, but between public and secular morality on the one hand, and religious morality on the other,
which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this
reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those
wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the
New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the
concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due and observe honesty and good faith.
xxx
xxx

xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe
adequate legal remedy for that untold numbers of moral wrongs which is impossible for human
foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line between morality and
law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from
those principles which are written with words of fire in the conscience of man. If this premise is admitted,
then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one
by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can
not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal
rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative
attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that a person
may with impunity cause damage to his 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 citingDavis. Religion also
dictates how we ought to live for the nature of religion is not just to know, but often, to act in accordance
with mans views of his relations to His Creator. [434] But the Establishment Clause puts a negative bar

against establishment of this morality arising from one religion or the other, and implies the affirmative
establishment of a civil order for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the war of all sects against all; the establishment of a secular public
moral order is the social contract produced by religious truce. [435]
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of
Professional Responsibility for lawyers[436], or public morals in the Revised Penal Code, [437]or morals in
the New Civil Code,[438] or moral character in the Constitution, [439] the distinction between public and
secular morality on the one hand, and religious morality, on the other, should be kept in mind. [440] The
morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms. [441] Otherwise, if
government relies upon religious beliefs in formulating public policies and morals, the resulting policies
and morals would require conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires
that government be neutral in matters of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality.[442]
In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct
because it is detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society and not because the conduct is proscribed by the beliefs of one religion or the
other. Although admittedly, moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have religious opinions
and moral codes with a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
[443]
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a
discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the
religion clauses as in Church of the Lukumi Babalu Aye, Inc.where the U.S. Supreme Court invalidated
an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos
and the elevating influence of religion in society, however, the Philippine constitutions religion clauses
prescribe not a strict but 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 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. InBallard, the U.S.
Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier,
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 YnaresSantiago 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. 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 theSulu Islamic case does not provide a precedent to the case at
bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: (s)ince Art. 180 of
P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that
the penal laws relative to the crime of bigamy shall not apply to a person married x x x under Muslim
Law, it is not immoral by Muslim standards for Judge Malik to marry a second time while his first
marriage exists.[452] It was by law, therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general standards of morality. The
constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an
issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from
the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on illicit relations of civil
servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the


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

Pledging Faithfulness to avoid punishment for immorality. She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was issued to her by her
congregation after ten years of living together with her partner, Quilapio, and ten years before she entered
the judiciary. Ministers from her congregation testified on the authenticity of the Jehovahs Witnesses
practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the
ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct
but to make the union of their members under respondents circumstances honorable before God and
men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed
letters[453] of the OCA to the respondent regarding her request to be exempt from attending the flag
ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCAs
letters were not submitted by respondent as evidence but annexed by the investigating judge in
explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the
Court Administrator and Deputy Court Administrator had different positions regarding respondents
request for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief
and practice. Respondents request for exemption from the flag ceremony shows her sincerity in
practicing the Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a
practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that she is a member
in good standing. Nevertheless, should the government, thru the Solicitor General, want to further
question the respondents sincerity and the centrality of her practice in her faith, it should be given the
opportunity to do so. The government has not been represented in the case at bar from its incipience
until this point.
In any event, even if the Court deems sufficient respondents evidence on the sincerity of her
religious belief and its centrality in her faith, the case at bar cannot still be decided using the
compelling state interest test. The case at bar is one of first impression, thus the parties were not
aware of the burdens of proof they should discharge in the Courts use of the compelling state interest
test. We note that the OCA found respondents defense of religious freedom unavailing in the face of the
Courts ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of
the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been
enjoined to adhere to the exacting standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the
preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality
and decency. However, there is nothing in the OCAs memorandum to the Court that demonstrates how
this interest is so compelling that it should override respondents plea of religious freedom nor is it shown
that the means employed by the government in pursuing its interest is the least restrictive to respondents
religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the
compelling interest of the state. The burden of evidence should be discharged by the proper agency of
the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar,
the government should be given the opportunity to demonstrate the compelling state interest it seeks to
uphold in opposing the respondents stance that her conjugal arrangement is not immoral and punishable
as it comes within the scope of free exercise protection. Should the Court prohibit and punish her
conduct where it is protected by the Free Exercise Clause, the Courts action would be an
unconstitutional encroachment of her right to religious freedom. [454] We cannot therefore simply take
a passing look at respondents claim of religious freedom, but must instead apply the compelling state
interest test. The government must be heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the states compelling interest which can override respondents
religious belief and practice. To repeat, this is a case of first impression where we are applying the
compelling state interest test in a case involving purely religious conduct. The careful application of the

test is indispensable as how we will decide the case will make a decisive difference in the life of the
respondent who stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor
General is ordered to intervene in the case where it will be given the opportunity (a) to examine the
sincerity and centrality of respondents claimed religious belief and practice; (b) to present evidence on
the states compelling interest to override respondents religious belief and practice; and (c) to show that
the means the state adopts in pursuing its interest is the least restrictive to respondents religious
freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrators
receipt of this Decision.
SO ORDERED.

ALEJANDRO ESTRADA v SOLEDAD S. ESCRITOR


June 22, 2006 A.M. No. P-02-1651
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once
again stands before the Court invoking her religious freedom and her Jehovah God in a bid to save her
family united without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks
to wield its power to regulate her behavior and protect its interest in marriage and family and the integrity
of the courts where respondent is an employee. How the Court will tilt the scales of justice in the case at
bar will decide not only the fate of respondent Escritor but of other believers coming to Court bearing
grievances on their free exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003.[1]
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge
Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, for an
investigation of respondent Soledad Escritor, court interpreter in said court, for living with a man not her
husband, and having borne a child within this live-in arrangement. Estrada believes that Escritor is
committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act. [2] Consequently, respondent was
charged with committing disgraceful and immoral conduct under Book V, Title I, Chapter VI, Sec. 46(b)
(5) of the Revised Administrative Code. [3]
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a
widow, her husband having died in 1998.[4] She admitted that she started living with Luciano Quilapio, Jr.
without the benefit of marriage more than twenty years ago when her husband was still alive but living
with another woman. She also admitted that she and Quilapio have a son. [5] But as a member of the
religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society,
respondent asserted that their conjugal arrangement is in conformity with their religious beliefs and has
the approval of her congregation. [6] In fact, after ten years of living together, she executed onJuly 28,
1991, a Declaration of Pledging Faithfulness.[7]
For Jehovahs Witnesses, the Declaration allows members of the congregation who have been
abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting
union moral and binding within the congregation all over the world except in countries where divorce is
allowed. As laid out by the tenets of their faith, the Jehovahs congregation requires that at the time the
declarations are executed, the couple cannot secure the civil authorities approval of the marital

relationship because of legal impediments. Only couples who have been baptized and in good standing
may execute the Declaration, which requires the approval of the elders of the congregation. As a matter of
practice, the marital status of the declarants and their respective spouses commission of adultery are
investigated before the declarations are executed. [8] Escritor and Quilapios declarations were executed in
the usual and approved form prescribed by the Jehovahs Witnesses, [9] approved by elders of the
congregation where the declarations were executed, [10] and recorded in the Watch Tower Central Office.
[11]

Moreover, the Jehovahs congregation believes that once all legal impediments for the couple are
lifted, the validity of the declarations ceases, and the couple should legalize their union. In Escritors
case, although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her
mate was still not capacitated to remarry. Thus, their declarations remained valid. [12] In sum, therefore,
insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting
that her conjugal arrangement does not constitute disgraceful and immoral conduct for which she should
be held administratively liable,[13] the Court had to determine the contours of religious freedom under
Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.
A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and
development of the religion clauses in the United States (U.S.) and the Philippines, we held that in
resolving claims involving religious freedom (1) benevolent neutrality or accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondents plea of exemption based on the Free Exercise Clause (from
the law with which she is administratively charged), it is the compelling state interest test, the strictest
test, which must be applied.[14]
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the
ultimate issue of whether respondent was to be held administratively liable for there was need to give the
State the opportunity to adduce evidence that it has a more compelling interest to defeat the claim of the
respondent to religious freedom.Thus, in the decision dated August 4, 2003, we remanded the
complaint to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor
General (OSG) to intervene in the case so it can:
(a)

examine the sincerity and centrality of respondents claimed religious belief


and practice;

(b)

present evidence on the states compelling


respondents religious belief and practice; and

(c)

show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom. [15]

interest

to

override

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT
APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE
PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF
RELIGION.These issues have already been ruled upon prior to the remand, and constitute the law

of the case insofar as they resolved the issues of which framework and test are to be applied in
this case, and no motion for its reconsideration having been filed. [16] The only task that the Court is
left to do is to determine whether the evidence adduced by the State proves its more compelling interest.
This issue involves a pure question of fact.
B. LAW OF THE CASE
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case interpreting the
religious clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since
neither the complainant, respondent nor the government has filed a motion for reconsideration assailing
this ruling, the same has attained finality and constitutes the law of the case. Any attempt to reopen this
final ruling constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it would
overturn the parties right to rely upon our interpretation which has long attained finality, it also runs
counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr.
Justice Carpios belated attempts to disturb settled issues, and that he had timely presented his
arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the
religion clauses, because one cannot understand, much less intelligently criticize the approaches of the
courts and the political branches to religious freedom in the recent past in the United States without a
deep appreciation of the roots of these controversies in the ancient and medieval world and in the
American experience.[17] We delved into the conception of religion from primitive times, when it started
out as the state itself, when the authority and power of the state were ascribed to God. [18] Then, religion
developed on its own and became superior to the state, [19] its subordinate,[20] and even becoming an
engine of state policy.[21]
We ascertained two salient features in the review of religious history: First, with minor exceptions,
the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed,
and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for
the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religions
invaluable service. This was the context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American constitutional democracy and in
human history. [22]
Strictly speaking, the American experiment of freedom and separation was not translated in the
First Amendment. That experiment had been launched four years earlier, when the founders of the
republic carefully withheld from the new national government any power to deal with religion. As James
Madison said, the national government had no jurisdiction over religion or any shadow of right to
intermeddle with it. [23]
The omission of an express guaranty of religious freedom and other natural rights, however,
nearly prevented the ratification of the Constitution. The restriction had to be made explicit with the
adoption of the religion clauses in the First Amendment as they are worded to this day. Thus, the First
Amendment did not take away or abridge any power of the national government; its intent was to make
express the absence of power.[24] It commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof. [25]
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve
contradictory purposes. They have a single goalto promote freedom of individual religious beliefs and
practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious
beliefs with penalties for religious beliefs and practice, while the Establishment Clause prohibits
government from inhibiting religious belief with rewards for religious beliefs and practices. In other words,
the two religion clauses were intended to deny government the power to use either the carrot or the stick
to influence individual religious beliefs and practices.[26]
In sum, a review of the Old World antecedents of religion shows the movement of establishment
of religion as an engine to promote state interests, to the principle of non-establishment to allow the free
exercise of religion.
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses interpretation and construction in theUnited States,
not because we are bound by their interpretation, but because the U.S.religion clauses are the precursors
to the Philippine religion clauses, although we have significantly departed from the U.S. interpretation as
will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and
fraught with inconsistencies whether within a Court decision or across decisions. For while there is
widespread agreement regarding the value of the First Amendment religion clauses, there is an equally
broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as regards its exact meaning and the
paucity of records in the U.S. Congress renders it difficult to ascertain its meaning. [27]
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on
the religion clauses. First is the standard of separation, which may take the form of either (a) strict
separation or (b) the tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers
to as the second theory of governmental neutrality. Although the latter form is not as hostile to religion
as the former, both are anchored on the Jeffersonian premise that a wall of separation must exist
between the state and the Church to protect the state from the church. [28] Both protect the principle of
church-state separation with a rigid reading of the principle. On the other hand, the secondstandard,
the benevolent neutrality or accommodation, is buttressed by the view that the wall of separation is
meant to protect the church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state
from the church, and the states hostility towards religion allows no interaction between the two. According
to this Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be
erected. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could
the state adjust its secular programs to alleviate burdens the programs placed on believers. [29] Only the
complete separation of religion from politics would eliminate the formal influence of religious institutions
and provide for a free choice among political views, thus a strict wall of separation is necessary. [30]
Strict separation faces difficulties, however, as it is deeply embedded in American history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion. [31] For example, less than
twenty-four hours after Congress adopted the First Amendments prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of

Thanksgiving and Prayer.[32] Thus, strict separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to. [33]
The tamer version of the strict separationist view, the strict neutrality orseparationist view, (or,
the governmental neutrality theory) finds basis in Everson v. Board of Education, [34] where the Court
declared that Jeffersons wall of separation encapsulated the meaning of the First
Amendment. However, unlike the strict separationists, the strict neutrality view believes that the wall of
separation does not require the state to be their adversary. Rather, the state must be neutral in its
relations with groups of religious believers and non-believers. State power is no more to be used so as to
handicap religions than it is to favor them.[35] The strict neutrality approach is not hostile to religion, but
it is strict in holding that religion may not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit, much less
require, accommodation of secular programs to religious belief.[36]
The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the Free Exercise
Clause. As pointed out by Justice Goldberg in his concurring opinion in Abington School District v.
Schempp,[37] strict neutrality could lead to a brooding and pervasive devotion to the secular and a
passive, or even active, hostility to the religious which is prohibited by the Constitution. [38] Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision into
law by guaranteeing the free exercise of religion but not, say, of philosophy or
science. The strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications.[39]
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict
neutrality, is that while the Jeffersonian wall of separation captures the spirit of the American ideal of
church-state separation, in real life, church and state are not and cannot be totally separate. This is all
the more true in contemporary times when both the government and religion are growing and expanding
their spheres of involvement and activity, resulting in the intersection of government and religion at many
points.[40]
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the
wall of separation, associated with Williams, founder of the Rhode Islandcolony. Unlike the Jeffersonian
wall that is meant to protect the state from the church, the wall is meant to protect the church from the
state.[41] This doctrine was expressed inZorach v. Clauson,[42] which held, viz:
The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be
required to pay even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and
all other references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could

even object to the supplication with which the Court opens each session: God save
the United States and this Honorable Court.
xxx
xxx
xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then respects the religious nature
of our people and accommodates the public service to their spiritual needs. To hold that
it may not would be to find in the Constitution a requirement that the government show a
callous indifference to religious groups. . . But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw its weight against
efforts to widen their effective scope of religious influence. [43]
Benevolent neutrality recognizes that religion plays an important role in the public life of
the United States as shown by many traditional government practices which, tostrict neutrality, pose
Establishment Clause questions. Among these are the inscription of In God We Trust on American
currency; the recognition of America as one nation under God in the official pledge of allegiance to the
flag; the Supreme Courts time-honored practice of opening oral argument with the invocation God save
the United States and this Honorable Court; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to lead representatives in
prayer. These practices clearly show the preference for one theological viewpointthe existence of and
potential for intervention by a godover the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and in other forms of poor relief,
in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with
strong moral dimension. [44]
Examples of accommodations in American jurisprudence also abound, including, but not limited
to the U.S. Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to
lead the legislature in daily prayers, [45] or requiring employers to pay workers compensation when the
resulting inconsistency between work and Sabbath leads to discharge; [46] for government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior; [47] or to provide
religious school pupils with books; [48] or bus rides to religious schools; [49] or with cash to pay for statemandated standardized tests.[50]
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are
invoked in relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the separationistapproach or the benevolent
neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and
general applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the
government action is not religiously motivated, these laws have a burdensome effect on religious
exercise.
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the governments favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. The purpose
of accommodations is to remove a burden on, or facilitate the exercise of, a persons or institutions
religion. As Justice Brennan explained, the government [may] take religion into accountto exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs

and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere
in which voluntary religious exercise may flourish. [51] In the ideal world, the legislature would recognize
the religions and their practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and burdened may turn
to the courts for protection.[52]
Thus, what is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its burdensome
effect, whether by the legislature or the courts. [53] Most of the free exercise claims brought to the U.S.
Court are for exemption, not invalidation of the facially neutral law that has a burdensome effect. [54]
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in theU.S. blossomed
in the case of Sherbert v. Verner,[55] which ruled that state regulation that indirectly restrains or punishes
religious belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause.
[56]
According to Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount and compelling as to override
the free exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the
law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim
was denied. She sought recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state legislation. If,
therefore, the decision of the South Carolina Supreme Court is to withstand appellants
constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional right of
free exercise, or because any incidental burden on the free exercise of appellants
religion may be justified by a compelling state interest in the regulation of a
subject within the States constitutional power to regulate. . . .[57] (emphasis
supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to
merely show a rational relationship of the substantial infringement to the religious right and a
colorable state interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses,
endangering paramount interests, give occasion for permissible limitation. [58] The Court found that there
was no such compelling state interest to override Sherberts religious liberty. It added that even if the
state could show that Sherberts exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show thatno alternative
means of regulations would address such detrimental effects without infringing religious liberty. The
state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from
the Saturday work requirement that caused her disqualification from claiming the unemployment
benefits. The Court reasoned that upholding the denial of Sherberts benefits would force her to choose
between receiving benefits and following her religion. This choice placed the same kind of burden upon
the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This
germinal case of Sherbert firmly established the exemption doctrine, [59] viz:
It is certain that not every conscience can be accommodated by all the laws of the
land;but when general laws conflict with scruples of conscience, exemptions ought
to be granted unless some compelling state interest intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even
inadvertently, a sincerely held religious belief or practice, the state must justify the burden by

demonstrating that the law embodies a compelling interest, that no less restrictive alternative exists, and
that a religious exemption would impair the states ability to effectuate its compelling interest. As in other
instances of state action affecting fundamental rights, negative impacts on those rights demand the
highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in courtmandated religious exemptions from facially-neutral laws of general application whenever unjustified
burdens were found. [60]
Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S. Court again ruled that religious
exemption was in order, notwithstanding that the law of general application had a criminal penalty.
Using heightened scrutiny, the Court overturned the conviction of Amish parents for
violating Wisconsin compulsory school-attendance laws. The Court, in effect, granted exemption from a
neutral, criminal statute that punished religiously motivated conduct. Chief Justice Burger, writing for the
majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice of a
legitimate religious belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of free
exercise of religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any religion. The values
underlying these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in the exercise
of their undoubted power to promote the health, safety, and general welfare, or the
Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of
the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State to
control, even under regulations of general applicability. . . .This case, therefore, does
not become easier because respondents were convicted for their actions in refusing to
send their children to the public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . [62]
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims
were subject to heightened scrutiny or compelling interest test if government substantially burdened
the exercise of religion; (b) heightened scrutiny orcompelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases
where the burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit;[63]and (c) the Court could carve out accommodations or exemptions from a facially neutral law of
general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protectedconduct
beyond speech, press, or worship was included in the shelter of freedom of religion. Neither Sherberts
refusal to work on the Sabbath nor the Amish parents refusal to let their children attend ninth and tenth
grades can be classified as conduct protected by the other clauses of the First Amendment. Second,
indirect impositions on religious conduct, such as the denial of twenty-six weeks of unemployment

insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue
in Yoder, were prohibited. Third, as the language in the two cases indicate, the protection granted was
extensive. Only extremely strong governmental interests justified impingement on religious conduct, as
the absolute language of the test of the Free Exercise Clause suggests. [64]
Fourth, the strong language was backed by a requirement that the government provide proof of
the important interest at stake and of the dangers to that interest presented by the religious conduct at
issue. Fifth, in determining the injury to the governments interest, a court was required to focus on the
effect that exempting religious claimants from the regulation would have, rather than on the value of the
regulation in general. Thus, injury to governmental interest had to be measured at the margin: assuming
the law still applied to all others, what would be the effect of exempting the religious claimant in this case
and other similarly situated religious claimants in the future? Together, the fourth and fifth elements
required that facts, rather than speculation, had to be presented concerning how the governments
interest would be harmed by excepting religious conduct from the law being challenged. [65]
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would
impose a discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements
prevented the likelihood of exaggeration of the weight on the governmental interest side of the balance,
by not allowing speculation about the effects of a decision adverse to those interests nor accepting that
those interests would be defined at a higher level of generality than the constitutional interests on the
other side of the balance.[66]
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of
protection afforded to religiously motivated conduct. While not affording absolute immunity to religious
activity, a compelling secular justification was necessary to uphold public policies that collided with
religious practices. Although the members of theU.S. Court often disagreed over which governmental
interests should be considered compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong presumption in favor of the free
exercise of religion.[67] Most scholars and courts agreed that under Sherbert and Yoder, the Free
Exercise Clause provided individuals some form of heightened scrutiny protection, if not always a
compelling interest one.[68] The 1990 case of Employment Division, Oregon Department of Human
Resources v. Smith,[69] drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a
hallucinogenic substance. Specifically, individuals challenged the states determination that their religious
use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them
from receipt of unemployment compensation benefits. [70]
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said that [w]e have never held that an individuals religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free
to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence
contradicts that proposition. [71] Scalia thus declared that the right of free exercise does not relieve an
individual of the obligation to comply with a valid and neutral law of general applicability of the ground
that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). [72]
Justice Scalias opinion then reviewed the cases where free exercise challenges had been upheld
such as Cantwell, Murdock, Follet, Pierce, and Yoderand said that none involved the free exercise
clause claims alone. All involved the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press, or the right of parents to direct the education of
their children. [73] The Court said that Smith was distinguishable because it did not involve such a hybrid
situation, but was a free exercise claim unconnected with any communicative activity or parental
right. [74]
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial
of unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that

[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law. [75]
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general
applicability that burden religion. Justice Scalia said that [p]recisely because we are a cosmopolitan
nation made up of people of almost conceivable religious preference, and precisely because we value
and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as
applied to the religious objector, every regulation of conduct that does not protect an interest of the
highest order. The Court said that those seeking religious exemptions from laws should look to the
democratic process for protection, not the courts. [76]
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the
compelling justification approach were abandoned for evaluating laws burdening religion; neutral laws of
general applicability only have to meet the rational basis test, no matter how much they burden
religion. [77]
Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the compelling
state interest test, asserting that (t)he compelling state interest test effectuates the First Amendments
command that religious liberty is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear
and compelling government interest of the highest order. [78] She said that strict scrutiny is appropriate for
free exercise challenges because [t]he compelling interest test reflects the First Amendments mandate
of preserving religious liberty to the fullest extent possible in a pluralistic society. [79]
Justice OConnor also disagreed with the majoritys description of prior cases and especially its
leaving the protection of minority religions to the political process. She said that, First Amendment was
enacted precisely to protect the rights of those whose religious practice are not shared by the majority
and may be viewed with hostility. [80]
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall.
The dissenting Justices agreed with Justice OConnor that the majority had mischaracterized precedents,
such as in describing Yoder as a hybrid case rather than as one under the free exercise clause. The
dissent also argued that strict scrutiny should be used in evaluating government laws burdening
religion. [81]
Criticism of Smith was intense and widespread.[82] Academics, Justices, and a bipartisan
majority of Congress noisily denounced the decision. [83] Smith has the rather unusual distinction of being
one case that is almost universally despised (and this is not too strong a word) by both the liberals and
conservatives.[84] Liberals chasten the Court for its hostility to minority faiths which, in light
of Smiths general applicability rule, will allegedly suffer at the hands of the majority faith whether through
outright hostility or neglect. Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular nation that is increasingly hostile
to religious belief as an oppressive and archaic anachronism. [85]
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as
exhibiting a shallow understanding of free exercise jurisprudence. [86] First, the First amendment was
intended to protect minority religions from the tyranny of the religious and political majority. [87] Critics
of Smith have worried about religious minorities, who can suffer disproportionately from laws that enact
majoritarian mores.[88]Smith, in effect would allow discriminating in favor of mainstream religious groups
against smaller, more peripheral groups who lack legislative clout, [89] contrary to the original theory of the
First Amendment.[90] Undeniably, claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions andSmith virtually wiped out their judicial recourse for exemption.
[91]
Second, Smith leaves too much leeway for pervasive welfare-state regulation to burden religion while
satisfying neutrality. After all, laws not aimed at religion can hinder observance just as effectively as
those that target religion.[92] Government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory

imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost meaningless. [93] Third, the ReynoldsGobitis-Smith[94] doctrine simply defies common sense. The state should not be allowed to interfere with
the most deeply held fundamental religious convictions of an individual in order to pursue some trivial
state economic or bureaucratic objective. This is especially true when there are alternative approaches
for the state to effectively pursue its objective without serious inadvertent impact on religion. [95]
At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty in
defining and limiting the term religion in todays pluralistic society, and (2) the belief that courts have no
business determining the significance of an individuals religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise Clause must protect everything or it
must protect virtually nothing. As a result, the Court perceives its only viable options are to leave free
exercise protection to the political process or to allow a system in which each conscience is a law unto
itself.[96] The Courts characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable options, then
admittedly, the Court has a stronger argument. But the Free Exercise Clause cannot be
summarily dismissed as too difficult to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of religion must be
protected. Accordingly, the Constitution compels the Court to struggle with the contours
of what constitutes religion. There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Courts two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires
the Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where federal judges will regularly balance
against the importance of general laws the significance of religious practice, and then
dismisses it as a parade of horribles that is too horrible to contemplate.
It is not clear whom the Court feels would be most hurt by this parade of horribles.
Surely not religious individuals; they would undoubtedly prefer their religious beliefs to be
probed for sincerity and significance rather than acquiesce to the Courts approach of
simply refusing to grant any constitutional significance to their beliefs at all. If the Court is
concerned about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the lawmakers who
have sought to prevent the Court from dismantling the Free Exercise Clause through
such legislation as the [Religious Freedom Restoration Act of 1993], and in any case, the
Court should not be overly concerned about hurting legislatures feelings by requiring
their laws to conform to constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say that requiring the
judiciary to perform its appointed role as constitutional interpreters is a burden no judge
should be expected to fulfill.[97]
Parenthetically, Smiths characterization that the U.S. Court has never held that an individuals
religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state
is free to regulatean assertion which Mr. Justice Carpio adopted unequivocally in his dissenthas
been sharply criticized even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments that the Court was wrong as a
matter of original meaning [of the religion clauses] or that the decision conflicted with precedent
[i.e. the Smith decision made shocking use of precedent]those points were often conceded. [98]

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption
made in Yoder, by asserting that these were premised on two constitutional rights combinedthe right of
parents to direct the education of their children and the right of free exercise of religion. Under the Courts
opinion in Smith, the right of free exercise of religion standing alone would not allow Amish parents to
disregard the compulsory school attendance law, and under the Courts opinion in Yoder, parents whose
objection to the law was not religious would also have to obey it. The fatal flaw in this argument, however,
is that if two constitutional claims will fail on its own, how would it prevail if combined? [99] As
for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-compelled conduct that leads to job loss is
not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was so damaging in
its effect: the religious person was more likely to be entitled to constitutional protection when forced to
choose between religious conscience and going to jail than when forced to choose between religious
conscience and financial loss. [100]
Thus, the Smith decision elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free Exercise Clause to
disappear.[101] So much was the uproar that a majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. [102] The RFRA was adopted to negate the Smith test and
require strict scrutiny for free exercise claims. Indeed, the findings section of the Act notes
that Smith virtually eliminated the requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion. [103] The Act declares that its purpose is to restore the
compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its
application in all cases where free exercise of religion is substantially burdened; and to provide a claim of
defense to a person whose religious exercise is substantially burdened by government. [104] The RFRA
thus sought to overrule Smith and make strict scrutiny the test for all free exercise clause claims. [105]
In the City of Boerne v. Flores, [106] the U.S. Supreme Court declared the RFRA unconstitutional,
ruling that Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The
Court ruled that Congress is empowered to enact laws to enforce the amendment, but Congress is not
enforcing when it creates new constitutional rights or expands the scope of rights. [107]
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of
judicial respect for the constitutional decision-making by a coordinate branch of government. In Smith,
Justice Scalia wrote:
Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the political
process. Just as society believes in the negative protection accorded to the press by the
First Amendment is likely to enact laws that affirmatively foster the dissemination of the
printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well.
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly
unanimous Congress. Contrary to the Courts characterization of the RFRA as a kind of usurpation of the
judicial power to say what the Constitution means, the law offered no definition of Free Exercise, and on
its face appeared to be a procedural measure establishing a standard of proof and allocating the duty of
meeting it. In effect, the Court ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power of Congress to act
towards the states in matters of religion arises from the Fourteenth Amendment. [108]
From the foregoing, it can be seen that Smith, while expressly recognizing the power of
legislature to give accommodations, is in effect contrary to the benevolent neutrality or
accommodation approach. Moreover, if we consider the history of the incorporation of the religion
clauses in the U.S., the decision in Smith is grossly inconsistent with the importance placed by the
framers on religious faith. Smith is dangerous precedent because it subordinates fundamental rights of

religious belief and practice to all neutral, general legislation. Sherbert recognized the need to protect
religious exercise in light of the massive increase in the size of government, the concerns within its reach,
and the number of laws administered by it. However, Smith abandons the protection of religious exercise
at a time when the scope and reach of government has never been greater. It has been pointed out
that Smith creates the legal framework for persecution: through general, neutral laws, legislatures are
now able to force conformity on religious minorities whose practice irritate or frighten an intolerant
majority.[109]
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby
emasculating the Free Exercise Clause. Smith left religious freedom for many in the hands of the
political process, exactly where it would be if the religion clauses did not exist in the Bill of Rights. Like
most protections found in the Bill of Rights, the religion clauses of the First Amendment are most
important to those who cannot prevail in the political process. The Court in Smith ignores the fact that
the protections found in the Bill of Rights were deemed too important to leave to the political
process. Because mainstream religions generally have been successful in protecting their interests
through the political process, it is the non-mainstream religions that are adversely affected bySmith. In
short, the U.S. Supreme Court has made it clear to such religions that they should not look to the First
Amendment for religious freedom. [110]
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to
be constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary
or legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion clauses prohibit. [111]
Mandatory accommodation results when the Court finds that accommodation isrequired by the
Free Exercise Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs
when all three conditions of the compelling interest test are met, i.e, a statute or government action has
burdened claimants free exercise of religion, and there is no doubt as to the sincerity of the religious
belief; the state has failed to demonstrate a particularly important or compelling governmental goal in
preventing an exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or hostility could explain a refusal
to make exemptions. Thus, if the states objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, the Court must grant the
exemption. The Yoder case is an example where the Court held that the state must accommodate the
religious beliefs of the Amish who objected to enrolling their children in high school as required by
law. TheSherbert case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of Sherbert. [112]
In permissive accommodation, the Court finds that the State may, but is not required to,
accommodate religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme
Court upheld the constitutionality of tax exemption given by New York to church properties, but did not
rule that the state was required to provide tax exemptions. The Court declared that (t)he limits of
permissible state accommodation to religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause.[113] Other examples are Zorach v. Clauson,[114] allowing
released time in public schools and Marsh v. Chambers,[115] allowing payment of legislative chaplains
from public funds. Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the
legislative accommodation runs afoul of the establishment or the free exercise clause, it results to
a prohibited accommodation. In this case, the Court finds that establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions buttressed by the Free
Exercise Clause does not mean that all claims for free exercise exemptions are valid. [116] An example

where accommodation was prohibited is McCollum v. Board of Education,[117] where the Court ruled
against optional religious instruction in the public school premises. [118]
Given that a free exercise claim could lead to three different results, the question now remains as
to how the Court should determine which action to take. In this regard, it is the strict scrutinycompelling state interest test which is most in line with thebenevolent neutralityaccommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that
freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. Withreligion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or
practice, free exercise disputes arise commonly when a law that is religiously neutral and generally
applicable on its face is argued to prevent or burden what someones religious faith requires, or
alternatively, requires someone to undertake an act that faith would preclude. In essence, then, free
exercise arguments contemplate religious exemptions from otherwise general laws. [119]
Strict scrutiny is appropriate for free exercise challenges because [t]he compelling interest test
reflects the First Amendments mandate of preserving religious liberty to the fullest extent possible in a
pluralistic society.[120] Underlying the compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to strict scrutiny.[121]
In its application, the compelling state interest test follows a three-step process, summarized as
follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to demonstrate that
the law or practice is necessary to the accomplishment of some important (or
compelling) secular objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does not, the plaintiff is
entitled to exemption from the law or practice at issue. In order to be protected, the
claimants beliefs must be sincere, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause;
secular beliefs, however sincere and conscientious, do not suffice. [122]
In sum, the U.S. Court has invariably decided claims based on the religion clauses using either
the separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach
has also further been split by the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view as pronounced in Smith,
however, is that that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude that we have adoptedlock, stock and barrelthe
religion clauses as embodied in the First Amendment, and therefore, the U.S. Courts interpretation of the
same. Unlike in the U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constitutingpermissive accommodations, similar exemptions for religion are mandatory

accommodations under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain
provisions on tax exemption of church property,[123] salary of religious officers in government institutions,
[124]
and optional religious instruction. [125]Our own preamble also invokes the aid of a divine being.
[126]
These constitutional provisions are wholly ours and have no counterpart in
the U.S. Constitution or itsamendments. They all reveal without doubt that the Filipino people, in
adopting these constitutions, manifested their adherence to the benevolent neutrality approach that
requires accommodations in interpreting the religion clauses.[127]
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it
asserted that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to
the 1935 Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as
early as 1935, or more than three decadesbefore the U.S. Court could validate the exemption in Walz as
a form or permissible accommodation, we have already incorporated the same in our Constitution, as
amandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution.[128] As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S. Constitution
xxxxPhilippine jurisprudence and commentaries on the religious clauses also
continued to borrow authorities from U.S. jurisprudence without articulating the
stark distinction between the two streams of U.S. jurisprudence [i.e., separation
and benevolent neutrality]. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and
the two identifiable streams; thus, when a religion clause case comes before the Court,
aseparationist 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. From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the
religious clauses in the Philippine constitutions, and the enforcement of this intent
is the goal of construing the constitution.[129] [citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of the
religion clauses to effectively deny accommodations on the sole basis that the law in question is neutral
and of general application. For even if it were true that an unbroken line of U.S. Supreme Court
decisions has never held that an individuals religious beliefs [do not] excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to regulate, our own Constitutions have
made significant changes to accommodate and exempt religion. Philippine jurisprudence shows that
the Court has allowed exemptions from a law of general application, in effect, interpreting our
religion clauses to cover both mandatory and permissive accommodations. [130]

To illustrate, in American Bible Society v. City of Manila, [131] the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this case, plaintiff was
required by an ordinance to secure a mayors permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the citys ordinances. Plaintiff argued that
this amounted to religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the people of
thePhilippines. Although the Court categorically held that the questioned ordinances were not applicable
to plaintiff as it was not engaged in the business or occupation of selling said merchandise for profit, it
also ruled that applying the ordinance to plaintiff and requiring it to secure a license and pay a license fee
or tax would impair its free exercise of religious profession and worship and its right of dissemination of
religious beliefs as the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment. The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious information. Any
restraint of such right can only be justified like other restraints of freedom of
expressionon the grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent
of Schools.[132] The case involved several Jehovahs Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an
earlier ruling denying such exemption,[133] using the grave and imminent danger test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified.[134] (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on
the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case ofVictoriano v.
Elizalde Rope Workers Union[135] is an example of the application of Mr. Justice Carpios theory of
permissive accommodation, where religious exemption is granted by a legislative act.
In Victoriano, the constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt
employees from the application and coverage of a closed shop agreementmandated in another law
based on religious objections. Aunanimous Court upheld the constitutionality of the law, holding that
government is not precluded from pursuing valid objectives secular in character even if the incidental
result would be favorable to a religion or sect. Interestingly, the secular purpose of the challenged law
which the Court upheld was the advancement of the constitutional right to the free exercise of
religion.[136]
Having established that benevolent neutrality-accommodation is the framework by which free
exercise cases must be decided, the next question then turned to the test that should be used in
ascertaining the limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases involving purely conduct based on religious belief, as
in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the clear and present danger test but did not employ it. Nevertheless, this

test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive means
to accomplish the goal of the law. The case also used, albeit inappropriately, the
compelling
state
interest
test. After Victoriano, German went
back
to
the Gerona rule. Ebralinag then employed the grave and immediate danger test and
overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
clear and present danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present danger or
grave and immediate danger test involved, in one form or another, religious
speech as this test is often used in cases on freedom of expression. On the other
hand, the Gerona and German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which employed the grave
and immediate danger test. Victoriano was the only case that employed the
compelling state interest test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case
at
bar does
not
involve
speech
as
in American
Bible
Society, Ebralinag andIglesia ni Cristo where the clear and present danger and grave
and immediate danger tests were appropriate as speech has easily discernible or
immediate effects. TheGerona and German doctrine, aside from having been overruled,
is not congruent with thebenevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar toVictoriano, the present case involves purely conduct arising
from religious belief. The compelling state interest test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the states
interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom as this
is a fundamental right that enjoys a preferred position in the hierarchy of rights - the most
inalienable and sacred of all human rights, in the words of Jefferson. This right is sacred
for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty, thus the Filipinos implore the aid of Almighty God in order to
build a just and humane society and establish a government. As held in Sherbert, only
the gravest abuses, endangeringparamount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining which shall
prevail between the states interest and religious liberty, reasonableness shall be the
guide. The compelling state interest serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the compelling state interest test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved. [137] (citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the
applicability of the benevolent neutrality framework and compelling state interest test, states that [i]t
is true that a test needs to be applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. This assertion is inconsistent with the position negating

the benevolent neutrality oraccommodation approach. If it were true, indeed, that the religion clauses
do not requireaccommodations based on the free exercise of religion, then there would be no need for a
test to determine the validity of a free exercise claim, as any and all claims for religious exemptions from
a law of general application would fail.
Mr. Justice Carpio also asserts that [m]aking a distinction between permissive accommodation
and mandatory accommodation is more critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the limits of religious liberty under the
Free Exercise Clause, rather than presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive American jurisprudence (such as
the Smith case) just because it does not espouse the theory selected. He then asserts that
the Smith doctrine cannot be dismissed because it does not really espouse the strict neutrality approach,
but more of permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine inSmith is that
only legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in
determining a claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even
assuming that the Smith doctrine actually espouses the theory of accommodation or benevolent
neutrality, the accommodation is limited to the permissive, or legislative exemptions. It, therefore, cannot
be used as a test in determining the claims of religious exemptions directly under the Free Exercise
Clause because Smith does not recognize such exemption. Moreover, Mr. Justice Carpios advocacy of
theSmith doctrine would effectively render the Free Exercise protectiona fundamental right under our
Constitutionnugatory because he would deny its status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We
explained this process in detail, by showing the questions which must be answered in each step, viz:
First, [H]as the statute or government action created a burden on the free exercise of
religion? The courts often look into the sincerity of the religious belief, but without
inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is
ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation.
xxx
xxx

xxx

xxx

Second, the court asks: [I]s there a sufficiently compelling state interest to justify
this infringement of religious liberty? In this step, the government has to establish
that its purposes are legitimate for the state and that they are compelling.
Government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if
exemptions are granted. xxx
xxx

xxx

xxx

Third, the court asks: [H]as the state in achieving its legitimate purposes used
the least intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state? The analysis requires the state to
show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties xxx. [138] [citations omitted]
Again, the application of the compelling state interest test could result to three situations
of accommodation: First, mandatory accommodation would result if the Court finds that

accommodation is required by the Free Exercise Clause. Second, if theCourt finds that the State may,
but
is
not
required
to,
accommodate
religious
interests,permissive
accommodation results. Finally, if the Court finds that that establishment concerns prevail over
potential accommodation interests, then it must rule that theaccommodation is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He posits the view that the
law should prevail in the absence of a legislative exemption, and the Court cannot make the
accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases
of American Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine
of benevolent neutrality-accommodation covers not only the grant of permissive, or legislative
accommodations, but also mandatory accommodations. Thus, an exemption from a law of general
application is possible, even if anchored directly on an invocation of the Free Exercise Clause alone,
rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court
granted an accommodation/exemption to a religious act from the application of general penal laws,
permissive accommodation based on religious freedom has been granted with respect to one of the
crimes penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,[139] the U.S. Court expresslydenied to Mormons
an exemption from a general federal law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith. [140] In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of marrying more than one still
constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy shall not apply to a person marriedunder Muslim law. Thus, by legislative action,
accommodation is granted of a Muslim practice which would otherwise violate a valid and general criminal
law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision dated August
4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik,[141] he stated that a Muslim
Judge is not criminally liable for bigamy because Sharia law allows a Muslim to have more than one
wife.
From the foregoing, the weakness of Mr. Justice Carpios permissive-accommodation only
advocacy in this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that
the guaranty of religious liberty as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose religious practice conflict with those
laws, his theory is infirmed by the showing that the benevolent neutrality approach which allows for
both mandatory and permissive accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a permissive accommodation-only stance is the
antithesis to the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights,
is a preferred right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test inSherbert is
not applicable when the law in question is a generally applicable criminal law. Stated differently, even if
Mr. Justice Carpio conceded that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and who would make these
exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question
of mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding

that the Free Exercise Clause required the accommodation, or mandatory accommodations) has
already been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this
Court can make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal
laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine
religion clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more
pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the inadvertent burdensome effect that an otherwise facially neutral
law would have on religious exercise. Just because the law is criminal in nature, therefore, should not
bring it out of the ambit of the Free Exercise Clause. As stated by Justice OConnor in her concurring
opinion in Smith, [t]here is nothing talismanic about neutral laws of general applicability or general
criminal prohibitions, for laws neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as laws aimed at religion. [142]
Third, there is wisdom in accommodation made by the Court as this is the recourse of minority
religions who are likewise protected by the Free Exercise Clause. Mandatory accommodations are
particularly necessary to protect adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility to the minority. As stated in
our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter because some
laws are so necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could explain a
refusal to make exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury
to the religious consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations extends this
treatment to religious faiths that are less able to protect themselves in the political
arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will
it be applied for the first time, as an exemption of such nature, albeit by legislative act, has already been
granted to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other fundamental
rights in the Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty
or property, the Religion Clauses are stated in absolute terms, unqualified by the requirement of due
process, unreasonableness, or lawful order. Only the right to free speech is comparable in its absolute
grant. Given the unequivocal and unqualified grant couched in the language, the Court cannot simply
dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise that the law in
question is a general criminal law. [143] If the burden is great and the sincerity of the religious belief is not in
question, adherence to the benevolent neutrality-accommodation approach require that the Court
make an individual determination and not dismiss the claim outright.

At this point, we must emphasize that the adoption of the benevolent neutralityaccommodation approach does not mean that the Court ought to grant exemptions every time a free
exercise claim comes before it. This is an erroneous reading of the framework which the dissent of Mr.
Justice Carpio seems to entertain. Although benevolent neutrality is the lens with which the Court ought
to view religion clause cases, the interest of the state should also be afforded utmost
protection. This is precisely the purpose of the testto draw the line between mandatory, permissible
and forbidden religious exercise. Thus, under the framework, the Court cannot simply dismiss a
claim under the Free Exercise Clause because the conduct in question offends a lawor the
orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the
religion clauses of the Constitution.[144] As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed is the
protection of religious liberty not only for a minority, however small- not only for a
majority, however large but for each of us to the greatest extent possible within
flexible constitutional limits.[145]
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what
remained to be resolved, upon which remand was necessary, pertained to the final task of subjecting
this case to the careful application of the compelling state interest test, i.e., determining whether
respondent is entitled to exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing
Officers report,[146] along with the evidence submitted by the OSG, this case is once again with us, to
resolve the penultimate question of whether respondent should be found guilty of the administrative
charge of disgraceful and immoral conduct. It is at this point then that we examine the report and
documents submitted by the hearing officer of this case, and apply the three-step process of
the compelling state interest testbased on the evidence presented by the parties, especially the
government.
On the sincerity of religious belief, the Solicitor General categorically concedesthat the
sincerity and centrality of respondents claimed religious belief and practice are beyond serious doubt.
[147]
Thus, having previously established the preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the free exercise of respondents religious
beliefs, and there being no doubt as to the sincerity and centrality of her faith to claim the exemption
based on the free exercise clause, the burden shifted to the government to demonstrate that the law or
practice justifies a compelling secular objective and that it is the least restrictive means of achieving that
objective.
A look at the evidence that the OSG has presented fails to demonstrate the gravest
abuses, endangering paramount interests which could limit or override respondents
fundamental right to religious freedom. Neither did the government exert any effort to show that
the means it seeks to achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:

1. EXHIBIT A-OSG AND SUBMARKING The September 30, 2003 Letter to the
OSG of Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible and
Tract Society of the Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondents claimed religious belief and practice.
2. EXHIBIT B-OSG AND SUBMARKING The duly notarized
datedSeptember 30, 2003 issued and signed by Bro. Leach.

certification

PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed


religious belief and practice; and (2) to prove that the Declaration of Pledging
Faithfulness, being a purely internal arrangement within the congregation of the
Jehovahs Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to
override respondents claimed religious belief and practice, in order to protect marriage and the family as
basic social institutions. The Solicitor General, quoting the Constitution [148] and the Family Code,
[149]
argues that marriage and the family are so crucial to the stability and peace of the nation that the
conjugal arrangement embraced in the Declaration of Pledging Faithfulness should not be recognized or
given effect, as it is utterly destructive of the avowed institutions of marriage and the family for it reduces
to a mockery these legally exalted and socially significant institutions which in their purity demand respect
and dignity.[150]
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far
as he asserts that the State has a compelling interest in the preservation of marriage and the family as
basic social institutions, which is ultimately the public policy underlying the criminal sanctions against
concubinage and bigamy. He also argues that in dismissing the administrative complaint against
respondent, the majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation... and facilitates the circumvention of the Revised Penal Code. According
to Mr. Justice Carpio, by choosing to turn a blind eye to respondents criminal conduct, the majority is in
fact recognizing a practice, custom or agreement that subverts marriage. He argues in a similar fashion
as regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of
marriage and the family, or even in the sound administration of justice. Indeed, the provisions by which
respondents relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions
on marriage and family in the Civil Code and Family Code, all clearly demonstrate the States need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental
rights in our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of
rights the most inalienable and sacred of human rights, in the words of Jefferson. Hence, it is
not enough to contend that the states interest is important, because our Constitution itself holds the right
to religious freedom sacred. The State must articulate in specific terms the state interest involved in
preventing the exemption, which must be compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right to religious freedom. To rule otherwise would be to
emasculate the Free Exercise Clause as a source of right by itself.
Thus, it is not the States broad interest in protecting the institutions of marriage and the family,
or even in the sound administration of justice that must be weighed against respondents claim, but the
States narrow interest in refusing to make an exception for the cohabitation which respondents faith finds
moral. In other words, the government must do more than assert the objectives at risk if exemption
is given; it must precisely show how and to what extent those objectives will be undermined if
exemptions are granted.[151] This, the Solicitor General failed to do.

To paraphrase Justice Blackmuns application of the compelling interest test, the States
interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim,
cannot be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce
that prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing the
concubinage or bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The States asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and
Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would
effectively break up an otherwise ideal union of two individuals who have managed to stay together as
husband and wife [approximately twenty-five years] and have the effect of defeating the very substance
of marriage and the family.
The Solicitor General also argued against respondents religious freedom on the basis of
morality, i.e., that the conjugal arrangement of respondent and her live-in partner should not be
condoned because adulterous relationships are constantly frowned upon by society; [152] and that State
laws on marriage, which are moral in nature, take clear precedence over the religious beliefs and
practices of any church, religious sect or denomination on marriage. Verily, religious beliefs and practices
should not be permitted to override laws relating to public policy such as those of marriage. [153]
The above arguments are mere reiterations of the arguments raised by Mme. Justice YnaresSantiago in her dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto.
These arguments have already been addressed in our decision dated August 4, 2003.[154] In said
Decision, we noted that Mme. Justice Ynares-Santiagos dissenting opinion dwelt more on the standards
of morality, without categorically holding that religious freedom is not in issue. [155] We, therefore, went into
a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a religion,
including the morality it sanctions. [156] Thus, when the law speaks of immorality in the
Civil Service Law or immoral in the Code of Professional Responsibility for lawyers,
[157]
or public morals in the Revised Penal Code, [158] or morals in the New Civil Code,
[159]
or moral character in the Constitution, [160] the distinction between public and secular
morality on the one hand, and religious morality, on the other, should be kept in mind; [161]
(b) Although the morality contemplated by laws is secular, benevolent
neutralitycould allow for accommodation of morality based on religion, provided it does
not offend compelling state interests;[162]
(c) The jurisdiction of the Court extends only to public and secular
morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority.[163]
(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this public and
secular morality fall under the phrase disgraceful and immoral conduct for which a
government employee may be held administratively liable. [164] Only one conduct is in
question before this Court, i.e., the conjugal arrangement of a government employee
whose partner is legally married to another which Philippine law and jurisprudence
consider both immoral and illegal.[165]

(e) While there is no dispute that under settled jurisprudence, respondents


conduct constitutes disgraceful and immoral conduct, the case at bar involves the
defense of religious freedom, therefore none of the cases cited by Mme. Justice YnaresSantiago apply.[166] There is no jurisprudence in Philippine jurisdiction holding that the
defense of religious freedom of a member of the Jehovahs Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or
some other law. We cannot summarily conclude therefore that her conduct is likewise so
odious and barbaric as to be immoral and punishable by law.[167]
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent
with conduct prejudicial to the best interest of the service, and we reiterate thatthe dissent offends due
process as respondent was not given an opportunity to defend herself against the charge of conduct
prejudicial to the best interest of the service. Indeed, there is no evidence of the alleged prejudice to the
best interest of the service.[168]
Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court
grants respondent exemption from the laws which respondent Escritor has been charged to have violated,
the exemption would not apply to Catholics who have secured church annulment of their marriage even
without a final annulment from a civil court. First, unlike Jehovahs Witnesses, the Catholic faith considers
cohabitation without marriage as immoral. Second, but more important, the Jehovahs Witnesses have
standards and procedures which must be followed before cohabitation without marriage is given the
blessing of the congregation. This includes an investigative process whereby the elders of the
congregation verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to
cohabit without marriage because once all legal impediments for the couple are lifted, the validity of the
Declaration ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar
as he raises the issue of equality among religions, we look to the words of the Religion Clauses, which
clearly single out religion for both a benefit and a burden: No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof On its face, the language grants a
unique advantage to religious conduct, protecting it from governmental imposition; and imposes a unique
disadvantage, preventing the government from supporting it. To understand this as a provision which
puts religion on an equal footing with other bases for action seems to be a curious reading. There are no
free exercise of establishment provisions for science, sports, philosophy, or family relations. The
language itself thus seems to answer whether we have a paradigm of equality or liberty; the language of
the Clause is clearly in the form of a grant of liberty.[169]
In this case, the governments conduct may appear innocent and nondiscriminatory but in effect, it
is oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which perspective is appropriate would seem easy
to answer. Moreover, the text, history, structure and values implicated in the interpretation of the clauses,
all point toward this perspective. Thus, substantive equalitya reading of the religion clauses which
leaves both politically dominant and the politically weak religious groups equal in their inability to use the
government (law) to assist their own religion or burden othersmakes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities). [170]
As previously discussed, our Constitution adheres to the benevolent neutralityapproach that
gives room for accommodation of religious exercises as required by the Free Exercise Clause. [171] Thus,
in arguing that respondent should be held administratively liable as the arrangement she had was
illegal per se because, by universally recognized standards, it is inherently or by its very nature bad,
improper, immoral and contrary to good conscience, [172] the Solicitor General failed to appreciate
that benevolent neutrality could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests.[173]

Finally, even assuming that the OSG has proved a compelling state interest, it has to
further demonstrate that the state has used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the legitimate goal of the state, i.e., it
has chosen a way to achieve its legitimate state end that imposes as little as possible on religious
liberties.[174] Again, the Solicitor General utterly failed to prove this element of the test. Other than the two
documents offered as cited above which established the sincerity of respondents religious belief and the
fact that the agreement was an internal arrangement within respondents congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any such
evidence to show that the means the state adopted in pursuing this compelling interest is the least
restrictive to respondents religious freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent
Escritors conjugal arrangement cannot be penalized as she has made out a case for exemption from the
law based on her fundamental right to freedom of religion. The Court recognizes that state interests must
be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious
exercise as a preferred freedom, however, man stands accountable to an authority higher than the state,
and so the state interest sought to be upheld must be so compelling that its violation will erode the very
fabric of the state that will also protect the freedom. In the absence of a showing that such state interest
exists, man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is DISMISSED.
SO ORDERED.

SECTION 5 FREEDOM OF RELIGION


C. INTRAMURAL DISPUTE
G.R. No. L-5917

January 28, 1955

SANTIAGO A. FONACIER, petitioner,


vs.
COURT OF APPEALS and ISABELO DE LOS REYES, Jr., respondents.
Alejo Mabanag for petitioner.
Claro M. Recto for the respondents.
Ferdinand E. Marcos as amicus curiae.
BAUTISTA ANGELO, J.:
This case was instituted in the Court of First Instance of Manila by the Iglesia Filipina Independiente,
represented by its Supreme Bishop Gerardo M. Bayaca, against Bishop Santiago A. Fonacier seeking to
require the latter to render an accounting of his administration of all the temporal properties he has in his
possession belonging to said church and to recover the same from him on the ground that he had ceased
to be the Supreme Bishop of said religious organization. Bishop Isabelo de los Reyes, Jr., having been
elected as Supreme Bishop after the filing of the original complaint, was later made a co-plaintiff in a
supplementary complaint.
Mons. Fonacier claims as a defense that he has not been properly removed as Supreme Bishop; that his
legal successor was Juan Jamias who had been elected in accordance with the constitution of the church;
that he had already rendered an accounting of his administration to Bishop Jamias and turned over all the
properties to the latter; that Bishop Isabelo de los Reyes, Jr. formally joined the Protestant Episcopal

Church of America and for this reason he has ceased to be a member of the Iglesia Filipina
Independiente; and that Bishops De los Reyes and Bayaca having abandoned the faith, fundamental
doctrines and practices of the Iglesia Filipina Independiente, they ceased to be members thereof and
consequently, have no personality to maintain the present action.
On May 17, 1950, the court rendered judgment declaring Mons. Isabelo de los Reyes, Jr. as the sole and
legitimate Supreme Bishop of the Iglesia Filipina Independiente, and ordering Mons. Fonacier to render
an accounting of his administration of the properties and funds of the church "from the time he began
occupying the position of Secretario de Economia Temporal thereof until the present time.".
When the case was taken to the Court of Appeals, the latter found the decision of the Court of origin in
accordance with law and the evidence and affirmed the same in toto, and the case is now before us by
virtue of a petition for review interposed by defendant Mons. Fonacier.
Petitioner assigns in this instance twelve errors as allegedly committed by the Court of Appeals which, in
his opinion, merely involve or raise legal questions which can be looked into in the present petition for
review, but this assertion is disputed by respondent who claims that the issues herein involved call for
factual conclusions inasmuch as they require an examination of the oral and documentary evidence
submitted by the parties. As to which of these contention is correct, we are not in a position to determine
at the moment, the only thing clear being that in a petition for review, "The judgment of the Court of
Appeals is conclusive as to the facts, and cannot be reviewed by the Supreme Court. The entry of such
judgment is the end of all questions of fact." (Moran, Comments on the Rules of Court, Vol. 1, 1952, ed.,
p. 952), or, as section 2, Rule 46 of the Rules of Court provides, "only questions of law may be raised in
the petition and must be distinctly set forth", and conformably with this provision this Court has constantly
ruled that it would not disturb the findings of fact of the Court of Appeals in an appeal by certiorari (De
Vera vs. Fernandez, 88 Phil., 668; Velasco vs. The Court of Appeals, 90 Phil., 689; Monfort vs. Aguinaldo,
L-4104, May 2, 1952.) Considering the nature of the present appeal, we would therefore proceed to
restate the facts as found by the Court of Appeals, limiting our function to ascertaining or determining if
the conclusions drawn from said facts are in accordance with law or the constitution of the Iglesia Filipina
Independiente which, in our opinion, is the key to the solution of the present controversy, and in our
discussion of the issues as reflected in the various assignments of error, we will follow the same
arrangement made in petitioner's brief without prejudice of discussing together or in a group those which
we believe are interrelated and can be better elucidated than by discussing them separately.
The main facts which led to the present controversy as found by the Court of Appeals are: "It is not
disputed that upon the death of Mons. Aglipay, the Supreme Head of the IFI since 1902, Mons. Fonacier
was elected Obispo Maximo, on October 14,1940, in accordance with the constitution of the church. The
latter's successor should have been elected by the Asemblea Magna of the Church on September 1,
1943. However, due to circumstances brought about by the Pacific War, it was agreed, on December 16,
1941, by the Bishops stationed in Manila and neighboring provinces that Mons. Fonacier should hold over
as Obispo Maximo of IFI, for the duration of the emergency created by the war. After the liberation of the
Philippines, and on September 1, 1945, an attempt was made to convene the Asemblea Magna for the
purpose of electing the Bishop Maximo, but owing to lack of quorum, the Bishops present agreed that
Mons. Fonacier would continue for another year, or until September 1, 1946.
On September 2, 1945, the Consejo Supremo de Obispos (Supreme Council of Bishops) of the IFI
convened and approved the designation of bishops to their respective bishoprics. Here began the conflict
which culminated in the division Mons. Alejandro Remollino was assigned as bishop of the diocese of
Cavite. Upon learning that the latter notified the priests of his bishopric regarding his assignment, Mons.
Fonacier wrote him a letter dated September 18, 1945 enjoining him from assuming the duties of his
office and from taking possession of the diocese of Cavite until he (Fonacier) had approved the
appointment made by the Supreme Council as provided for in the constitution. To this letter Bishop
Remollino replied explaining his side and adding that he was ready to defend his stand on the matter
before the courts of justice. In view of this attitude, Mons. Fonacier ordered the expulsion of Bishop

Remollino from the church and also of Bishop Manuel Aguilar (Exhibits 3 and 4) whom Mons. Fonacier
suspected to be the instigator of certain acts of insubordination and defamation against him.
"On December 1, 1945, Bishop Manuel Aguilar filed charges (Exhibit B) against Mons. Fonacier as
Supreme Bishop which were submitted to a meeting of the Supreme Council of Bishops, held on January
21, 1946, which decreed the forced resignation of appellant, and to the Asemblea Magna or Asemblea
General of the church, held on January 22, 1946. This body approved the forced resignation of appellant
(petitioner Fonacier) and elected Bishop Gerardo M. Bayaca as Supreme Bishop to succeed Mons.
Fonacier.
"When notified of his removal as Obispo Maximo and required to turn over all the funds, documents and
other properties of the church to his successor, appellant refused. Hence, the commencement of the
instant action in the Court of First Instance of Manila.
On September 1, 1946 the Asemblea Magna convened and elected Mons. Isabelo de los Reyes, Jr. as
Obispo Maximo (respondent herein). On the same date Mons. Fonacier and some of his followers met at
the Manila Hotel and elected Mons. Juan Jamias as their Supreme Bishop. Thus two factions of the IFI
were created.
"The faction under Mons. Isabelo de los Reyes, Jr. according to the statement (Exhibit EE) of the Director
of National Library, issued on May 22, 1947, have nineteen bishops and 252 priests while the faction
under Mons. Juan Jamias had ten bishops and only 40 priests. Thus on June 23, 1947, the Secretary of
Public Instruction promulgated an order to the effect that for administrative purposes, Mons. Isabelo de
los Reyes, Jr., was recognized as sole head of IFI and the applications of priests of said church for
permits to solemnize marriages would be granted if it were shown thereon that they recognized Isabelo
de los Reyes, Jr., as the Obispo Maximo of said church. The Supreme Court, however, denied the power
of the Secretary to stop the Fonacier group from obtaining licenses to solemnize marriages.
"On January 22, 1948, the bishop and priests under Mons. De los Reyes, Jr., had increased from 252 to
293 while those under Mons. Jamias were only 64 (Exhibit)25) and Mons. De los Reyes, Jr. was duly
registered as corporation sole for the administration of the temporalities of the Iglesia Filipina
Independiente, pursuant to the provisions of Articles 154-164 of the Corporation Law.'".
I.
The petitioner assigns as first error the following: The Court of Appeals erred "in holding that the ouster of
Bishops Manuel Aguilar, Alejandro Remollino, Isabelo de los Reyes Jr., Gerardo Bayaca, Juan Quijano
and Pablo Tablante decreed by the Supreme Council and the petitioner as Obispo Maximo was illegal,"
and the facts concerning the ouster of Bishops Remollino and Aguilar as narrated by the Court of Appeals
are:.
At the meeting of the Supreme Council of Bishops held on September 2, 1945, Mons. Alejandro
Remollino was appointed to the diocese of Cavite. He at once advised the priests of his bishopric
Fonacier, wrote Bishop Remolino a letter, dated September 18, 1945 (Exhibit T) calling his
attention to the fact that the latter had been quite hasty in returning to the diocese of Cavite
without waiting for the approval by the Obispo Maximo of the Supreme Council's resolution of
September 2, 1945 as provided for in the constitution of the church, which requires the approval
of the Obispo Maximo to all resolutions of the Supreme Council before becoming effective and
enjoining him from assuming the duties of his office and from taking possession of said diocese.
Mons. Remollino answered appellant with a letter (Exhibit U) dated September 19, 1945, stating
that he had been appointed Bishop of the diocese of Cavite by the late Mons. Aglipay; that said
appointment was subsequently confirmed by the Supreme Council of Bishops; that he had ever
since been the Bishop of said diocese; and that, therefore, he was ready to defend his stand on
the matter before the courts of justice. Resenting such attitude of Bishop Remollino, taking it as a

defiance and an insult, considering it as a direct contempt of the Supreme Head of the church,
and suspecting Bishop Manuel Aguilar as the one who drafted said letter and as the instigator,
among the priests and followers of the church, of what he considered as acts of insubordination,
defamation and vilification against him, appellant prepared and signed a document, dated
October 8, 1945, purporting to be a decree of expulsion, whereby he decreed the expulsion of
Msgrs. Aguilar and Remollino from the church (Exhibit 3). This document was signed by
appellant, countersigned by the Secretary General Bishop Isabelo de los Reyes, Jr. and agreed
to by Bishops Juan Jamias, Martin Jamias, Gregorio Gaerlan, Leopoldo Ruiz, Gerardo Bayaca
and Pablo Tablante. On October 16, 1945 the last-named six bishops approved a resolution
decreeing the expulsion of Aguilar and Remollino from the church (Exhibit 4), which they signed
and appears to have been countersigned by the Secretary General and approved by appellant as
Obispo Maximo. It is claimed by appellant that due to the intervention of persons interested in
settling the controversy within the church, said decree of expulsion (Exhibit 4) was not put into
effect immediately and that the, appellant, agreed to consider the matter closed after receiving
from Aguilar and Remollino a letter of apology which the latter promised to write. In other words,
there was an understanding that if no letter of apology was written by Bishops Aguilar and
Remollino. Exhibits 3 and 4 will become operative. Appellant also contends that having been
informed by Bishop De los Reyes, Jr. that Bishops Aguilar and Remollino refused to sign a letter
of apology, appellant issued the communication (Exhibit BB) on November 20, 1945, whereby he
declared the effectivity of the decree of ouster of the aforesaid two bishops, dated October 8,
1945. (Exhibit 3).
The issue now to be determined is: Was the ouster of Bishops Manuel Aguilar and Alejandro Remollino
legal and valid?.
Petitioner contends that such ouster was legal and valid because it was decreed by him as Supreme
Bishop and the act was sanctioned by the Supreme Council in accordance with the constitution of the
church as a punishment for the action of said bishops in defying and slandering the Supreme Head of the
church and in campaigning to destroy the unity of the church. Furthermore, petitioner contends that,
under the constitution of the church Bishops Aguilar and Remollino had the right to appeal from the
decree of expulsion to the Curia de Apelaciones which had jurisdiction to review and render final
judgment thereon, but that they did not avail themselves of this remedy and, hence, this decree became
final and executory and cannot now be attacked collaterally outside of the church, for the civil courts have
no jurisdiction to review or revise it.
We find that this claim is but a reiteration of what petitioner has advanced when this case was brought
before the Court of Appeals and the latter has already passed upon it after making a careful discussion of
the evidence, oral and documentary, in connection with the pertinent provisions of the constitution of the
Iglesia Filipina Independiente touching upon the powers of the Supreme Bishop concerning removal of
bishops of the church, and in connection with pertinent authorities relative to the doctrine of interference
which civil courts might have regarding ecclesiastical matters. And we find that the discussion made by
the Court of Appeals on the points raised by petitioner is correct.
Take for instance the question relative to the authority of the civil courts to review or revise an action of
decree of the ecclesiastical courts or authorities concerning which the Court of Appeals upheld the power
of the civil courts to look into the propriety of the decree of ouster because of the plea of respondent that it
was not issued in accordance with the procedure laid down in the constitution of the Iglesia Filipina
Independiente. The Court of Appeals entertained the view that since it is claimed that the ouster was
made by an unauthorized person, or in a manner contrary to the constitution of the church, and that the
ousted bishops were not given notice of the charges against them nor were they afforded an opportunity
to be heard, the civil courts, have jurisdiction to review the action regarding said ouster citing in support of
its view some authorities from Vol. 45 of the American Jurisprudence which we believe to be pertinent and
decisive of the issue under consideration (45 Am. Jur. pp. 751-754). And, for the purposes of this
decision, it is enough for us to quote the following as a representative authority: "Where, however, a
decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with

the laws of the land, it will not be followed by the civil courts. * * * In some instances, not only have the
civil courts assumed the right to inquire into the jurisdiction of 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 laws of the church. Thus, it has been held that expulsion of a member without notice or
an opportunity to be heard is not conclusive upon the civil courts when a property right is involved." (45
Am. Jur., p. 77.).
The claim that the ouster in question was legal and valid because petitioner, as Supreme Bishop, could
act alone pursuant to the constitution of the church wherein it is provided that the Supreme Bishop is the
supreme head of the Iglesia Filipina Independiente and as such shall have full powers to impose the
penalties of dismissal, confinement in the seminary, suspension, fine, transfer, etc. which, without
contravening the penal laws of the constituted government, can be imposed upon the bishops, and that
said power can be exercised even without the intervention of the Supreme Council, cannot be entertained
in the light of the very provisions of the constitution of the church, it appearing that the alleged power of
the Supreme Bishop under the constitution is not all-embracing but limited and, in any event, the final
action shall be taken by the Supreme Council. Thus, the pertinent provisions of the constitution of the
church are quoted hereunder for ready reference:.
Tendra omnimodas facultades para imponer las penas deseparacion, reclusion en el Seminario,
suspension, multa, translado y otras, que, sin contravenir las leyes penales del Gobierno civil
establecido, se puedan imponer a los Apostoles * * *.
Sin embargo el Obispo Maximo no podra castigar a nadie, sinoir al acusado y sin darle medios
para justificarse, y aun asi, tendra que oir la opinion del Juez de la Curia de Apelaciones, y en
caso gravisimo, al Consejo Supremo de Obispos (Sec. VI, Cap.III, Parte II, p. 39., Reglas
Constitucionales, Exhibit K).
Los Obispos, en caso de delinquir, seran juzgados por el ConsejoSupremo, bajo la sancion del
Obispo Maximo (Sec. VII, id., p. 40).
Los que se crean condenados injustamente podran apelar a la Curia de Apelaciones, la cual
fallara inapelabelemente.
La Curia de Apelaciones dirimira las competencias y conocera en primera instancia de las
condenas que dictare el Obispo Maximo, pudiendose apelar al Consejo Supremo de Obispos, en
los casos enque se impongan exageradas penas. (Sec. VIII, Ibid., p. 40).
It can be plainly seen from a cursory reading of the foregoing provisions that the Supreme Bishop cannot
punish an erring member without first giving him an opportunity to be heard and to defend himself, and, in
any event, without first securing the opinion of the Judge of the Curia de Apelaciones, and in serious
cases, the case needs to be referred to the Supreme Council of Bishops. With regard to a case where a
bishop is involved, the action shall be submitted to the Supreme Bishop for approval. And in case of guilt,
the accused may appeal to the Curia de Apelaciones, whose decision shall be final. Such is the
procedure laid down by the constitution of the church when disciplinary action needs to be taken against a
delinquent member. It is not, therefore, correct to say that the Supreme Bishop can take action alone in
connection with an erring bishop, even in disregard of the Supreme Council, in view of the over-all powers
he claims to possess under the circumstances.
That the procedure above outlined is correct and apparently is in line with the practice consistently
followed by the Iglesia Filipina Independiente against its erring officials, finds reaffirmation in the alleged
ouster of Bishops De los Reyes, Jr. Bayaca, Quijano, and Tablante wherein it appears that, in effecting
said ouster, the group headed by petitioner followed a procedure which apparently is in accordance with
the above quoted provisions of the constitution and which, as found by the Court of Appeals is as follows:
"Formal charges were filed with the Supreme Council. This body convened on January 29, 1946, for the

purpose of considering said charges. A President of the Supreme Council was elected. A bishop was
appointed as judge of the Curia de Apelaciones. The charges were referred to the President of the Curia
de Apelaciones for action, who reported that the same being so serious should be taken cognizance of by
the Supreme Council. The Supreme Council resolved to notify the respondents of the charges requiring
them to answer within 24 hours should they wish to plead any defense. Two bishops were commissioned
to serve notices upon the respondents. Since propositions of an amicable settlement failed, the Supreme
Council constituted itself into a tribunal to hear the charges. A hearing was held at which the respondents
failed to appear or to present any defense. At said hearing the Supreme Council received evidence and,
after hearing the opinion of the judge of the Curia de Apelaciones, approved and promulgated a decision
ordering the ouster of the respondents.".
Since, according to the Court of Appeals, no procedure similar to the one followed by the faction of
petitioner in connection with the case of Bishop De los Reyes, Bayaca and others, was ever adopted as
far as Bishops Aguilar and Remollino are concerned, or no formal charges were filed against the latter,
nor an investigation or hearing ever held, it follows that the ouster of said two bishops was null and void, it
being in violation of the constitution of the church.
Let us now take up the alleged ouster of Bishops De los Reyes, Bayaca, Quijano and Tablante which,
according to petitioner, has been validly decreed by him as Supreme Bishop, and, as usual, let us refer to
the facts as found by the Court of Appeals:.
After having been noticed of his removal as Supreme Bishop of the IFI and required to turn over
all the funds, documents and other properties of the Church he had in his possession to his
successor by letter, Exhibit I, dated January 23, 1946, the appellant organized a group of rebels
of the church which, on January 29,1946, formed a Supreme Council composed of appellant
himself, Bishop Jamias (J.) Jamias (M.), Gaerlan and Ruiz and the bishops he illegally
consecrated, namely, Evangelista, Elegado, Bergonia, Pasetes and Mondala. Said Supreme
Council met in Pasay; elected Juan Jamias as President of the Supreme Council, who, in turn,
appointed Gaerlan and Ruiz, as Juez de la Curia de Apelaciones and Secretary General,
respectively; and took cognizance of the charges of Rev. Flaviano Lorenzo against Mons. Isabelo
de los Reyes, Jr., Gerardo Bayaca, Juan Kijano and Pablo Tablante for alleged high treason to
the IFI (Exh. 31). On January 30, 1946 the same Supreme Council met, constituted itself as a
tribunal and rendered decision decreeing the separation of the above mentioned Bishops Isabelo
de los Reyes, Jr. et al., from the IFI.
It should be noted that the action against the abovementioned bishops was taken after petitioner had
been notified of his removal as Supreme Bishop of the Iglesia Filipina Independiente and required to turn
over all the funds, documents, and properties of the Church to his successor by the Supreme Council of
Bishops which decreed his forced resignation on January 21, 1946. If petitioner has ceased to be the
Supreme Bishop when he took that action against the four bishops, then it would seem that he had no
further authority to convoke a Supreme Council of Bishops or a meeting of the Asemblea Magna to sit in
judgment of them in accordance with the constitution of the church and, therefore, whatever action his
group might have taken leading to their ouster would necessarily be void and without effect. While
apparently the ouster of said bishops was made in accordance with the procedure laid down by the
constitution of the church wherein the four bishops were given an opportunity to be heard and defend
themselves, the validity of the action taken will necessarily have to be premised on the legality of the
forced resignation decreed against petitioner which is also one of the issues raised by petitioner in this
appeal. This will be taken up in the latter part of this decision. In the meantime, suffice it to state that the
Court of Appeals has found the ouster of Bishop De los Reyes and his companions to be without
justification in view of the conclusion it has reached that petitioner has been validly removed as Supreme
Bishop since January 22, 1946 and the Supreme Council of Bishops he had convened was illegal it being
composed merely of himself and the bishops he had consecrated without the sanction of the legitimate
members of the Supreme Council of the Iglesia Filipina Independiente. If this premise is correct, as will be
discussed elsewhere in this decision, then the ouster of Bishop De los Reyes and his companions is
unjustified and illegal.

II.
In this second assignment of error, petitioner claims that it was a mistake for the Court of Appeals to
consider Irineo C. de Vega as bishop and as member of the Supreme Council, the Asemblea Magna, and
the Asemblea General of the church and this claim is predicated upon the fact that Bishop Vega has
already severed his connection with the church by voluntary resignation because of his desire to engage
in the practice of law.
We are afraid that this assignment of error raises a question of fact which was already resolved by the
Court of Appeals against the petitioner. The only purpose of this assignment is to show that petitioner was
not properly ousted as Supreme Bishop and that Monsignors Bayaca and De los Reyes were not duly
elected as Supreme Bishops because Bishop Vega had no right to participate in the proceeding affecting
them, but in justifying his stand, petitioner brings into play his own assumption of facts which have already
been rejected by the Court of Appeals. Thus, in discussing the evidence submitted by both parties relative
to the alleged resignation of Vega as bishop of the Iglesia Filipina Independiente, the Court of Appeals
made the following findings:.
Testifying, appellant averred that it was the Secretary General Mons. De los Reyes, Jr., who
informed him that Vega did not want to continue as Bishop of the IFI and that he preferred to
engage in the practice of law (p. 188, tsn, First Trial), but Mons. De los Reyes, Jr., testified that
Bishop Vega did not actually resign but only asked for a vacation which the Supreme Council
granted, the reason for such vacation being that his parish church in Paco had been burned
during the war. And Bishop Vega himself testified that he never resigned as Bishop and that, in
spite of the letter Exhibit 45 cancelling his permit to solemnize marriages, he continued to
exercise the other powers and privileges of his position; and that the appellant wrote a letter to
the National Library for the cancellation of Vega's permit to solemnize marriages because of the
differences between the two or the grudge of appellant since the election in 1940 when the former
was the campaign manager of Bishop Castro who ran against the appellant for the position of
Supreme Bishop.
On the other hand, it appears that at the meeting on September 2, 1945 Vega was assigned or
appointed by the Consejo Supremo to the diocese of Tayabas, Marinduque, Batangas and
Mindoro (Exhibit M) and on October 18, 1945 the minutes of said meeting were duly approved by
the Supreme Council (Exhibit AA) and appellant, although present in both meetings, never
protested to such appointment of Bishop Vega.
We hold, therefore, that the alleged resignation of Vega or the voluntary relinquishment of his
position as Bishop, has not been established by clear and convincing evidence, and Error No. III
assigned was not committed by the trial court.".
Note that, after discussing the evidence in the manner above stated, the Court of Appeals held "that the
alleged resignation of Vega or the voluntary relinquishment of his position as Bishop, has not been
established by clear and convincing evidence", and this finding we cannot now disturb.
III
The third assignment of error refers to the finding of the Court of Appeals that Monsignors Apostol,
Evangelista, Mondala, Pasetas, Bergonia, Ramos and Elegado have not been validly consecrated as
bishops and therefore cannot be considered members of the Supreme Council, Asemblea Magna, and
Asemblea General of the church.
In this connection, the Court of Appeals found that the aforementioned seven individuals were
consecrated by petitioner without the approval of the Supreme Council and in violation of the constitution
of the church for, according to said court, "In fact one of the charges filed against the (petitioner) which

culminated in his forced resignation was the latter's having consecrated said bishops not only without the
consent or approval of the Consejo Supremo but also over its express objection as in the case of P.
Evangelista." And, in assailing this finding, petitioner merely makes the comment that the appointments of
these bishops is an ecclesiastical matter which cannot be revised by the civil courts. We have already
stated that while the civil courts will ordinarily leave ecclesiastical matters to church authorities, they may
however intervene when it is shown, as in this case, that they have acted outside the scope of their
authority or in a manner contrary to their organic law and rules (45 Am. Jur., 751,754). This assignment,
therefore, is without merit.
IV and V.
The fourth and fifth assignments of error read:.
IV. The Court of Appeals erred in not declaring that the so called Supreme Council and Asemblea
General that met on January 21 and 22, 1946, respectively, upon the call of Aguilar, were illegally
constituted, and that, therefore, their actuations were null and void, more particularly, the ouster
of the petitioner as Obispo Maximo decreed by them.
V. The Court of Appeals erred in holding that the Asemblea General and the Asemblea Magna
referred to and defined in the Church's constitution is one and the same body.
The fourth assignment of error is important because it calls for a determination of the validity of the ouster
of petitioner as Supreme Bishop of the Iglesia Filipina Independiente. It involves an inquiry into the
propriety of the meeting held by the Supreme Council of Bishops and Asemblea General on January 21,
and January 22,1946, respectively, upon the call of Bishop Aguilar. For the determination of the pertinent
issues, it is necessary to make a review of the facts leading to the forced resignation of petitioner as
Supreme Bishop as found by the Court of Appeals.
It appears that on December 1, 1945, Bishop Aguilar filed charges against petitioner as Supreme Bishop
which he outlined in detail in a letter he addressed to him on said date and which appears copied
verbatim in the decision of the Court of Appeals (Exhibit B). On December 4, 1945, Bishop Aguilar issued
a call for meeting of the Asemblea General to be held on January 22, 1946 (Exhibit D), and on January 2,
1946, he issued another call for a meeting of the Supreme Council to be held on January 21, 1946 for the
purpose of hearing and considering the charges contained in the aforesaid letter. Petitioner answered the
charges, through a counsel, in a written statement dated January 18, 1946 (Exhibit N) wherein he
challenged the authority of Bishop Aguilar to summon the council of bishops for the purpose of hearing
the charges and the authority of Bishop Remollino to attend the same on the ground that the two bishops
had already been expelled by him from the church. The Supreme Council of Bishops convened on
January 21, 1946 as scheduled and proceeded to deliberate on the charges against petitioner, and after
finding them proven and substantiated, it approved a decree ordering the forced resignation of petitioner
as Supreme Bishop of the church. The decree was submitted to the Asemblea Magna or Asemblea
General which convened on January 22, 1946. Petitioner did not attend this meeting but sent a printed
answer to the charges (Exhibit O). The assembly, after deliberating on the merits of the decree as well as
the reasons and explanations advanced in petitioner's answer, unanimously approved said decree and
immediately thereafter elected Bishop Gerardo Bayaca as Supreme Bishop in place of petitioner.
Petitioner claims that the meeting of the Supreme Council held on January 21, 1946 was illegal because
(1) it was called by Bishop Aguilar, an unauthorized person, who already ceased to be a bishop and
president of the Supreme Council by reason of his previous ouster, and (2) the bishops who were present
did not constitute a quorum. Likewise, petitioner assails the legality of the meeting of the Asemblea
General or Asemblea Magna held on January 22, 1946 for the reasons that (1) it was called by Bishop
Aguilar alone and not by the Supreme Council as provided for in the constitution, and (2) the persons who
attended said meeting did not constitute a quorum. Petitioner further contends that the Asemblea General
and the Asemblea Magna are two different bodies, their differences being, to wit: the Asemblea General is

called by the Supreme Council while the Asemblea Magna is called by the Obispo Maximo; the Asemblea
Magna is composed of all bishops, one priest from each diocese elected by the parish priests of the
same, and one layman from each diocese elected by the presidents of the parochial committee, while the
Asemblea General is composed of all bishops, parish priests, and presidents of the parochial committees;
and that the sole function of the Asemblea General is to try to the Supreme Bishop, while the Asemblea
Magna is called upon to elect the Supreme Bishop and to amend the constitution of the church.
The claim that Bishop Aguilar had no authority to convene the Supreme Council by reason of his previous
ouster cannot now be sustained in view of our finding that said ouster was made in violation of the
constitution of the church. The same thing may be said with regard to the claim that Bishop Vega had no
right to participate in the meeting because of his voluntary separation from the church. It is only important
to note in this connection that in the session of the Supreme Council held on September 2,1945, (Exhibit
M), Bishop Aguilar was elected president of said council and his designation has not been disputed by
petitioner. It was in this capacity that he issued the call for a meeting of the Asemblea General on January
22, 1946 and the call for a meeting of the Supreme Council on January 21, 1946.
As regards the existence of a quorum in the meeting held by the Supreme Council of January 21, 1946,
the following is the finding of the Court of Appeals: "After examining the whole record, we believe, and so
hold, that on January 21 and 22, 1946 there were only thirteen legitimate bishops of the IFI, namely:
Fonacier, Jamias (J.), Jamias (M.), Gaerlan, Ruiz, De los Reyes, Jr. Bayaca, Kijano, Tablante, Felipe,
Aguilar, Remollino and Vega. Buyser is not included because he was ill and never heard of. Seven out of
these 13 attended the meeting of the Consejo Supremo held on January 21, 1946, namely: De los Reyes,
Jr., Bayaca, Kijano, Tablante, Aguilar, Remollino and Vega. It is, therefore, beyond question that there was
a quorum present in that session." This finding we cannot now disturb.
On the question whether or not the Asemblea General and the Asemblea Magna are one and the same
body, the Court of Appeals, after examining all the provisions of the constitution of the church (Exhibits K
and L), found that the finding of the trial court in the affirmative sense was correct making its own the
reasons advanced by the said trial court in support of said conclusion. This is now assailed by petitioner
as erroneous because it ignored the amendment introduced in the original provision of the constitution as
regards the composition of the Asemblea Magna.
While apparently the trial court overlooked the amendment pointed out by the petitioner regarding the
composition of the Asemblea Magna, we do not however consider material the nature of the change
made as to effect the substance of the finding of the trial court it appearing that the change is merely
nominal and does not make any reference to the composition of the Asemblea General. The ambiguity in
the composition of the latter body is still there for it nowhere appears in the constitution any definition or
explanation as regards its composition in the same manner as it does with regard to the Asemblea
Magna. It is perhaps for this reason that the authorities of the church have involved themselves in a
confusion as to the real body that should be called upon to act on the different problems of the church
which accounts for their differences of opinion as to whether said two bodies are really one and the same.
As the situation now stands, we do not feel justified in nullifying the actuation of the assembly called by
Bishop Aguilar in his capacity as President of the Supreme Council of Bishops simply because it was
called Asemblea Magna and not Asemblea General as now pretended by petitioner.
The legality of the meeting of the Asemblea Magna held on January 22, 1946 is also assailed because it
was called by Bishop Aguilar alone and not by the Supreme Council of Bishops as a body as provided for
in the constitution. While there is some merit in this contention, it cannot, however, have the effect of
nullifying the actuation of said body for this reason alone considering the other factors that had
intervened, namely: that the meeting was called by Bishop Aguilar in his capacity as President of the
Supreme Council; that this body actually met in pursuance of that call and took action on the charges
referred to it by Bishop Aguilar, and that the action taken by the council was submitted to the Asemblea
General which the council well knew was to convene on January 22, 1946. All these acts of the council
have the effect of ratifying the call made by Bishop Aguilar.

Petitioner also argues that there was no quorum in the meeting of the Asemblea General held on January
22,1946 because of the thirty-one (31) person present thereat, only nineteen (19) were qualified to attend
it because the other twelve (12) were neither bishops nor parish priests, nor presidents of local
committees. This issue was also resolved by the Court of Appeals in the affirmative sense. The finding of
the court on this matter is as follows:.
Pursuant to the Reglas Constitucionales the Asemblea Magna is composed of all the bishops,
and one parish priest delegate and one layman delegate from each diocese. Accordingly, the total
numbers of the members allowed to attend the Asemblea Magna is equal to the number of the
dioceses multiplied by three. To find out how many delegates should be present in the session of
the Asemblea Magna on January 22, 1946, the number of dioceses into which the IFI was then
divided should be ascertained. According to the minutes of the meeting of September 2, 1945
Exhibit M) there were sixteen dioceses, two of which were vacant. In the minutes (Exhibit 12) of
the meeting of the Asemblea Magna, formed by the faction of the appellant, on September 1,
1946 only fifteen dioceses were listed. The total number of members or delegates allowed to
attend the Asemblea Magna on January 22, 1946, was, therefore, (48.) Only twenty-five of them
were needed to constitute a quorum. Since there were thirty-one members or delegates present
in that meeting, it is beyond question that a quorum was present.".
As a corollary to the above findings, the Court of Appeals held that the Supreme Council and the
Asemblea Magna that met on January 21, and January 22, 1946 respectively, were legally constituted
and that the forced resignation and ouster of petitioner taken therein and the designation of Bishop
Bayaca as Supreme Bishop, conducted on January 22, 1946, are valid. These findings, which involve
questions of fact, cannot now be looked into, and, therefore, should be affirmed.
VI and VII.
The next error assigned by petitioner refers to the legality of the election of Bishop De los Reyes, Jr., as
Supreme Bishop of the Iglesia Filipina Independiente.
It appears that on September 1, 1946, upon the call made by Mons. Bayaca as incumbent Supreme
Bishop, the Asemblea Magna held a meeting and elected Bishop Isabelo de los Reyes, Jr. as his
successor. This election is now assailed on the ground that Mons. Bayaca had no authority to issue the
call as he was not legally elected Supreme Bishop and had been ousted as member of the church by the
Fonacier faction, and because there was no quorum present in that meeting.
With regard to the first ground, we have already seen that the election of Mons. Bayaca was found to be
valid and his ouster by the Fonacier faction null and void so that it cannot be said that he acted outside
the scope of his authority in calling the meeting in question. And with regard to the question of quorum,
the Court of Appeals found that there was, and this finding cannot now be looked into.
Petitioner next takes up the legality of the election of Bishop Jamias as Supreme Bishop of the church
contending that the Court of Appeals committed an error in declaring said election invalid and without
effect.
On this point, the evidence shows that petitioner Fonacier, calling himself as Supreme Bishop of the
Iglesia Filipina Independiente, issued a call to all those bishops and rebels belonging to his faction for a
meeting to be held by the Asemblea Magna on September 1, 1946 for the election of his successor, and it
was in that meeting where Bishop Jamias was elected to take his place as Supreme Bishop; but such
election was found by the Court of Appeals to be illegal because, "It has been conducted not by a quorum
of qualified and legitimate members of the IFI but by rebels thereof who were not authorized to organize
the so-called Asemblea Magna", and so it concluded that Mons. Juan Jamias was not legally elected as
Supreme Bishop of said church. This finding also involves a question of fact which we cannot now look
into.

IX, X, XI, and XII.


Finally petitioner contends that the Court of Appeals erred:.
IX. In holding that the abandonment of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by petitioner are unquestionably ecclesiastical matters
which are outside the province of the civil courts.
X. In holding that the new declaration of faith and the abandonment of the constitution of the
church were legally and validly adopted by the duly constituted Consejo Supremo and Asemblea
Magna composed of legitimate members of the IFI headed by responded Isabelo de los Reyes,
Jr., and duly empowered by the reglas constitucionales (Exhibits K, and L,) to take such actions.
XI. In holding that the consecration of Reyes, Bayaca, and Aguilar as bishops by the American
Protestant Episcopal Church was merely for the purpose of conferring upon them apostolic
succession and there is no factual basis for their alleged abjuration or separation from the IFI.
XII. In not holding that the respondent Isabelo de los Reyes, Jr., and Gerardo M. Bayaca, having
abandoned the faith, fundamental doctrines and practices, as well as the constitution of the
Iglesia Filipina Independiente, and having adhered to those of others, have automatically ceased
to belong to said church, and consequently, have no personality to maintain the present action."
(9th, 10th, 11th, and 12th assignments of error.).
The issues raised in the foregoing assignments of error were squarely met by the Court of Appeals whose
decision on the matter, because of its lucidity and the interesting discussion made therein concerning the
importance of the alleged abandonment of the Constitution, restatement of articles of religion, and
abandonment of faith or abjuration on the part of Bishop De los Reyes, Bayaca and Aguilar in relation to
the tenets of the original constitution of the church and the conclusions it has drawn in line with the
authorities cited in support thereof, we can do no better than to quote in toto hereunder:.
Sometime in April 1947, Bishops De los Reyes, Jr., Gerardo Bayaca and Manuel Aguilar, upon
their petition, were consecrated as bishops of the Protestant Episcopal Church of the United
States. On August 5, 1947, the Obispo Maximo, the Supreme Council, the Asemblea Magna of
appellee's faction amended the constitution of the IFI (Exhibit 55) and restated its articles of
religion (Exhibit 54).
On January 10, 1948, the appellant amended his answer by further alleging that: "in or about the
month of August, 1947, plaintiff Isabelo de los Reyes, Jr. as alleged Obispo Maximo of the
plaintiff's Iglesia Filipina Independiente, formally joined the Protestant Episcopal Church of
America, a duly existing religious corporation, and therefore, has ceased to be a member of the
Iglesia Filipina Independiente, and has no legal capacity to sue, allegedly as Obispo Maximo of
the last mentioned church.".
On this point the court below took the view that the alleged doctrinal changes, abandonment of
faith and acts of abjuration complained of are purely ecclesiastical matters and that since Bishop
De los Reyes, Jr. allowed himself to be consecrated bishop of the Protestant Episcopal Church
under the conviction that he was so authorized by the Supreme Council of the IFI and with the
condition that he would not be bound by any obligation to the Episcopal Church, his consecration
will not affect his affiliation as member of the IFI unless the latter takes action against him and
expels him, if found guilty.
Appellant now claims that the trial court committed the first error assigned because it should have
held that appellees De los Reyes, Jr. and Bayaca, having abandoned the faith, fundamental
doctrines and practices, as well as the Constitution of the IFI, and having adhered to those of

others, have automatically ceased to belong to said church, and consequently, have no
personality to maintain the present action.
The arguments of appellant may be summarized as follows:.
(1) that the civil courts have jurisdiction to revise decisions on ecclesiastical matters where it is
necessary to do so for the purpose of settling question of civil and property rights or when
property rights are affected; (2) that the amendment of the constitution of the IFI approved in
August, 1947, were illegal and ineffective, inasmuch as they were not approved by the duly
constituted authorities of the church; (3) that said amendments introduced radical and substantial
changes in the profession of faith and fundamental doctrines and practices of the church; and (4)
that in view of said amendments and subsequent consecration of plaintiffs-appellees as bishops
by the Protestant Church of the United States they have lost their rights to claim any participation
in the properties and to use the name of the IFI.
The position of appellant is that appellees having taken part in adopting and sanctioning
amendments to the church's constitution which radically and substantially changed the profession
of faith and fundamental doctrines and practices of the church, his faction cannot now be
compelled to deliver to the appellees whatever property of the church are in its hands particularly
because said faction continues to be loyal and faithful to the original doctrines and practices of
said church. In support of this stand appellant cites several authorities (Watson vs. Jones, 20 Led. 666; 45 Am. Jur., 764, 765; Reorganized Church of Jesus Christ, L.D.S. vs. Church of Christ,
60 Fed. 937; Paraaque Methodist Episcopal Church, et al. vs. Methodist Episcopal Church, et
al., 38 O.G. 534, C.J. 71) Holding that in case of schism within a church its properties should
remain with the faction that continues adhering to the original doctrines and practices of the
church irrespective of whether it constitutes a majority or a minority of the members thereof. .
It is to be recalled that the forced resignation of appellant as Obispo Maximo of the IFI was
ordered on January 22, 1946 and on the same day, appellee, Mons. Gerardo Bayaca was elected
as Obispo Maximo to replace him. On January 23, 1946, appellant was notified of his removal
and required to surrender and deliver all personal properties of the church still in his possession
or under his control. Instead of doing so, he with a few members of the Consejo Supremo, with
the help of some members of the laity, because of dissatisfaction with the action of the majority in
removing the appellant as Supreme Bishop, erected themselves into a new organization formed a
rump Consejo Supremo and a rump Asemblea Magna and claiming to speak for the church,
decreed the ouster of Mons. Bayaca, De los Reyes, Jr., Kijano and Tablante on January 30, 1946.
On February 9, 1946 this action was commenced by Mons. Bayaca and the IFI seeking to compel
appellant to render an accounting of his management of the properties of the church and deliver
the same to the plaintiffs. The alleged doctrinal changes took place in August, 1947. It is thus
clear that the present action sprang out a mere division not a schism in the church. Schism is a
"division or separation in a church or denomination of Christians, occasioned by diversity of
opinions, breach of unity among people of the same religious faith (45 Am. Jur., 775), a division
occasioned by diversity of opinion on religious subjects (38 Words and Phrases, Perm. Ed. 303),
while division means "no more than a separation of the society into two parts, without any change
of faith or ulterior relations" (45 Am. Jur., p. 775). Such being the case, the doctrinal changes and
abandonment of faith are irrelevant and immaterial in the case at bar and the invoked rule of
doctrinal adherence does not apply.
But assuming that there was a real schism in the IFI, the situation, under the facts of record,
would not help appellant's contention because pursuant to the ruling in the case of Watson vs.
Jones, 20 Law Ed., pp. 674-676, cited by both parties, the use of properties of a "religious
congregation" in case of schism, "is controlled by the numerical majority of the members, such
ruling admitting of no inquiry into the existing religious opinions of those who comprise the legal
and regular organization.".

The law is stated in that case as follows:.


The question which have come before the civil courts concerning the rights to property
held by ecclesiastical bodies, may as far as we have been able to examine them, be
profitably classified under three general heads, which of course do not include cases
governed by considerations applicable to a church established and supported by law as
the religion of the state.
1. That first of these is when the property which is the subject of controversy has been, by
the deed of will of the donor, or other instrument by which the property is held, by the
express terms of the instrument devoted to the teaching, support or spread of some
specific form of religious doctrine or belief.
2. The second is when the property is held by a religious congregation which, by the
nature of its organization, is strictly independent of other ecclesiastical associations, and
so far as church government is concerned owns no fealty or obligation to any higher
authority.
3. The third is where the religious congregation or ecclesiastical body holding the
property is but a subordinate member of some general church organization in which there
are superior ecclesiastical tribunals with a general and ultimate power of control more or
less complete in some supreme judicatory over the whole membership of that general
organization.
The second class of cases which we have described has reference to the case of a
church of a strictly congregational or independent organization, governed solely within
itself, either by a majority of its members or by such other local organism as it may have
instituted for the purpose of ecclesiastical government; and to property held by such a
church, either by way of purchase or donation, with no other specific trust attached to it in
the hands of the church than that it is for the use of that congregation as a religious
society.
In such cases, where there is a schism which leads to a separation into distinct and
conflicting bodies, the rights of such bodies to the use of the property must be determined
by ordinary principles which govern voluntary associations. If the principle of government
in such cases is that the majority rules, then the numerical majority of members must
control the right to the use of the property. If there be within the congregation officers in
whom are vested the powers of such control, then those who adhere in the
acknowledged organism by which the body is governed are entitled to the use of the
property. The minority in choosing to separate themselves into a distinct body, and
refusing to recognize the authority of the government body, can claim no rights in the
property from the fact that they had once been members of the church or congregation.
This ruling admits of no inquiry into the existing religious opinions of those who comprise
the legal or regular organization; for, if such was permitted, a very small minority, without
any officers of the church among them, might be found to be the only faithful supporters
of the religious dogmas of the founders of the church. There being no such trust imposed
upon the property when purchased or given, the court will not imply one for the purpose
of expelling from its use those who by regular succession and order constitute the
church, because they may have changed in some respect their views of religious truth.
Of the cases in which this doctrine is applied no better representative can be found than that of
Shannon vs. Nelson, 18 Vt. 511, which asserts this doctrine in case where a legacy was left to the
Associate congregation of Ryegate, the interest whereof was to be annually paid to their minister
forever. In that case, though the Ryegate congregation was one of a number of Presbyterian

churches connected with the general Presbyterian body at large, the court held that the only
inquiry was whether they have a minister chosen and appointed by the majority and regularly
ordained over the society, agreeably to the usage of that denomination. And though we may be of
opinion that the doctrine of that case needs modification, so far as it discussed the relation of the
Ryegate congregation to the other judicatures of the body to which it belongs, it certainly lays
down the principle correctly if that congregation was to be treated as an independent one."
(Watson vs. Jones, 20 Law Ed., pp. 674-676).
It goes without saying that the properties of the IFI are held by a religious congregation; that said
church comes under the second class described in the above-quoted decision; and that the
numerical majority is on the side of the faction of the appellees, because 7 out of the 13 bishops
of the church went to them and according to the statement of the Director of National Library,
issued on May 22, 1947, appellee's faction was composed of 19 bishops and 252 priests whereas
appellant's faction had only 10 bishops and 40 priests, and on January 22, 1948 its bishops and
priests were 293 as against 64 of appellant's group (Exhibit 25).
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 who allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts (45 Am. Jur. 748-752,755).
It appears that the main complaint of the appellant is that the appellees upon adopting their new
declaration of faith and the amendments of the constitution of the church, as appears in Exhibits
54 and 55, they have repudiated the Oficio Divino which is the definite statement of the doctrines
and rites of the IFI and the official book of the church. But appellant admits that said Oficio Divino
"does not pretend to close the way for any change which the progress of religious science may in
the course of time show to be true and acceptable." (Appellant's Memorandum, pp. 28-29).
Indeed, the Oficio Divino itself says that it was an `ensayo' and that its purpose was merely to
give definite forms to the then accepted doctrines of the church without however closing the doors
to, or making impossible any future changes that the progress of religious science might demand.
Thus the note on page 221 of the Oficio Divino (Exhibit 57) reads as follows:.
Con la publicacion del presente libro, damos formas definitivasa nuestras doctrinas, pero
sin cerrar jamas el camino del progreso de la ciencia religiosa como si pretendieramos
pasar por dogmas el resultado de nuestras investigaciones.
It cannot be gainsaid that since the establishment of the IFI in 1902 there have been some
changes and revisions of some of its tenets and articles of faith. This is quite understandable in a
church like the Aglipayan Church which is not an ancient one and has not had the opportunity to
make any of its doctrines and tenets clear and dogmatic. And it is but natural and fitting that new
doctrines in religious matters be subjected to investigation and revision or even rejection in
harmony with the advancement of religious science.
Appellants contends however, that any such changes should be adopted by the church
(Memorandum supra). Without resolving whether the amendments in question (Exhibits 54 and
55) constitute repudiation of faith or involve wide departure from the fundamental and
characteristic beliefs or policy of the IFI, we believe, and so hold, that the same were legally and
validly adopted by the duly constituted Consejo Supremo and Asemblea Magna composed of
legitimate members of the IFI, headed by Mons. Isabelo de los Reyes, Jr. and duly empowered
by the Reglas Constitucionales, as amended (Exhibits K and L), to take such action. Appellant's
insistence that Bishops Aguilar, Remollino, De los Reyes, Jr., Bayaca, Kijano and Tablante who
took part in the adoption of said amendments having been ousted by appellant's faction were not
authorized to act for the IFI, is untenable. We have already discussed and held somewhere in this
opinion that the alleged ouster of the aforementioned bishops was null and void and the election

of Bishop De los Reyes, Jr., as Obispo Maximo was valid and we did recognize him as the sole
and legitimate head of the IFI.
Anent the consecrations of Mons. De los Reyes, Jr., Bayaca, and Aguilar as bishops of the
American Protestant Episcopal Church, we find that the preponderating weight of evidence
reveals, as questions of fact, that the purpose of said consecrations was merely the conferring of
apostolic succession upon said bishops; that the American Episcopal Church did not acquire any
authority, ecclesiastical or otherwise over the IFI or over the bishops thus consecrated; and that
the latter were not required to take oath nor were they accepted as bishops of the aforesaid
episcopal church by virtue of their consecrations, according to the uncontradicted testimony of
Bishop Norman Spencer Binstead, of the American Episcopal Church, who consecrated them
and of Bishops Bayaca, Aguilar and De los Reyes themselves. Hence, there is no factual basis
for the alleged abjuration or separation from the IFI of said bishops and, consequently, appellees
Isabelo de los Reyes, Jr. and Gerardo M. Bayaca are still members of the IFI, and do not lack
personality to maintain the present action.".
We can hardly add to the above findings to which we agree. We wish only to make the following
observations. The complaint in this case was filed on February 9, 1946 raising as the main issue whether
petitioner should still be regarded as legitimate Supreme Bishop of the Iglesia Filipina Independiente or
whether he has been properly replaced by Bishop Gerardo Bayaca. This has been recognized by
petitioner himself who, in the brief he submitted to the Court of Appeals, maintained that the only issue
was, "Who is the true and legitimate Obispo Maximo of the IFI?" The alleged abjuration of respondent De
los Reyes and Bishops Bayaca and Aguilar and the alleged restatement of articles of religion and
doctrinal differences between the new and original constitutions of the church were never alleged directly
or indirectly in the pleadings of the parties. These questions were raised for the first time on January 10,
1948 when petitioner filed a supplementary answer alleging that on August, 1947, the respondent
"formally joined the Protestant Episcopal Church of America." The alleged doctrinal changes and
abjuration took place therefore after this case was filed in court, and after the division of the church into
two groups had occurred and consequently, they could not have been the cause of the division. Under
these circumstances, it would seem clear that the allegation regarding the alleged changes in doctrinal
matters or in matters of faith incorporated in the constitutions of the church are entirely irrelevant in the
present case. And, on this matter, this observation of the Court of Appeals comes in very fittingly: "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 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." (45 Am. Jur., 748-752, 755.) To this we agree.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

[G.R. No. 124382. August 16, 1999]

PASTOR DIONISIO V. AUSTRIA, petitioner, vs. HON. NATIONAL LABOR RELATIONS COMMISSION
(Fourth Division), CEBU CITY, CENTRAL PHILIPPINE UNION MISSION CORPORATION OF
THE SEVENTH-DAY ADVENTIST, ELDER HECTOR V. GAYARES, PASTORS REUBEN
MORALDE, OSCAR L. ALOLOR, WILLIAM U. DONATO, JOEL WALES, ELY SACAY, GIDEON
BUHAT, ISACHAR GARSULA, ELISEO DOBLE, PROFIRIO BALACY, DAVID RODRIGO,
LORETO MAYPA, MR. RUFO GASAPO, MR. EUFRONIO IBESATE, MRS. TESSIE BALACY,
MR. ZOSIMO KARA-AN, and MR. ELEUTERIO LOBITANA, respondents.

DECISION
KAPUNAN, J.:
Subject to the instant petition for certiorari under Rule 65 of the Rules of Court is the Resolution [1]of
public respondent National Labor Relations Commission (the NLRC), rendered on 23 January 1996, in
NLRC Case No. V-0120-93, entitled Pastor Dionisio V. Austria vs. Central Philippine Union Mission
Corporation of Seventh Day Adventists, et. al., which dismissed the case for illegal dismissal filed by the
petitioner against private respondents for lack of jurisdiction.
Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day Adventists
(hereinafter referred to as the SDA) is a religious corporation duly organized and existing under
Philippine law and is represented in this case by the other private respondents, officers of the
SDA. Petitioner, on the other hand, was a Pastor of the SDA until 31 October 1991, when his services
were terminated.
The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for twenty eight (28)
years from 1963 to 1991.[2] He began his work with the SDA on 15 July 1963 as a literature evangelist,
selling literature of the SDA over the island of Negros. From then on, petitioner worked his way up the
ladder and got promoted several times. In January, 1968, petitioner became the Assistant Publishing
Director in the West Visayan Mission of the SDA. In July, 1972, he was elevated to the position of Pastor
in the West Visayan Mission covering the island of Panay, and the provinces of Romblon and
Guimaras. Petitioner held the same position up to 1988. Finally, in 1989, petitioner was promoted as
District Pastor of the Negros Mission of the SDA and was assigned at Sagay, Balintawak and Toboso,
Negros Occidental, with twelve (12) churches under his jurisdiction. In January, 1991, petitioner was
transferred to Bacolod City. He held the position of district pastor until his services were terminated on 31
October 1991.
On various occasions from August up to October, 1991, petitioner received several
communications[3] from Mr. Eufronio Ibesate, the treasurer of the Negros Mission asking him to admit
accountability and responsibility for the church tithes and offerings collected by his wife, Mrs. Thelma
Austria, in his district which amounted to P15,078.10, and to remit the same to the Negros Mission.
In his written explanation dated 11 October 1991, [4] petitioner reasoned out that he should not be
made accountable for the unremitted collections since it was private respondents Pastor Gideon Buhat
and Mr. Eufronio Ibesate who authorized his wife to collect the tithes and offerings since he was very sick
to do the collecting at that time.
Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of Pastor Buhat,
the president of the Negros Mission. During said call, petitioner tried to persuade Pastor Buhat to
convene the Executive Committee for the purpose of settling the dispute between him and the private
respondent, Pastor David Rodrigo. The dispute between Pastor Rodrigo and petitioner arose from an
incident in which petitioner assisted his friend, Danny Diamada, to collect from Pastor Rodrigo the unpaid
balance for the repair of the latters motor vehicle which he failed to pay to Diamada. [5] Due to the
assistance of petitioner in collecting Pastor Rodrigos debt, the latter harbored ill-feelings against
petitioner. When news reached petitioner that Pastor Rodrigo was about to file a complaint against him
with the Negros Mission, he immediately proceeded to the office of Pastor Buhat on the date
abovementioned and asked the latter to convene the Executive Committee. Pastor Buhat denied the
request of petitioner since some committee members were out of town and there was no
quorum. Thereafter, the two exchanged heated arguments. Petitioner then left the office of Pastor
Buhat. While on his way out, petitioner overheard Pastor Buhat saying, Pastor daw inisog na ina iya
(Pastor you are talking tough).[6] Irked by such remark, petitioner returned to the office of Pastor Buhat,
and tried to overturn the latters table, though unsuccessfully, since it was heavy. Thereafter, petitioner
banged the attache case of Pastor Buhat on the table, scattered the books in his office, and threw the
phone.[7] Fortunately, private respondents Pastors Yonilo Leopoldo and Claudio Montao were around
and they pacified both Pastor Buhat and petitioner.

On 17 October 1991, petitioner received a letter [8] inviting him and his wife to attend the Executive
Committee meeting at the Negros Mission Conference Room on 21 October 1991, at nine in the
morning. To be discussed in the meeting were the non-remittance of church collection and the events
that transpired on 16 October 1991. A fact-finding committee was created to investigate petitioner. For
two (2) days, from October 21 and 22, the fact-finding committee conducted an investigation of
petitioner. Sensing that the result of the investigation might be one-sided, petitioner immediately wrote
Pastor Rueben Moralde, president of the SDA and chairman of the fact-finding committee, requesting that
certain members of the fact-finding committee be excluded in the investigation and resolution of the case.
[9]
Out of the six (6) members requested to inhibit themselves from the investigation and decision-making,
only two (2) were actually excluded, namely: Pastor Buhat and Pastor Rodrigo. Subsequently, on 29
October 1991, petitioner received a letter of dismissal [10] citing misappropriation of denominational funds,
willful breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an
offense against the person of employers duly authorized representative, as grounds for the termination of
his services.
Reacting against the adverse decision of the SDA, petitioner filed a complaint [11] on 14 November
1991, before the Labor Arbiter for illegal dismissal against the SDA and its officers and prayed for
reinstatement with backwages and benefits, moral and exemplary damages and other labor law benefits.
On 15 February 1993, Labor Arbiter Cesar D. Sideo rendered a decision in favor of petitioner, the
dispositive portion of which reads thus:
WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE UNION MISSION
CORPORATION OF THE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and its officers, respondents
herein, are hereby ordered to immediately reinstate complainant Pastor Dionisio Austria to his former
position as Pastor of Brgy. Taculing, Progreso and Banago, Bacolod City, without loss of seniority and
other rights and backwages in the amount of ONE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED
THIRTY PESOS (P115,830.00) without deductions and qualificatioons.
Respondent CPUMCSDA is further ordered to pay complainant the following:
A.

13th month pay

B.

Allowance

C.

Service Incentive
Leave Pay

D.

P 4,770.83

Moral Damages
E.

F.

P21,060.00

Exemplary
Damages

Attorneys Fee

P 3,461.85

P50,000.00

P25,000.00
P22,012.27

SO ORDERED.[12]
The SDA, through its officers, appealed the decision of the Labor Arbiter to the National Labor
Relations Commission, Fourth Division, Cebu City. In a decision, dated 26 August 1994, the NLRC
vacated the findings of the Labor Arbiter. The decretal portion of the NLRC decision states:
WHEREFORE, the Decision appealed from is hereby VACATED and a new one ENTERED dismissing
this case for want of merit.

SO ORDERED.[13]
Petitioner filed a motion for reconsideration of the above-named decision. On 18 July 1995, the
NLRC issued a Resolution reversing its original decision. The dispositive portion of the resolution reads:
WHEREFORE, premises considered, Our decision dated August 26, 1994 is VACATED and the decision
of the Labor Arbiter dated February 15, 1993 is REINSTATED.
SO ORDERED.[14]
In view of the reversal of the original decision of the NLRC, the SDA filed a motion for
reconsideration of the above resolution. Notable in the motion for reconsideration filed by private
respondents is their invocation, for the first time on appeal, that the Labor Arbiter has no jurisdiction over
the complaint filed by petitioner due to the constitutional provision on the separation of church and state
since the case allegedly involved and ecclesiastical affair to which the State cannot interfere.
The NLRC, without ruling on the merits of the case, reversed itself once again, sustained the
argument posed by private respondents and, accordingly, dismissed the complaint of petitioner. The
dispositive portion of the NLRC resolution dated 23 January 1996, subject of the present petition, is as
follows:
WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is hereby
granted. Accordingly, this case is hereby DISMISSED for lack of jurisdiction.
SO ORDERED.[15]
Hence, the recourse to this Court by petitioner.
After the filing of the petition, the Court ordered the Office of the Solicitor General (the OSG) to file
its comment on behalf of public respondent NLRC. Interestingly, the OSG filed a manifestation and
motion in lieu of comment[16] setting forth its stand that it cannot sustain the resolution of the NLRC. In its
manifestation, the OSG submits that the termination of petitioner of his employment may be questioned
before the NLRC as the same is secular in nature, not ecclesiastical. After the submission of memoranda
of all the parties, the case was submitted for decision.
The issues to be resolved in this petition are:
1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed
by petitioner against the SDA;
2) Whether or not the termination of the services of petitioner is an ecclesiastical affair, and, as
such, involves the separation of church and state; and
3) Whether or not such termination is valid.
The first two issues shall be resolved jointly, since they are related.
Private respondents contend that by virtue of the doctrine of separation of church and state, the
Labor Arbiter and the NLRC have no jurisdiction to entertain the complaint filed by petitioner. Since the
matter at bar allegedly involves the discipline of a religious minister, it is to be considered a purely
ecclesiastical affair to which the State has no right to interfere.
The contention of private respondents deserves scant consideration. The principle of separation of
church and state finds no application in this case.
The rationale of the principle of the separation of church and state is summed up in the familiar
saying, Strong fences make good neighbors. [17] The idea advocated by this principle is to delineate the
boundaries between the two institutions and thus avoid encroachments by one against the other because

of a misunderstanding of the limits of their respective exclusive jurisdictions. [18] The demarcation line calls
on the entities to render therefore unto Ceasar the things that are Ceasars and unto God the things that
are Gods.[19] While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is
likewise barred from meddling in purely secular matters. [20]
The case at bar does not concern an ecclesiastical or purely religious affair as to bar the State from
taking cognizance of the same. An ecclesiastical affair is one that concerns doctrine, creed, or form or
worship of the church, or the adoption and enforcement within a religious association of needful laws and
regulations for the government of the membership, and the power of excluding from such associations
those deemed unworthy of membership.[21] Based on this definition, an ecclesiastical affair involves the
relationship between the church and its members and relate to matters of faith, religious doctrines,
worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical
affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities with which attached religious significance. The
case at bar does not even remotely concern any of the abovecited examples. While the matter at hand
relates to the church and its religious minister it does not ipso facto give the case a religious
significance. Simply stated, what is involved here is the relationship of the church as an employer and the
minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith,
worship or doctrines of the church. In this case, petitioner was not excommunicated or expelled from the
membership of the SDA but was terminated from employment. Indeed, the matter of terminating an
employee, which is purely secular in nature, is different from the ecclesiastical act of expelling a member
from the religious congregation.
As pointed out by the OSG in its memorandum, the grounds invoked for petitioners dismissal,
namely: misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and
habitual neglect of duties and commission of an offense against the person of his employers duly
authorize representative, are all based on Article 282 of the Labor Code which enumerates the just
causes for termination of employment. [22] By this alone, it is palpable that the reason for petitioners
dismissal from the service is not religious in nature. Coupled with this is the act of the SDA in furnishing
NLRC with a copy of petitioners letter of termination. As aptly stated by the OSG, this again is an
eloquent admission by private respondents that NLRC has jurisdiction over the case. Aside from these,
SDA admitted in a certification [23] issued by its officer, Mr. Ibesate, that petitioner has been its employee
for twenty-eight (28) years. SDA even registered petitioner with the Social Security System (SSS) as its
employee. As a matter of fact, the workers records of petitioner have been submitted by private
respondents as part of their exhibits. From all of these it is clear that when the SDA terminated the
services of petitioner, it was merely exercising its management prerogative to fire an employee which it
believes to be unfit for the job. As such, the State, through the Labor Arbiter and the NLRC, has the right
to take cognizance of the case and to determine whether the SDA, as employer, rightfully exercised its
management prerogative to dismiss an employee. This is in consonance with the mandate of the
Constitution to afford full protection to labor.
Under the Labor Code, the provision which governs the dismissal of employees, is comprehensive
enough to include religious corporations, such as the SDA, in its coverage. Article 278 of the Labor Code
on post-employment states that the provisions of this Title shall apply to all establishments or
undertakings, whether for profit or not. Obviously, the cited article does not make any exception in favor
of a religious corporation. This is made more evident by the fact that the Rules Implementing the Labor
Code, particularly, Section 1, Rule 1, Book VI on the Termination of Employment and Retirement,
categorically includes religious institutions in the coverage of the law, to wit:
Section 1. Coverage. This Rule shall apply to all establishments and undertakings, whether operated for
profit or not, including educational, medical, charitable and religious institutions and organizations, in
cases of regular employment with the exception of the Government and its political subdivisions including
government-owned or controlled corporations.[24]
With this clear mandate, the SDA cannot hide behind the mantle of protection of the doctrine of
separation of church and state to avoid its responsibilities as an employer under the Labor Code.

Finally, as correctly pointed out by petitioner, private respondents are estopped from raising the issue
of lack of jurisdiction for the first time on appeal. It is already too late in the day for private respondents to
question the jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully participated in the
trials and hearings of the case from start to finish. The Court has already ruled that the active
participation of a party against whom the action was brought, coupled with his failure to object to the
jurisdiction of the court or quasi-judicial body where the action is pending, is tantamount to an invocation
of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later
on impugning the court or bodys jurisdiction. [25] Thus, the active participation of private respondents in the
proceedings before the Labor Arbiter and the NLRC mooted the question on jurisdiction.
The jurisdictional question now settled, we shall now proceed to determine whether the dismissal of
petitioner was valid.
At the outset, we note that as a general rule, findings of fact of administrative bodies like the NLRC
are binding upon this Court. A review of such findings is justified, however, in instances when the findings
of the NLRC differ from those of the labor arbiter, as in this case. [26] When the findings of NLRC do not
agree with those of the Labor Arbiter, this Court must of necessity review the records to determine which
findings should be preferred as more comformable to the evidentiary facts. [27]
We turn now to the crux of the matter. In termination cases, the settled rule is that the burden of
proving that the termination was for a valid or authorized cause rests on the employer. [28] Thus, private
respondents must not merely rely on the weaknesses of petitioners evidence but must stand on the
merits of their own defense.
The issue being the legality of petitioners dismissal, the same must be measured against the
requisites for a valid dismissal, namely: (a) the employee must be afforded due process, i.e., he must be
given an opportunity to be heard and to defend himself, and; (b) the dismissal must be for a valid cause
as provided in Article 282 of the Labor Code. [29] Without the concurrence of this twin requirements, the
termination would, in the eyes of the law, be illegal. [30]
Before the services of an employee can be validly terminated, Article 277 (b) of the Labor Code and
Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require the employer to
furnish the employee with two (2) written notices, to wit: (a) a written notice served on the employee
specifying the ground or grounds for termination, and giving to said employee reasonable opportunity
within which to explain his side; and, (b) a written notice of termination served on the employee indicating
that upon due consideration of all the circumstances, grounds have been established to justify his
termination.
The first notice, which may be considered as the proper charge, serves to apprise the employee of
the particular acts or omissions for which his dismissal is sought. [31] The second notice on the other hand
seeks to inform the employee of the employers decision to dismiss him. [32] This decision, however, must
come only after the employee is given a reasonable period from receipt of the first notice within which to
answer the charge and ample opportunity to be heard and defend himself with the assistance of a
representative, if he so desires. [33] This is in consonance with the express provision of the law on the
protection to labor and the broader dictates of procedural due process. [34] Non-compliance therewith is
fatal because these requirements are conditions sine quo non before dismissal may be validly effected.[35]
Private respondent failed to substantially comply with the above requirements. With regard to the
first notice, the letter,[36] dated 17 October 1991, which notified petitioner and his wife to attend the
meeting on 21 October 1991, cannot be construed as the written charge required by law. A perusal of the
said letter reveals that it never categorically stated the particular acts or omissions on which petitioners
impending termination was grounded. In fact, the letter never even mentioned that petitioner would be
subject to investigation. The letter merely mentioned that petitioner and his wife were invited to a meeting
wherein what would be discussed were the alleged unremitted church tithes and the events that
transpired on 16 October 1991. Thus, petitioner was surprised to find out that the alleged meeting turned
out to be an investigation. From the tenor of the letter, it cannot be presumed that petitioner was actually
on the verge of dismissal. The alleged grounds for the dismissal of petitioner from the service were only
revealed to him when the actual letter of dismissal was finally issued. For this reason, it cannot be said

that petitioner was given enough opportunity to properly prepare for his defense. While admittedly,
private respondents complied with the second requirement, the notice of termination, this does not cure
the initial defect of lack of the proper written charge required by law.
In the letter of termination,[37] dated 29 October 1991, private respondents enumerated the following
as grounds for the dismissal of petitioner, namely: misappropriation of denominational funds, willful
breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an offense
against the person of employers duly authorized representative. Breach of trust and misappropriation of
denominational funds refer to the alleged failure of petitioner to remit to the treasurer of the Negros
Mission tithes, collections and offerings amounting to P15,078.10 which were collected by his wife, Mrs.
Thelma Austria, in the churches under his jurisdiction. On the other hand, serious misconduct and
commission of an offense against the person of the employers duly authorized representative pertain to
the 16 October 1991 incident wherein petitioner allegedly committed an act of violence in the office of
Pastor Gideon Buhat. The final ground invoked by private respondents is gross and habitual neglect of
duties allegedly committed by petitioner.
We cannot sustain the validity of dismissal based on the ground of breach of trust. Private
respondents allege that they have lost their confidence in petitioner for his failure, despite demands, to
remit the tithes and offerings amounting to P15,078.10, which were collected in his district. A careful
study of the voluminous records of the case reveals that there is simply no basis for the alleged loss of
confidence and breach of trust. Settled is the rule that under Article 282 (c) of the Labor Code, the breach
of trust must be willful. A breach is willful if it is done intentionally, knowingly and purposely, without
justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
[38]
It must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or
suspicion; otherwise, the employee would eternally remain at the mercy of the employer. [39] It should be
genuine and not simulated.[40] This ground has never been intended to afford an occasion for abuse,
because of its subjective nature. The records show that there were only six (6) instances when petitioner
personally collected and received from the church treasurers the tithes, collections, and donations for the
church.[41] The stenographic notes on the testimony of Naomi Geniebla, the Negros Mission Church
Auditor and a witness for private respondents, show that Pastor Austria was able to remit all his
collections to the treasurer of the Negros Mission.[42]
Though private respondents were able to establish that petitioner collected and received tithes and
donations several times, they were not able to establish that petitioner failed to remit the same to the
Negros Mission, and that he pocketed the amount and used it for his personal purpose. In fact, as
admitted by their own witness, Naomi Geniebla, petitioner remitted the amounts which he collected to the
Negros Mission for which corresponding receipts were issued to him. Thus, the allegations of private
respondents that petitioner breached their trust have no leg to stand on.
In a vain attempt to support their claim of breach of trust, private respondents try to pin on petitioner
the alleged non-remittance of the tithes collected by his wife. This argument deserves little
consideration. First of all, as proven by convincing and substantial evidence consisting of the testimonies
of the witnesses for private respondents who are church treasurers, it was Mrs. Thelma Austria who
actually collected the tithes and donations from them, and, who failed to remit the same to the treasurer of
the Negros Mission. The testimony of these church treasurers were corroborated and confirmed by Ms.
Geniebla and Mr. Ibesate, officers of the SDA. Hence, in the absence of conspiracy and collusion, which
private respondents failed to demonstrate, between petitioner and his wife, petitioner cannot be made
accountable for the alleged infraction committed by his wife. After all, they still have separate and distinct
personalities. For this reason, the Labor Arbiter found it difficult to see the basis for the alleged loss of
confidence and breach of trust. The Court does not find any cogent reason, therefore, to digress from the
findings of the Labor Arbiter which is fully supported by the evidence on record.
With respect to the grounds of serious misconduct and commission of an offense against the person
of the employers duly authorized representative, we find the same unmeritorious and, as such, do not
warrant petitioners dismissal from the service.
Misconduct has been defined as improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and

implies wrongful intent and not mere error in judgment. [43] For misconduct to be considered serious it must
be of such grave and aggravated character and not merely trivial or unimportant. [44] Based on this
standard, we believe that the act of petitioner in banging the attache case on the table, throwing the
telephone and scattering the books in the office of Pastor Buhat, although improper, cannot be considered
as grave enough to be considered as serious misconduct. After all, as correctly observed by the Labor
Arbiter, though petitioner committed damage to property, he did not physically assault Pastor Buhat or any
other pastor present during the incident of 16 October 1991. In fact, the alleged offense committed upon
the person of the employers representatives was never really established or proven by private
respondents. Hence, there is no basis for the allegation that petitioners act constituted serious
misconduct or that the same was an offense against the person of the employers duly authorized
representative. As such, the cited actuation of petitioner does not justify the ultimate penalty of dismissal
from employment. While the Constitution does not condone wrongdoing by the employee, it nevertheless
urges a moderation of the sanctions that may be applied to him in light of the many disadvantages that
weigh heavily on him like an albatross on his neck. [45] Where a penalty less punitive would suffice,
whatever missteps may have been committed by the worker ought not be visited with a consequence so
severe such as dismissal from employment. [46] For the foregoing reasons, we believe that the minor
infraction committed by petitioner does not merit the ultimate penalty of dismissal.
The final ground alleged by private respondents in terminating petitioner, gross and habitual neglect
of duties, does not requires an exhaustive discussion. Suffice it to say that all private respondents had
were allegations but not proof. Aside from merely citing the said ground, private respondents failed to
prove culpability on the part of petitioner. In fact, the evidence on record shows otherwise. Petitioners
rise from the ranks disclose that he was actually a hard-worker. Private respondents evidence,[47] which
consisted of petitioners Workers Reports, revealed how petitioner travelled to different churches to
attend to the faithful under his care. Indeed, he labored hard for the SDA, but, in return, he was rewarded
with a dismissal from the service for a non-existent cause.
In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was terminated
from service without just or lawful cause. Having been illegally dismissed, petitioner is entitled to
reinstatement to his former position without loss of seniority right [48] and the payment of full backwages
without any deduction corresponding to the period from his illegal dismissal up to actual reinstatement. [49]
WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of public
respondent National Labor Relations Commission, rendered on 23 January 1996, is NULLIFIED and SET
ASIDE. The Decision of the Labor Arbiter, dated 15 February 1993, is reinstated and hereby AFFIRMED.
SO ORDERED.

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

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY


CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO DIZON, SALVADOR
GELSANO and BENITO LAUGO, petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV.
FR. RUSTOM FLORANO and DELFIN BORDAS, respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals
in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of
Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.

The antecedents show that petitioners were lay members of the Philippine Independent Church
(PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the
bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by Dominador
Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their
request. It appears from the records that the family of Fr. Floranos wife belonged to a political party
opposed to petitioner Tarucs, thus the animosity between the two factions with Fr. Florano being identified
with his wifes political camp. Bishop de la Cruz, however, found this too flimsy a reason for transferring
Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when
petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong
during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to
dissuade him from pushing through with it because Fr. Ambong was not a member of the clergy of the
diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to
petitioner Taruc to refrain from committing acts inimical and prejudicial to the best interests of the PIC. He
likewise advised petitioners to air their complaints before the higher authorities of PIC if they believed they
had valid grievances against him, the parish priest, the laws and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at
around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the
celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the
Philippine Independent Church for reasons of:
(1)

disobedience to duly constituted authority in the Church;

(2)

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

(3)

for threatening to forcibly occupy the Parish Church causing anxiety and fear among the
general membership.[1]

Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his
letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down voluntarily to
avert the hostility and enmity among the members of the PIC parish in Socorro but stated that:
I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish. [2]
In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced
by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for
transferring Fr. Florano to another parish. He issued a circular denying petitioners persistent clamor for
the transfer/re-assignment of Fr. Florano. Petitioners were informed of such denial but they continued to
celebrate mass and hold other religious activities through Fr. Ambong who had been restrained from
performing any priestly functions in the PIC parish of Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch
32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the
Bishop to have petitioners expelled and excommunicated from the PIC. They contended that their
expulsion was illegal because it was done without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of
jurisdiction but it was denied. Their motion for reconsideration was likewise denied so they elevated the
case to the Court of Appeals.

The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal
of the case without prejudice to its being refiled before the proper forum. It held:
We find it unnecessary to deal on the validity of the excommunication/expulsion of the private
respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers to be
outside the province of the civil courts.

Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of
civil or property rights. Those rights may be the subject of litigation in a civil court, and the courts have
jurisdiction to determine controverted claims to the title, use, or possession of church property. (Ibid.,
p.466)

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

Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or
protection of a civil or property rights in order for the court a quo to acquire jurisdiction in the instant case.
[3]

Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a
case involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
In our jurisdiction, we hold the Church and the State to be separate and distinct from each other.
Give to Ceasar what is Ceasars and to God what is Gods. We have, however, observed as early as
1928 that:
upon the examination of the decisions it will be readily apparent that cases involving questions relative to
ecclesiastical rights have always received the profoundest attention from the courts, not only because of
their inherent interest, but because of the far reaching effects of the decisions in human society.
[However,] courts have learned the lesson of conservatism in dealing with such matters, it having been
found that, in a form of government where the complete separation of civil and ecclesiastical authority is
insisted upon, the civil courts must not allow themselves to intrude unduly in matters of an ecclesiastical
nature.[4] (italics ours)
We agree with the Court of Appeals that the expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of
said institution/organization. It is not for the courts to exercise control over church authorities in the

performance of their discretionary and official functions. Rather, it is for the members of religious
institutions/organizations to conform to just church regulations. In the words of Justice Samuel F. Miller[5]:
all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the
Church government and they are bound to submit to it.
In the leading case of Fonacier v. Court of Appeals, [6] we enunciated the doctrine that in disputes
involving religious institutions or organizations, there is one area which the Court should not touch:
doctrinal and disciplinary differences.[7] Thus,
The amendments of the constitution, restatement of articles of religion and abandonment of faith or
abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical
law, custom and rule of a church and having reference to the power of excluding from the church
those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are
outside the province of the civil courts. (emphasis ours)
We would, however, like to comment on petitioners claim that they were not heard before they were
expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several
times not to commit acts inimical to the best interests of PIC. They were also warned of the
consequences of their actions, among them their expulsion/excommunication from PIC. Yet, these pleas
and warnings fell on deaf ears and petitioners went ahead with their plans to defy their Bishop and foment
hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They should now take full
responsibility for the chaos and dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.

SECTION 6 RIGHT TO TRAVEL


G.R. No. 158793

June 8, 2006

JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS FEDERATION,


INC., Petitioners,
vs.
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and TOLL REGULATORY
BOARD, Respondents.
DECISION
CARPIO, J.:
This petition for review on certiorari1 seeks to reverse the Decision dated 10 March 2003 of the Regional
Trial Court, Branch 147, Makati City (RTC) in Civil Case No. 01-034, as well as the RTCs Order dated 16
June 2003 which denied petitioners Motion for Reconsideration. Petitioners assert that Department of
Public Works and Highways (DPWH) Department Order No. 74 (DO 74), Department Order No. 215 (DO
215), and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board
(TRB) violate Republic Act No. 2000 (RA 2000) or the Limited Access Highway Act. Petitioners also seek
to declare Department Order No. 123 (DO 123) and Administrative Order No. 1 (AO 1) 2 unconstitutional.
Antecedent Facts

The facts are not in dispute. As summarized by the Solicitor General, the facts are as follows:
1. On January 10, 2001, petitioners filed before the trial court a Petition for Declaratory Judgment
with Application for Temporary Restraining Order and Injunction docketed as Civil Case No. 01034. The petition sought the declaration of nullity of the following administrative issuances for
being inconsistent with the provisions of Republic Act 2000, entitled "Limited Access Highway Act"
enacted in 1957:
a. DPWH Administrative Order No. 1, Series of 1968;
b. DPWH Department Order No. 74, Series of 1993;
c. Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated in
199[8] by the DPWH thru the Toll Regulatory Board (TRB).
2. Previously, pursuant to its mandate under R.A. 2000, DPWH issued on June 25, 1998
Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll Expressway as
limited access facilities.
3. Accordingly, petitioners filed an Amended Petition on February 8, 2001 wherein petitioners
sought the declaration of nullity of the aforesaid administrative issuances. Moreover, petitioners
prayed for the issuance of a temporary restraining order and/or preliminary injunction to prevent
the enforcement of the total ban on motorcycles along the entire breadth of North and South
Luzon Expressways and the Manila-Cavite (Coastal Road) Toll Expressway under DO 215.
4. On June 28, 2001, the trial court, thru then Presiding Judge Teofilo Guadiz, after due hearing,
issued an order granting petitioners application for preliminary injunction. On July 16, 2001, a writ
of preliminary injunction was issued by the trial court, conditioned upon petitioners filing of cash
bond in the amount ofP100,000.00, which petitioners subsequently complied with.
5. On July 18, 2001, the DPWH acting thru the TRB, issued Department Order No. 123 allowing
motorcycles with engine displacement of 400 cubic centimeters inside limited access facilities (toll
ways).
6. Upon the assumption of Honorable Presiding Judge Ma. Cristina Cornejo, both the petitioners
and respondents were required to file their respective Memoranda. Petitioners likewise filed [their]
Supplemental Memorandum. Thereafter, the case was deemed submitted for decision.
7. Consequently, on March 10, 2003, the trial court issued the assailed decision dismissing the
petition but declaring invalid DO 123. Petitioners moved for a reconsideration of the dismissal of
their petition; but it was denied by the trial court in its Order dated June 16, 2003. 3
Hence, this petition.
The RTCs Ruling
The dispositive portion of the RTCs Decision dated 10 March 2003 reads:
WHEREFORE, [t]he Petition is denied/dismissed insofar as petitioners seek to declare null and void ab
initio DPWH Department Order No. 74, Series of 1993, Administrative Order No. 1, and Art. II, Sec. 3(a) of
the Revised Rules on Limited Access Facilities promulgated by the DPWH thru the TRB, the presumed
validity thereof not having been overcome; but the petition is granted insofar as DPWH Department Order

No. 123 is concerned, declaring the same to be invalid for being violative of the equal protection clause of
the Constitution.
SO ORDERED.4
The Issues
Petitioners seek a reversal and raise the following issues for resolution:
1. WHETHER THE RTCS DECISION IS ALREADY BARRED BY RES JUDICATA;
2. WHETHER DO 74, DO 215 AND THE TRB REGULATIONS CONTRAVENE RA 2000; AND
3. WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL.5
The Ruling of the Court
The petition is partly meritorious.
Whether the RTCs Decision Dismissing Petitioners Case is Barred by Res Judicata
Petitioners rely on the RTCs Order dated 28 June 2001, which granted their prayer for a writ of
preliminary injunction. Since respondents did not appeal from that Order, petitioners argue that the Order
became "a final judgment" on the issues. Petitioners conclude that the RTC erred when it subsequently
dismissed their petition in its Decision dated 10 March 2003.
Petitioners are mistaken. As the RTC correctly stated, the Order dated 28 June 2001 was not an
adjudication on the merits of the case that would trigger res judicata. A preliminary injunction does not
serve as a final determination of the issues. It is a provisional remedy, which merely serves to preserve
the status quo until the court could hear the merits of the case. 6 Thus, Section 9 of Rule 58 of the 1997
Rules of Civil Procedure requires the issuance of a final injunction to confirm the preliminary injunction
should the court during trial determine that the acts complained of deserve to be permanently enjoined. A
preliminary injunction is a mere adjunct, an ancillary remedy which exists only as an incident of the main
proceeding.7
Validity of DO 74, DO 215 and the TRB Regulations
Petitioners claim that DO 74,8 DO 215,9 and the TRBs Rules and Regulations issued under them violate
the provisions of RA 2000. They contend that the two issuances unduly expanded the power of the
DPWH in Section 4 of RA 2000 to regulate toll ways. Petitioners assert that the DPWHs regulatory
authority is limited to acts like redesigning curbings or central dividing sections. They claim that the
DPWH is only allowed to re-design the physical structure of toll ways, and not to determine "who or what
can be qualified as toll way users."10
Section 4 of RA 200011 reads:
SEC. 4. Design of limited access facility. The Department of Public Works and Communications is
authorized to so design any limited access facility and to so regulate, restrict, or prohibit access
as to best serve the traffic for which such facility is intended; and its determination of such design
shall be final. In this connection, it is authorized to divide and separate any limited access facility into
separate roadways by the construction of raised curbings, central dividing sections, or other physical
separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for
such traffic by appropriate signs, markers, stripes and other devices. No person, shall have any right of

ingress or egress to, from or across limited access facilities to or from abutting lands, except at such
designated points at which access may be permitted, upon such terms and conditions as may be
specified from time to time. (Emphasis supplied)
On 19 February 1968, Secretary Antonio V. Raquiza of the Department of Public Works and
Communicationsissued AO 1, which, among others, prohibited motorcycles on limited access highways.
The pertinent provisions of AO 1 read:
SUBJECT: Revised Rules and Regulations Governing Limited Access Highways
By virtue of the authority granted the Secretary [of] Public Works and Communications under
Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following rules and
regulations governing limited access highways are hereby promulgated for the guidance of all concerned:
xxxx
Section 3 On limited access highways, it is unlawful for any person or group of persons to:
xxxx
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized);
x x x x12 (Emphasis supplied)
On 5 April 1993, Acting Secretary Edmundo V. Mir of the Department of Public Works and
Highways issued DO 74:
SUBJECT: Declaration of the North Luzon Expressway from Balintawak to Tabang and the South Luzon
Expressway from Nichols to Alabang as Limited Access Facilities
Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street
especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or
other persons have no right or easement or only a limited right or easement of access, light, air or view by
reason of the fact that their proper[t]y abuts upon such limited access facility or for any other reason.
Such highways or streets may be parkways, from which trucks, buses, and other commerical [sic]
vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and
highway traffic."
Section 3 of the same Act authorizes the Department of Public Works and Communications (now
Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that
traffic conditions, present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby
designates and declares the Balintawak to Tabang Sections of the North Luzon Expressway, and the
Nichols to Alabang Sections of the South Luzon Expressways, to be LIMITED ACCESS
HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru
the Toll Regulatory Board (TRB).
In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after
consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal
openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to
organize its own enforcement and security group for the purpose of assuring the continued closure of the

right-of-way fences and the implementation of the rules and regulations that may be imposed by the
DPWH thru the TRB.
This Order shall take effect immediately.13
On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar issued DO 215:
SUBJECT: Declaration of the R-1 Expressway, from Seaside drive to Zapote, C-5 Link Expressway, from
Zapote to Noveleta, of the Manila Cavite Toll Expressway as Limited Access Facility.
Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street
especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or
other persons have no right or easement or only a limited right or easement of access, light, air or view by
reason of the fact that their property abuts upon such limited access facility or for any other reason. Such
highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be
excluded; or they may be free ways open to use by all customary forms of street and highway traffic."
Section 3 of the same Act authorizes the Department of Public Works and Communications (now
Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that
traffic conditions, present or future, will justify such special facilities."
Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby
designates and declares the R-1 Expressway, C-5 Link Expressway and the R-1 Extension Expressway
Sections of the Manila Cavite Toll Expressway to be LIMITED ACCESS HIGHWAYS/FACILITIES subject
to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB).
In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after
consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal
openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to
organize its own enforcement and security group for the purpose of assuring the continued closure of the
right-of-way fences and the implementation of the rules and regulations that may be imposed by the
DPWH thru the TRB.
This Order shall take effect immediately.14
The RTC held that Section 4 of RA 2000 expressly authorized the DPWH to design limited access
facilities and to regulate, restrict, or prohibit access as to serve the traffic for which such facilities are
intended. According to the RTC, such authority to regulate, restrict, or prohibit logically includes the
determination of who and what can and cannot be permitted entry or access into the limited access
facilities. Thus, the RTC concluded that AO 1, DO 74, and the Revised Rules and Regulations on Limited
Access Facilities, which ban motorcycles entry or access to the limited access facilities, are not
inconsistent with RA 2000.
RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22 June 1957. Section 4
of RA 2000 provides that "[t]he Department of Public Works and Communications is authorized to so
design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic
for which such facility is intended." The RTC construed this authorization to regulate, restrict, or prohibit
access to limited access facilities to apply to the Department of Public Works and Highways (DPWH).
The RTCs ruling is based on a wrong premise. The RTC assumed that the DPWH derived its authority
from its predecessor, the Department of Public Works and Communications, which is expressly
authorized to regulate, restrict, or prohibit access to limited access facilities under Section 4 of RA 2000.

However, such assumption fails to consider the evolution of the Department of Public Works and
Communications.
Under Act No. 2711, otherwise known as the Revised Administrative Code, approved on 10 March 1917,
there were only seven executive departments, namely: the Department of the Interior, the Department of
Finance, the Department of Justice, the Department of Agriculture and Commerce, the Department of
Public Works and Communications, the Department of Public Instruction, and the Department of
Labor.15 On 20 June 1964, Republic Act No. 413616 created the Land Transportation Commission under
the Department of Public Works and Communications. Later, the Department of Public Works and
Communications was restructured into theDepartment of Public Works, Transportation and
Communications.
On 16 May 1974, Presidential Decree No. 458 (PD 458) separated the Bureau of Public Highways from
the Department of Public Works, Transportation and Communications and created it as a department to
be known as Department of Public Highways. Under Section 3 of PD 458, the Department of Public
Highways is "responsible for developing and implementing programs on the construction and
maintenance of roads, bridges and airport runways."
With the amendment of the 1973 Philippine Constitution in 1976, resulting in the shift in the form of
government, national agencies were renamed from Departments to Ministries. Thus, the Department of
Public Works, Transportation and Communications became the Ministry of Public Works,
Transportation and Communications.
On 23 July 1979, then President Ferdinand E. Marcos issued Executive Order No. 546 (EO 546), creating
aMinistry of Public Works and a Ministry of Transportation and Communications.17 Under Section 1
of EO 546, the Ministry of Public Works assumed the public works functions of the Ministry of Public
Works, Transportation and Communications. The functions of the Ministry of Public Works were the
"construction, maintenance and repair of port works, harbor facilities, lighthouses, navigational aids, shore
protection works, airport buildings and associated facilities, public buildings and school buildings,
monuments and other related structures, as well as undertaking harbor and river dredging works,
reclamation of foreshore and swampland areas, water supply, and flood control and drainage works." 18
On the other hand, the Ministry of Transportation and Communications became the "primary policy,
planning, programming, coordinating, implementing, regulating and administrative entity of the executive
branch of the government in the promotion, development, and regulation of a dependable and
coordinated network of transportation and communication systems." 19 The functions of the Ministry of
Transportation and Communications were:
a. Coordinate and supervise all activities of the Ministry relative to transportation and
communications;
b. Formulate and recommend national policies and guidelines for the preparation and
implementation of an integrated and comprehensive transportation and communications
system at the national, regional and local levels;
c. Establish and administer comprehensive and integrated programs for transportation and
communication, and for this purpose, may call on any agency, corporation, or organization,
whether government or private, whose development programs include transportation and
communications as an integral part to participate and assist in the preparation and
implementation of such programs;
d. Regulate, whenever necessary, activities relative to transportation and communications
and prescribe and collect fees in the exercise of such power;

e. Assess, review and provide direction to transportation and communications research and
development programs of the government in coordination with other institutions concerned; and
f. Perform such other functions as may be necessary to carry into effect the provisions of this
Executive Order.20 (Emphasis supplied)
On 27 July 1981, then President Marcos issued Executive Order No. 710 (EO 710), which merged the
Ministry of Public Works and the Ministry of Public Highways for "greater simplicity and economy in
operations."21 The restructured agency became known as the Ministry of Public Works and Highways.
Under Section 1 of EO 710 the functions of the Ministry of Public Works and the Ministry of Public
Highways22 were transferred to the Ministry of Public Works and Highways.
Upon the ratification of the 1987 Constitution in February 1987, the former Ministry of Public Works and
Highways became the Department of Public Works and Highways (DPWH) and the former Ministry of
Transportation and Communications became the Department of Transportation and Communications
(DOTC).
DPWH issued DO 74 and DO 215 declaring certain expressways as limited access facilities on 5 April
1993 and 25 June 1998, respectively. Later, the TRB, under the DPWH, issued the Revised Rules and
Regulations on Limited Access Facilities. However, on 23 July 1979, long before these department orders
and regulations were issued, the Ministry of Public Works, Transportation and Communications was
divided into two agencies the Ministry of Public Works and the Ministry of Transportation and
Communications by virtue of EO 546. The question is, which of these two agencies is now authorized
to regulate, restrict, or prohibit access to limited access facilities? 23
Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed the public
works functions of the Ministry of Public Works, Transportation and Communications. On the other
hand, among the functions of the Ministry of Transportation and Communications (now Department
of Transportation and Communications [DOTC]) were to (1) formulate and recommend national
policies and guidelines for the preparation and implementation of an integrated and comprehensive
transportation and communications systems at the national, regional, and local levels; and (2) regulate,
whenever necessary, activities relative to transportation and communications and prescribe and collect
fees in the exercise of such power. Clearly, under EO 546, it is the DOTC, not the DPWH, which has
authority to regulate, restrict, or prohibit access to limited access facilities.
Even under Executive Order No. 125 (EO 125)24 and Executive Order No. 125-A (EO 125-A),25 which
further reorganized the DOTC, the authority to administer and enforce all laws, rules and regulations
relative to transportation is clearly with the DOTC.26
Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare certain expressways
as limited access facilities. Under the law, it is the DOTC which is authorized to administer and enforce all
laws, rules and regulations in the field of transportation and to regulate related activities.
Since the DPWH has no authority to regulate activities relative to transportation, the TRB 27 cannot derive
its power from the DPWH to issue regulations governing limited access facilities. The DPWH cannot
delegate a power or function which it does not possess in the first place. Since DO 74 and DO 215 are
void, it follows that the rules implementing them are likewise void.
Whether AO 1 and DO 123 are Unconstitutional
DPWH Secretary Simeon A. Datumanong issued DO 123 on 18 July 2001. DO 123 reads in part:
SUBJECT: Revised Rules and Regulations Governing Limited Access Highways

By virtue of the authority granted the Secretary of Public Works and Highways under Section 3 of
R.A. 2000, otherwise known as the Limited Access Highway Act, the following revised rules and
regulations governing limited access highways are hereby promulgated for the guidance of all concerned:
1. Administrative Order No. 1 dated February 19, 1968, issued by the Secretary of the then Department of
Public Works and Communications, is hereby amended by deleting the word "motorcycles" mentioned in
Section 3(h) thereof. Therefore, motorcycles are hereby allowed to operate inside the toll roads and
limited access highways, subject to the following:
a. Motorcycles shall have an engine displacement of at least 400 cubic centimeters (cc) provided
that:
x x x x28 (Emphasis supplied)
The RTCs Decision dated 10 March 2003 declared DO 123 unconstitutional on the ground that it violates
the equal protection clause by allowing only motorcycles with at least 400 cubic centimeters engine
displacement to use the toll ways. The RTC reasoned that the creation of a distinction within the class of
motorcycles was not based on real differences.
We need not pass upon the constitutionality of the classification of motorcycles under DO 123. As
previously discussed, the DPWH has no authority to regulate limited access highways since EO 546 has
devolved this function to the DOTC. Thus, DO 123 is void for want of authority of the DPWH to
promulgate it.
On the other hand, the assailed portion of AO 1 states:
Section 3. On limited access highways, it is unlawful for any person or group of persons to:
xxxx
(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized);
xxxx
Petitioners assail the DPWHs failure to provide "scientific" and "objective" data on the danger of having
motorcycles plying our highways. They attack this exercise of police power as baseless and unwarranted.
Petitioners belabor the fact that there are studies that provide proof that motorcycles are safe modes of
transport. They also claim that AO 1 introduces an unreasonable classification by singling-out motorcycles
from other motorized modes of transport. Finally, petitioners argue that AO 1 violates their right to travel.
Petitioners arguments do not convince us.
We emphasize that the Secretary of the Department of Public Works and Communications issued
AO 1 on 19 February 1968.
Section 3 of RA 200029 authorized the issuance of the guidelines. In contrast, DPWH issued DO 74, DO
215 and DO 123 after EO 546 devolved to the DOTC the authority to regulate limited access highways.
We now discuss the constitutionality of AO 1. Administrative issuances have the force and effect of
law.30 They benefit from the same presumption of validity and constitutionality enjoyed by
statutes.31 These two precepts place a heavy burden upon any party assailing governmental regulations.
The burden of proving unconstitutionality rests on such party.32 The burden becomes heavier when the
police power is at issue.

The use of public highways by motor vehicles is subject to regulation as an exercise of the police power
of the state.33 The police power is far-reaching in scope and is the "most essential, insistent and
illimitable" of all government powers.34 The tendency is to extend rather than to restrict the use of police
power. The sole standard in measuring its exercise is reasonableness. 35 What is "reasonable" is not
subject to exact definition or scientific formulation. No all-embracing test of reasonableness exists, 36 for its
determination rests upon human judgment applied to the facts and circumstances of each particular
case.37
We find that AO 1 does not impose unreasonable restrictions. It merely outlines several precautionary
measures, to which toll way users must adhere. These rules were designed to ensure public safety and
the uninhibited flow of traffic within limited access facilities. They cover several subjects, from what lanes
should be used by a certain vehicle, to maximum vehicle height. The prohibition of certain types of
vehicles is but one of these. None of these rules violates reason. The purpose of these rules and the logic
behind them are quite evident. A toll way is not an ordinary road. The special purpose for which a toll way
is constructed necessitates the imposition of guidelines in the manner of its use and operation. Inevitably,
such rules will restrict certain rights. But the mere fact that certain rights are restricted does not invalidate
the rules.
Consider Section 3(g) of AO 1, which prohibits the conduct of rallies inside toll ways. 38 The regulation
affects the right to peaceably assemble. The exercise of police power involves restriction, restriction being
implicit in the power itself. Thus, the test of constitutionality of a police power measure is limited to an
inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it
imposes a restriction on those rights.
None of the rules outlined in AO 1 strikes us as arbitrary and capricious. The DPWH, through the Solicitor
General, maintains that the toll ways were not designed to accommodate motorcycles and that their
presence in the toll ways will compromise safety and traffic considerations. The DPWH points out that the
same study the petitioners rely on cites that the inability of other drivers to detect motorcycles is the
predominant cause of accidents.39 Arguably, prohibiting the use of motorcycles in toll ways may not be the
"best" measure to ensure the safety and comfort of those who ply the toll ways.
However, the means by which the government chooses to act is not judged in terms of what is "best,"
rather, on simply whether the act is reasonable. The validity of a police power measure does not depend
upon the absolute assurance that the purpose desired can in fact be probably fully accomplished, or upon
the certainty that it will best serve the purpose intended. 40 Reason, not scientific exactitude, is the
measure of the validity of the governmental regulation. Arguments based on what is "best" are arguments
reserved for the Legislatures discussion. Judicial intervention in such matters will only be warranted if the
assailed regulation is patently whimsical. We do not find the situation in this case to be so.
Neither do we find AO 1 oppressive. Petitioners are not being deprived of their right to use the limited
access facility. They are merely being required, just like the rest of the public, to adhere to the rules on
how to use the facility. AO 1 does not infringe upon petitioners right to travel but merely bars motorcycles,
bicycles, tricycles, pedicabs, and any nonmotorized vehicles as the mode of traveling along limited access highways. 41 Several cheap, accessible
and practical alternative modes of transport are open to petitioners. There is nothing oppressive in being
required to take a bus or drive a car instead of ones scooter, bicycle, calesa, or motorcycle upon using a
toll way.
Petitioners reliance on the studies they gathered is misplaced. Police power does not rely upon the
existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police
power must first be conclusively justified by research. The yardstick has always been simply whether the
governments act is reasonable and not oppressive.42 The use of "reason" in this sense is simply meant to
guard against arbitrary and capricious government action. Scientific certainty and conclusiveness, though

desirable, may not be demanded in every situation. Otherwise, no government will be able to act in
situations demanding the exercise of its residual powers because it will be tied up conducting studies.
A police power measure may be assailed upon proof that it unduly violates constitutional limitations like
due process and equal protection of the law.43 Petitioners attempt to seek redress from the motorcycle
ban under the aegis of equal protection must fail. Petitioners contention that AO 1 unreasonably singles
out motorcycles is specious. To begin with, classification by itself is not prohibited. 44
A classification can only be assailed if it is deemed invidious, that is, it is not based on real or substantial
differences. As explained by Chief Justice Fernando in Bautista v. Juinio:45
x x x To assure that the general welfare be promoted, which is the end of law, a regulatory measure may
cut into the rights to liberty and property. Those adversely affected may under such circumstances
invoked the equal protection clause only if they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in reason. It suffices then that the laws operate equally and
uniformly on all persons under similar circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security
shall be given to every person under circumstances, which if not identical is analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding the rest.
We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable
classification among modes of transport is the motorized against the non-motorized. Not all motorized
vehicles are created equal. A 16-wheeler truck is substantially different from other light vehicles. The first
may be denied access to some roads where the latter are free to drive. Old vehicles may be reasonably
differentiated from newer models.46 We find that real and substantial differences exist between a
motorcycle and other forms of transport sufficient to justify its classification among those prohibited from
plying the toll ways. Amongst all types of motorized transport, it is obvious, even to a child, that a
motorcycle is quite different from a car, a bus or a truck. The most obvious and troubling difference would
be that a two-wheeled vehicle is less stable and more easily overturned than a four-wheeled vehicle.
A classification based on practical convenience and common knowledge is not unconstitutional simply
because it may lack purely theoretical or scientific uniformity. Moreover, we take note that the Philippines
is home to a host of unique motorized modes of transport ranging from modified hand-carts (kuliglig) to
bicycle "sidecars" outfitted with a motor. To follow petitioners argument to its logical conclusion would
open up toll ways to all these contraptions. Both safety and traffic considerations militate against any
ruling that would bring about such a nightmare.
Petitioners complain that the prohibition on the use of motorcycles in toll ways unduly deprive them of
their right to travel.
We are not persuaded.
A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain
destinations, its use, operation, and maintenance require close regulation. Public interest and safety
require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special
kind of road, it is but reasonable that not all forms of transport could use it.
The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to
travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time
they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move
from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of

the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a
subject that can be validly limited by regulation.
Petitioners themselves admit that alternative routes are available to them. Their complaint is that these
routes are not the safest and most convenient. Even if their claim is true, it hardly qualifies as an undue
curtailment of their freedom of movement and travel. The right to travel does not entitle a person to the
best form of transport or to the most convenient route to his destination. The obstructions found in normal
streets, which petitioners complain of (i.e., potholes, manholes, construction barriers, etc.), are not
suffered by them alone.
Finally, petitioners assert that their possession of a drivers license from the Land Transportation Office
(LTO) and the fact that their vehicles are registered with that office entitle them to use all kinds of roads in
the country. Again, petitioners are mistaken. There exists no absolute right to drive. On the contrary,
this privilege, is heavily regulated. Only a qualified group is allowed to drive motor vehicles: those who
pass the tests administered by the LTO. A drivers license issued by the LTO merely allows one to drive a
particular mode of transport. It is not a license to drive or operate any form of transportation on any type
of road. Vehicle registration in the LTO on the other hand merely signifies the roadworthiness of a vehicle.
This does not preclude the government from prescribing which roads are accessible to certain vehicles.
WHEREFORE, we PARTLY GRANT the petition. We MODIFY the Decision dated 10 March 2003 of the
Regional Trial Court, Branch 147, Makati City and its Order dated 16 June 2003 in Civil Case No. 01-034.
We declare VOIDDepartment Order Nos. 74, 215, and 123 of the Department of Public Works and
Highways, and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory
Board. We declare VALIDAdministrative Order No. 1 of the Department of Public Works and
Communications.
SO ORDERED.

[G.R. No. 141529. June 6, 2001]

FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF APPEALS and the PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside
two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on
change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the
Regional Trial Court of Pasig City[1] and was sentenced to four years and two months of prision
correccional, as minimum, to eight years of prision mayor as maximum, in addition to one (1) year for
each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years. [2]He
filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed
earlier in the proceedings. The motion was denied by the trial court in an order dated February 17, 1999.

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

The Commission of Immigration and Deportation (CID) is hereby directed to issue a hold
departure order against accused-appellant; and

(3)

The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court
for safekeeping until the court orders its return;

(4)

Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellants
bail bond, the dismissal of appeal and his immediate arrest and confinement in jail.

SO ORDERED.[5]
A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by
respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition.
Petitioner sets out the following assignments of error:
The respondent Court of Appeals committed grave abuse of discretion in fixing the bail for the
provisional liberty of petitioner pending appeal in the amount of P5.5 million.
The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the
provisional liberty of the petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioners constitutional liberty of abode and
travel in imposing the other conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively
denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at
P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila
Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability
of the accused to be a guideline or basis for determining the amount of bail. He prays that bail be
reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of
estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during
the trial of the case.[6]

On the other hand, the Solicitor General maintains that no grave abuse of discretion could be
ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of
the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which
petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to civil
liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the
probability of flight in case petitioner is released on bail, it having been established that petitioner was in
possession of a valid passport and visa and had in fact left the country several times during the course of
the proceedings in the lower court. It was also shown that petitioner used different names in his business
transactions and had several abodes in different parts of the country.
As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court
of Appeals requires is notice in case of change of address; it does not in any way impair petitioners right
to change abode for as long as the court is apprised of his change of residence during the pendency of
the appeal.
Petitioners case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which
states:
SEC. 5. Bail, when discretionary. --- Upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit
the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail
bond during the period to appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20)
years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing
by the prosecution, with notice to the accused, of the following or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or
has violated the conditions of his bail without valid justification;
(c) That the accused committed the offense while on probation, parole, or under conditional pardon;
(d) That the circumstances of the accused or his case indicate the probability of flight if released on bail;
or
(e) That there is undue risk that during the pendency of the appeal, the accused may commit another
crime.
The appellate court may review the resolution of the Regional Trial Court, on motion and with notice
to the adverse party.[7]
There is no question that in the present case the Court of Appeals exercised its discretion in favor of
allowing bail to petitioner on appeal. Respondent court stated that it was doing so for humanitarian
reasons, and despite a perceived high risk of flight, as by petitioners admission he went out of the
country several times during the pendency of the case, for which reason the court deemed it necessary to
peg the amount of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in the Constitution. [8] The obvious
rationale, as declared in the leading case of De la Camara vs. Enage,[9] is that imposing bail in an
excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abao,[10] this Court

made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts
should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a
prohibitory sum or exacting unreasonable conditions.
xxx There is grim irony in an accused being told that he has a right to bail but at the same time being
required to post such an exorbitant sum. What aggravates the situation is that the lower court judge
would apparently yield to the command of the fundamental law. In reality, such a sanctimonious
avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to
believe that any person in the position of petitioner would under the circumstances be unable to
resist thoughts of escaping from confinement, reduced as he must have been to a state of
desperation. In the same breath as he was told he could be bailed out, the excessive amount
required could only mean that provisional liberty would be beyond his reach. It would have been
more forthright if he were informed categorically that such a right could not be availed of. There
would have been no disappointment of expectations then. It does call to mind these words of
Justice Jackson, a promise to the ear to be broken to the hope, a teasing illusion like a munificent
bequest in a paupers will. xxx[11]
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to
consider the following factors in the setting of the amount of bail:
(a)

Financial ability of the accused to give bail;

(b)

Nature and circumstances of the offense;

(c)

Penalty for the offense charged;

(d)

Character and reputation of the accused;

(e)

Age and health of the accused;

(f)

Weight of the evidence against the accused;

(g)

Probability of the accused appearing at the trial;

(h)

Forfeiture of other bail;

(i)

The fact that the accused was a fugitive from justice when arrested; and

(j)

Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may
jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may
include increasing the bail bond to an appropriate level, or requiring the person to report periodically to
the court and to make an accounting of his movements. [12] In the present case, where petitioner was
found to have left the country several times while the case was pending, the Court of Appeals required the
confiscation of his passport and the issuance of a hold-departure order against him.
Under the circumstances of this case, we find that appropriate conditions have been imposed in the
bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and
the requirement that petitioner inform the court of any change of residence and of his whereabouts.
Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that
the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial
of petitioners right to bail.
The purpose for bail is to guarantee the appearance of the accused at the trial, [13] or whenever so
required by the court[14] The amount should be high enough to assure the presence of the accused when
required but no higher than is reasonably calculated to fulfill this purpose. [15] To fix bail at an amount
equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00) is to permit the
impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this

we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which
should necessarily await the judgment of the appellate court.
At the same time, we cannot yield to petitioners submission that bail in the instant case be set at
P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29,
2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or
over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail
Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although
technically not binding upon the courts, merits attention, being in a sense an expression of policy of the
Executive Branch, through the Department of Justice, in the enforcement of criminal laws. [16] Thus, courts
are advised that they must not only be aware but should also consider the Bail Bond Guide due to its
significance in the administration of criminal justice. [17] This notwithstanding, the Court is not precluded
from imposing in petitioners case an amount higher than P40,000.00 (based on the Bail Bond Guide)
where it perceives that an appropriate increase is dictated by the circumstances.
It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised
Rules of Criminal Procedure is clear that although the grant of bail on appeal in non-capital offenses is
discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances
exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his
bail previously granted should be cancelled.[18] In the same vein, the Court has held that the discretion to
extend bail during the course of the appeal should be exercised with grave caution and for strong
reasons, considering that the accused had been in fact convicted by the trial court. [19] In an earlier case,
the Court adopted Senator Vicente J. Franciscos disquisition on why bail should be denied after
judgment of conviction as a matter of wise discretion; thus:
The importance attached to conviction is due to the underlying principle that bail should be granted only
where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is
removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been
tried and convicted the presumption of innocence which may be relied upon in prior applications is
rebutted, and the burden is upon the accused to show error in the conviction. From another point of view
it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that
the accused is much more likely to attempt to escape if liberated on bail than before conviction. xxx [20]
Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the
RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --- the
maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code.
Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the
possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of
P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the
lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00
is more reasonable.
Petitioner also contests the condition imposed by the Court of Appeals that he secure a
certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and
that he will remain to be a resident therein until final judgment is rendered or in case he transfers
residence, it must be with prior notice to the court, claiming that the same violates his liberty of abode
and travel.
Notably, petitioner does not question the hold-departure order which prevents him from leaving the
Philippines unless expressly permitted by the court which issued the order.[21] In fact, the petition submits
that the hold-departure order against petitioner is already sufficient guarantee that he will not
escape. Thus, to require him to inform the court every time he changed his residence is already
unnecessary.[22]
The right to change abode and travel within the Philippines, being invoked by petitioner, are not
absolute rights. Section 6, Article III of the 1987 Constitution states:

The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law.
The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as
contemplated by the above provision.[23] The condition imposed by the Court of Appeals is simply
consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself
available at all times whenever the Court requires his presence. Besides, a closer look at the questioned
condition will show that petitioner is not prevented from changing abode; he is merely required to inform
the court in case he does so.
WHEREFORE, the petition is PARTIALLY GRANTED. Petitioners bail pending appeal is reduced
from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated
October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
RICARDO L. MANOTOC, JR., petitioner,
vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as
Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE
PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as
Commissioner of Immigration, and the Chief of the Aviation Security Command
(AVSECOM), respondents.

FERNAN, J.:
The issue posed for resolution in this petition for review may be stated thus: Does a person facing a
criminal indictment and provisionally released on bail have an unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management,
Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of
the latter into the hands of professional men, he holds no officer-position in said business, but acts as
president of the former corporation.
Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction,
petitioner, who was then in the United States, came home, and together with his co-stockholders, filed a
petition with the Securities and Exchange Commission for the appointment of a management committee,
not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative
to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the
Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo
Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the
then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a
memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the
Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake,
six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as
president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding
criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of
Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and

Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been
admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission
to leave the country," stating as ground therefor his desire to go to the United States, "relative to his
business transactions and opportunities." 1 The prosecution opposed said motion and after due hearing,
both trial judges denied the same. The order of Judge Camilon dated March 9, 1982, reads:
Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing
ground that his trip is ... relative to his business transactions and opportunities.
The Court sees no urgency from this statement. No matter of any magnitude is discerned
to warrant judicial imprimatur on the proposed trip.
In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in
the future until these two (2) cases are terminated . 2
On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:
6.-Finally, there is also merit in the prosecution's contention that if the Court would allow
the accused to leave the Philippines the surety companies that filed the bail bonds in his
behalf might claim that they could no longer be held liable in their undertakings because it
was the Court which allowed the accused to go outside the territorial jurisdiction of the
Philippine Court, should the accused fail or decide not to return.
WHEREFORE, the motion of the accused is DENIED.

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or
withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a
letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking to
annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as
the communication-request of the Securities and Exchange Commission, denying his leave to travel
abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration
Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure.
On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.
Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari.
Pending resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on
August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion, petitioner stated that his
presence in Louisiana, U.S.A. is needed in connection "with the obtention of foreign investment in
Manotoc Securities, Inc." 8 He attached the letter dated August 9, 1984 of the chief executive officer of the
Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller 9 requesting his presence in the United
States to "meet the people and companies who would be involved in its investments." Petitioner, likewise
manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of
Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the
ground that after verification of the records of the Securities and Exchange Commission ... (he) was not in
any way connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses
imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however,
remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner,
instead of dismissing the cases before him, ordered merely the informations amended so as to delete the

allegation that petitioner was president and to substitute that he was "controlling/majority
stockholder,'' 11 of Manotoc Securities, Inc. On September 20, 1984, the Court in a resolution en
banc denied petitioner's motion for leave to go abroadpendente lite. 12
Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted
him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could
prevent him from exercising his constitutional right to travel.
Petitioner's contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of
a person who is in the custody of the law, that he will appear before any court in which his appearance
may be required as stipulated in the bail bond or recognizance.
Its object is to relieve the accused of imprisonment and the state of the burden of keeping
him, pending the trial, and at the same time, to put the accused as much under the power
of the court as if he were in custody of the proper officer, and to secure the appearance of
the accused so as to answer the call of the court and do what the law may require of
him. 13
The condition imposed upon petitioner to make himself available at all times whenever the court requires
his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy
Tuising, 61 Phil. 404 (1935).
... the result of the obligation assumed by appellee (surety) to hold the accused amenable
at all times to the orders and processes of the lower court, was to prohibit said accused
from leaving the jurisdiction of the Philippines, because, otherwise, said orders and
processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they
issued does not extend beyond that of the Philippines they would have no binding force
outside of said jurisdiction.
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed
beyond the reach of the courts.
The effect of a recognizance or bail bond, when fully executed or filed of record, and the
prisoner released thereunder, is to transfer the custody of the accused from the public
officials who have him in their charge to keepers of his own selection. Such custody has
been regarded merely as a continuation of the original imprisonment. The sureties
become invested with full authority over the person of the principal and have the right to
prevent the principal from leaving the state. 14
If the sureties have the right to prevent the principal from leaving the state, more so then has the court
from which the sureties merely derive such right, and whose jurisdiction over the person of the principal
remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is
recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the
country, for he would not have filed the motion for permission to leave the country in the first place, if it
were otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs.
Shepherd(C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure
of the Court. ... The law does not limit such undertaking of the bondsmen as demandable
only when the appellants are in the territorial confines of the Philippines and not
demandable if the appellants are out of the country. Liberty, the most important
consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as
fully within as without the boundaries of the granting state. This principle perhaps
accounts for the absence of any law or jurisprudence expressly declaring that liberty
under bail does not transcend the territorial boundaries of the country.
The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The
rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither
law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial
boundaries of the country, it is not for the reason suggested by the appellate court.
Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able
to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties
to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail
bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed
by the Solicitor General in his comment:
A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is
solely predicated on petitioner's wish to travel to the United States where he will,
allegedly attend to some business transactions and search for business opportunities.
From the tenor and import of petitioner's motion, no urgent or compelling reason can be
discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently
shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears
no indication that the alleged business transactions could not be undertaken by any other
person in his behalf. Neither is there any hint that petitioner's absence from the United
States would absolutely preclude him from taking advantage of business opportunities
therein, nor is there any showing that petitioner's non-presence in the United States
would cause him irreparable damage or prejudice. 15
Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it.
Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The
court cannot allow the accused to leave the country without the assent of the surety because in accepting
a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with
the principal that will increase the risks of the sureties or affect their remedies against him. Under this
rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the
conditions thereof, which is made without his assent. This result has been reached as to a stipulation or
agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to
leave the state or country." 16 Thus, although the order of March 26, 1982 issued by Judge Pronove has
been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before
said judge, We see the rationale behind said order.
As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the
duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial
discretion in their having denied petitioner's motion for permission to leave the country, in much the same
way, albeit with contrary results, that We found no reversible error to have been committed by the
appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply
with the conditions of her bail bond.
The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of
the 1973 Constitution states:

The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety or public health.
To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional provision.
Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds
that no gainful purpose will be served in discussing the other issues raised by petitioner.
WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.
SO ORDERED.

G.R. No. 94284 April 8, 1991


RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of
Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:p
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of
respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C.
Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying
reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act
in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his
provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of
the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure
Order against accused-petitioner on the ground that he had gone abroad several times without the
necessary Court approval resulting in postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department
of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission
on Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial
Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been
arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there
is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad
without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration
was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence,
this Petition for Review filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we resolved to give due course and to
decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed
grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July
1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments
could not be held because there was a pending Motion to Quash the Information; and (2) finding that the
right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that
it was filed long after the filing of the Information in 1985 and only after several arraignments had already
been scheduled and cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash was set
for hearing only on 19 February 1988. Convincingly shown by the Trial Court and conformed to by
respondent Appellate Court is the concurrence of the following circumstances:
1. The records will show that the information was filed on October 14, 1985. Until this
date (28 July 1988), the case had yet to be arraigned. Several scheduled arraignments
were cancelled and reset, mostly due to the failure of accused Silverio to appear. The
reason for accused Silverio's failure to appear had invariably been because he is abroad
in the United States of America;
2. Since the information was filed, until this date, accused Silverio had never appeared in
person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest
had been issued against him all for the same reason failure to appear at scheduled
arraignments.
In all candidness, the Court makes the observation that it has given accused Silverio
more than enough consideration. The limit had long been reached (Order, 28 July 1988,
Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on
erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a
Motion to Quash came about only after several settings for arraignment had been scheduled and
cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the
right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been
cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure
to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of
the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release
of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance
before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as
amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever the
Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of
Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be
restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law,
Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of
the Court where the case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts
to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the
right to travel only on grounds of interest of national security, public safety or public health, as compared
to the provisions on freedom of movement in the 1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision. Article
III, Section 1(4) thereof reads:
The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:
The liberty of abode and of travel shall not be impaired except upon lawful order of the
court or when necessary in the interest of national security, public safety, or public health
(Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to
wit:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel
be impaired except in the interest of national security, public safety, or public health, as
may be provided by law.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the
grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel
may be impaired even without Court Order, the appropriate executive officers or administrative authorities
are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be provided by law," a limitive phrase which
did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p.
263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso &
Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent
power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending
before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process

and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that
the condition imposed upon an accused admitted to bail to make himself available at all times whenever
the Court requires his presence operates as a valid restriction on the right to travel no longer holds under
the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained
unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on
that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404
(1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing
to appear before the Court when required. Warrants for his arrest have been issued. Those orders and
processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his
pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the
reach of the Courts by preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in
any criminal proceeding is the People of the Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to finality without undue delay, with an accused holding
himself amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C.
Silverio.
SO ORDERED.
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS,
NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by
its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.

CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are
involved, the Court's decision in this case would undeniably have a profound effect on the political,
economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the nonviolent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of power
have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos,
the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos
loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism

and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that left scores
of people, both combatants and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set
up a parallel government of their own on the areas they effectively control while the separatist are virtually
free to move about in armed bands. There has been no let up on this groups' determination to wrest
power from the govermnent. Not only through resort to arms but also to through the use of propaganda
have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the
nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into
exile after causing twenty years of political, economic and social havoc in the country and who within the
short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following
issues:
1. Does the President have the power to bar the return of former President Marcos and
family to the Philippines?
a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of "national security, public safety
or public health
a. Has the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety or
public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making
such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety,
or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public safety, or
public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the
return of former President Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing
any act which would effectively bar the return of former President Marcos and his family
to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits prescribed by law." Nor may the President impair their
right to travel because no law has authorized her to do so. They advance the view that before the right to
travel may be impaired by any authority or agency of the government, there must be legislation to that
effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return
to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the
borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his
country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right
to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (order public),
public health or morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political
question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here
at this time in the face of the determination by the President that such return and
residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political
question as it involves merely a determination of what the law provides on the matter and
application thereof to petitioners Ferdinand E. Marcos and family. But when the question
is whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge
on or collide with the more primordial and transcendental right of the State to security and
safety of its nationals, the question becomes political and this Honorable Court can not
consider it.
There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reestablish their residence here? This is clearly a justiciable question which this
Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines
and reestablish their residence here even if their return and residence here will endanger
national security and public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos
and family shall return to the Philippines and establish their residence here? This is now
a political question which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In
support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof,
all citizens may be required, under conditions provided by law, to render personal,
military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo
of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio
batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos
Perez Jimenez of Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted
in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its
limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel
and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S.
116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640)
which affirmed the right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to
other countries or within the Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to leave a country, and the right to enter
one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of
movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave
any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant

guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the
right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by
such laws as "are necessary to protect national security, public order, public health or morals or enter
qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be
inappropriate to construe the limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the
right to return may be considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the International Covenant of Civil
and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected right.
The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations
on the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate
case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or
not the President has the power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the Court under the Constitution
in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the
Philippines poses a serious threat to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)],
"the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." [At 157.1 Thus, the 1987 Constitution
explicitly provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI,
Sec. 11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and
"[te judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative
power; and a grant of the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in
one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of
the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although
in the same article it touches on the exercise of certain powers by the President, i.e., the power of control

over all executive departments, bureaus and offices, the power to execute the laws, the appointing power,
the powers under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit
the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to
her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem.
He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same
token, to those who think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power
shall be vested in a President of the United States of America." . . .. [The President:
Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the
office from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's
dictatorship, he concluded that "what the presidency is at any particular moment depends in important
measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course,
an agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and
ethos according to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations, Idiosyncrasies,
compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to President. Above all, the way
each President understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and to render an accounting
to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to the President's powers under the
1987 Constitution. The 1935 Constitution created a strong President with explicitly broader powers than
the U.S. President. The 1973 Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was also the de facto Legislature. The 1987

Constitution, however, brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides
that the execution of the laws is only one of the powers of the President. It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise ofspecific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine
Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the Government to elect directors in the National
Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the question whether the duties
devolved upon these members are vested by the Organic Act in the Governor-General, it
is clear that they are not legislative in character, and still more clear that they are not
judicial. The fact that they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the remaining one among
which the powers of government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty,

and property, and the promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is
also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are
the deposed dictator and his family at whose door the travails of the country are laid and from whom
billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred
freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed
[see Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with extraordinary powers in times
of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep
the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House
of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return
to the Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof

of our collective adherence to uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's
power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of
compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of
abode and the right to travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court
to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor
can we amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which by its nature or
by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts
to determine whether or not there has been a grave abuse of discretion on the part of any branch or
instrumentality of the government, incorporates in the fundamental law the ruling inLansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle
of separation of powers underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the privilege, but
only if and when he acts within the sphere alloted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of
such authority, the function of the Court is merely to check not to supplant the

Executive, or to ascertain merely whether he has gone beyond the constitutional limits of
his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his
act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and
civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and their
followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the
return of the Marcoses at this time would only exacerbate and intensify the violence directed against the
State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups. But it is
the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that would
break the camel's back. With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The
State, acting through the Government, is not precluded from taking pre- emptive action against threats to
its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of
the people is the essence of the duty of government. The preservation of the State the fruition of the
people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend
the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within
the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years and lead to total economic collapse. Given what is
within our individual and common knowledge of the state of the economy, we cannot argue with that
determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos and his family at the
present time and under present circumstances poses a serious threat to national interest and welfare and
in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

SECTION 7
RIGHT TO INFORMATION
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:
The fundamental right of the people to information on matters of public concern is invoked in this special
civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service
Commission. The respondent had earlier denied Legaspi's request for information on the civil service
eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These
government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as
civil service eligibles who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire
the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the
respondent Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution
(Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various
presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the Land Registration Act
(Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding,
this time to demand access to the records of the Register of Deeds for the purpose of gathering data on
real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained recognition in the Bill of
Rights, Article IV, of the 1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of
the 1987 Constitution with the addition of the phrase, "as well as to government research data used as
basis for policy development." The new provision reads:
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis. for
policy development, shall be afforded the citizen, subject to such stations as may be
provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for
by the Legislature are reasonable conditions and limitations upon the access to be afforded which must,
of necessity, be consistent with the declared State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that
whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have
become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may
be properly invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear
legal right to be informed of the civil service eligibilities of the government employees concerned. He calls
attention to the alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by
the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012
[1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that he
possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is
asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil service
eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed
client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the
right of the people to information on matters of public concern, which, by its very nature, is a public right. It
has been held that:
* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it being sufficient to show that he is
a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs.
Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen,
and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even
those who have no direct or tangible interest in any real estate transaction are part of the "public" to
whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *"
(Sec. 56, Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces
every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of inspection is
to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged
obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the
present suit.
2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of
those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under fundamental rules defining the limits of their
power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties
exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for policy development, subject to such
limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution
with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions
prescribed by law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest. (Art. 11, Sec.
28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an
imperative duty of the government officials concerned to publish all important legislative acts and
resolutions of a public nature as well as all executive orders and proclamations of general applicability.
We granted mandamus in said case, and in the process, We found occasion to expound briefly on the
nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be informed on
matters of public concern is to be given substance and reality. The law itself makes a list
of what should be published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be in included or excluded
from such publication. (Tanada v. Tuvera,supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in allowing the examination of public
records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs.
Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer,
idle curiosity, we do not believe it is the duty under the law of registration officers to
concern themselves with the motives, reasons, and objects of the person seeking access
to the records. It is not their prerogative to see that the information which the records

contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong
to publish the contents of the records, it is the legislature and not the officials having
custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at
388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of
the reasonable regulations which may be imposed by said agencies in custody of public records on the
manner in which the right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do
so, may inspect, examine or copy records relating to registered lands. However, the regulations which the
Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or loss
of, the records may be avoided, that undue interference with the duties of the custodian
of the books and documents and other employees may be prevented, that the right of
other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80
Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate
the manner of inspection by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow examination of the criminal docket records in
his sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to
open and view the subject records, We absolved the respondent. In effect, We have also held that the
rules and conditions imposed by him upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A distinction
has to be made between the discretion to refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the
custody of public records. Its authority to regulate access is to be exercised solely to the end that damage
to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same constitutional right by other persons shall
be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment
of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in
a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public concern is a
recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion

enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids the people in democratic decision-making
(87 Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting
the nation.
But the constitutional guarantee to information on matters of public concern is not absolute. It does not
open every door to any and all information. Under the Constitution, access to official records, papers, etc.,
are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may
therefore exempt certain types of information from public scrutiny, such as those affecting national
security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32,
1986 Constitutional Commission). It follows that, in every case, the availability of access to a particular
public record must be circumscribed by the nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not being exempted by law from the operation of the
constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of
public interest or public concern.
a. This question is first addressed to the government agency having custody of the desired information.
However, as already discussed, this does not give the agency concerned any discretion to grant or deny
access. In case of denial of access, the government agency has the burden of showing that the
information requested is not of public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the
constitutional right. As aptly observed, ". . . the government is in an advantageous position to marshall
and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the
constitutional right, every denial of access by the government agency concerned is subject to review by
the courts, and in the proper case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the
final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to
the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs.
Ozaeta, supra,the public concern deemed covered by the statutory right was the knowledge of those real
estate transactions which some believed to have been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by competitive examination. (Art.
IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure
that government positions requiring civil service eligibility are occupied only by persons who are eligibles.
Public officers are at all times accountable to the people even as to their eligibilities for their respective
positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of the
constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to
cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and
who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass
the civil service examinations, as in bar examinations and licensure examinations for various professions,
are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this
case, the government employees concerned claim to be civil service eligibles, the public, through any
citizen, has a right to verify their professed eligibilities from the Civil Service Commission.
The civil service eligibility of a sanitarian being of public concern, and in the absence of express
limitations under the law upon access to the register of civil service eligibles for said position, the duty of
the respondent Commission to confirm or deny the civil service eligibility of any person occupying the
position becomes imperative. Mandamus, therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of
sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for
said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.

[G.R. No. 132601. October 12, 1998]

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and THE DIRECTOR OF
THE BUREAU OF CORRECTIONS, THE EXECUTIVE JUDGE OF THE REGIONAL TRIAL
COURT OF QUEZON CITY AND THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH 104, respondents.
DECISION
PER CURIAM:
On June 25, 1996, this Court affirmed [1] the conviction of petitioner Leo Echegaray y Pilo for the
crime of rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the
death penalty for the said crime.
Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a
Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of
Republic Act No. 7659[2] (the death penalty law) and the imposition of the death penalty for the crime of
rape.
On February 7, 1998, this Court denied [3] petitioner's Motion for Reconsideration and Supplemental
Motion for Reconsideration with a finding that Congress duly complied with the requirements for the
reimposition of the death penalty and therefore the death penalty law is not unconstitutional.
In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from
electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY
LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR
THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF

REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of Justice promulgated
the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules") [6] and directed the
Director of the Bureau of Corrections to prepare the Lethal Injection Manual. [7]
On March 2, 1998, petitioner filed a Petition [8] for Prohibition, Injunction and/or Temporary Restraining
Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out
the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are
unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per seas well as by
reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the
Philippines' obligations under international covenants, (d) an undue delegation of legislative power by
Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful
delegation of delegated powers by the Secretary of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court [9] to Amend and
Supplement Petition with the Amended and Supplemental Petition [10] attached thereto, invoking the
additional ground of violation of equal protection, and impleading the Executive Judge of the Regional
Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to
enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's
execution.
On March 3, 1998, the Court resolved, without giving due course to the petition, to require the
respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and
directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement
Petition, and required respondents to COMMENT thereon within ten (10) days from notice.
On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo Order, and (2) For
the Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any
action to carry out petitioner's execution until the petition is resolved.
On March 16, 1998, the Office of the Solicitor General [11] filed a Comment (On the Petition and the
Amended Supplemental Petition)[12] stating that (1) this Court has already upheld the constitutionality of
the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive
or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the
questioned rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International
Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death
penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A.
No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary of
Health and the Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible
period of ten days from notice.
On March 25, 1998, the Commission on Human Rights [13] filed a Motion for Leave of Court to
Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to Intervene and/or Appear
asAmicus Curiae[15] alleging that the death penalty imposed under R.A. No. 7659 which is to be
implemented by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and
further invoking (a) Article II, Section 11 of the Constitution which provides: " The State values the dignity
of every human person and guarantees full respect for human rights."; (b) Article III of theUniversal
Declaration of Human Rights which states that "Everyone has the right to life, liberty and security of
person," and Article V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in
particular, Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and
Political Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics showing
that as of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have
abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means
that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice

that they have not executed anyone during the past ten (10) years or more, or in that they have made an
international commitment not to carry out executions, for a total of 99 countries which are total
abolitionists in law or practice, and 95 countries as retentionists; [16] and (e) Pope John Paul II's encyclical,
"Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.
On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred from exercising
judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of
carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3)
lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not
make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted,
and that the lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates
the International Covenant on Civil and Political Rights considering that the Philippines participated in the
deliberations of and voted for the Second Optional Protocol.
After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves
on the merits.
In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of
carrying out his death sentence by lethal injection on the following grounds: [18]
I.
DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING
AND INHUMAN PUNISHMENT.
II.
THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE
QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND
WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND
INHUMAN PUNISHMENT.
IV.
REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT
DIRECTOR.
V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS
DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT DIRECTOR.
VI.
RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER
REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN
PROMULGATING THE QUESTIONED RULES.
VII.

SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING


DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY RESPONDENT
SECRETARY OF THE POWER TO LEGISLATE.
VIII.
INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO
PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND
IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY INVALID AND
IMPLEMENTING RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass
constitutional muster for: (a) violation of the constitutional proscription against cruel, degrading or
inhuman punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of
legislative power, and (d) being discriminatory.
The Court shall now proceed to discuss these issues in seriatim.
I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER
SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.
The main challenge to R.A. 8177 and its implementing rules is anchored on Article III, Section 19 (1)
of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman"
punishment. "The prohibition in the Philippine Bill against cruel and unusual punishments is an AngloSaxon safeguard against governmental oppression of the subject, which made its first appearance in the
reign of William and Mary of England in 'An Act declaring the rights and liberties of the subject, and
settling the succession of the crown,' passed in the year 1689. It has been incorporated into the
Constitution of the United States (of America) and into most constitutions of the various States in
substantially the same language as that used in the original statute. The exact language of the
Constitution of the United States is used in the Philippine Bill." [19] "The counterpart of Section 19 (1) in the
1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment
inflicted.' xxx In the 1973 Constitution the phrase became 'cruel or unusual punishment.' The Bill of
Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting
'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in
penology. Consequently, the Committee reported out the present text which prohibits 'cruel, degrading or
inhuman punishment' as more consonant with the meaning desired and with jurisprudence on the
subject."[20]
Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman
punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out
lethal injection, the dosage for each drug to be administered, and the procedure in administering said
drug/s into the accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of the
execution, time of notification, the court which will fix the date of execution, which uncertainties cause the
greatest pain and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in
administering the drugs renders lethal injection inherently cruel.
Before the Court proceeds any further, a brief explanation of the process of administering lethal
injection is in order.
In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the
execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an
intravenous flow of saline solution. At the warden's signal, a lethal combination of drugs is injected into
the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium
thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that
paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two
drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used in
heart bypass surgery.[21]

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or
inhuman punishment.[22] In the oft-cited case of Harden v. Director of Prisons,[23] this Court held that
"[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not
cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of life." Would the lack in particularity then as
to the details involved in the execution by lethal injection render said law "cruel, degrading or
inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A.
No. 8177 are matters which are properly left to the competence and expertise of administrative officials. [24]
Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court" will fix the time
and date of execution, and the date of execution and time of notification of the death convict. As
petitioner already knows, the "court" which designates the date of execution is the trial court which
convicted the accused, that is, after this Court has reviewed the entire records of the case [26] and has
affirmed the judgment of the lower court. Thereupon, the procedure is that the "judgment is entered
fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to the court
below including a certified copy of the judgment for execution. [27] Neither is there any uncertainty as to the
date of execution nor the time of notification. As to the date of execution, Section 15 of the implementing
rules must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that
the death sentence shall be carried out "not earlier than one (1) year nor later then eighteen (18) months
from the time the judgment imposing the death penalty became final and executory, without prejudice to
the exercise by the President of his executive clemency powers at all times." Hence, the death convict is
in effect assured of eighteen (18) months from the time the judgment imposing the death penalty became
final and executory[28] wherein he can seek executive clemency [29] and attend to all his temporal and
spiritual affairs.[30]
Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the
intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and
untested person insofar as the choice and administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and
unsubstantiated.
First. Petitioner has neither alleged nor presented evidence that lethal injection required the
expertise only of phlebotomists and not trained personnel and that the drugs to be administered are
unsafe or ineffective.[31] Petitioner simply cites situations in the United States wherein execution by lethal
injection allegedly resulted in prolonged and agonizing death for the convict, [32] without any other evidence
whatsoever.
Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all
personnel involved in the execution proceedings should be trained prior to the performance of such
task. We must presume that the public officials entrusted with the implementation of the death penalty (by
lethal injection) will carefully avoid inflicting cruel punishment. [33]
Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of
death penalty and does not fall within the constitutional proscription against cruel, degrading and inhuman
punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since
punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of
course the Constitution does not mean that crime, for this reason, is to go unpunished." [34]The cruelty
against which the Constitution protects a convicted man is cruelty inherent in the method of punishment,
not the necessary suffering involved in any method employed to extinguish life humanely. [35] Numerous
federal and state courts of the United States have been asked to review whether lethal injections
constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoner's
Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two
sentences that lethal injection clearly is a constitutional form of execution. [36] A few jurisdictions, however,
have addressed the merits of the Eighth Amendment claims. Without exception, these courts have found
that lethal injection does not constitute cruel and unusual punishment. After reviewing the medical
evidence that indicates that improper doses or improper administration of the drugs causes severe pain
and that prison officials tend to have little training in the administration of the drugs, the courts have found
that the few minutes of pain does not rise to a constitutional violation. [37]

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public
opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society." [38] Indeed, "[o]ther (U.S.) courts have
focused on 'standards of decency' finding that the widespread use of lethal injections indicates that it
comports with contemporary norms." [39] the primary indicator of society's standard of decency with regard
to capital punishment is the response of the country's legislatures to the sanction. [40] Hence, for as long as
the death penalty remains in our statute books and meets the most stringent requirements provided by
the Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we
duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the mode of
carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of
petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL
TREATY OBLIGATIONS
Petitioner assiduously argues that the reimposition of the death penalty law violates our international
obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by
the General Assembly of the United Nations on December 16, 1996, signed and ratified by the Philippines
on December 19, 1966 and October 23, 1986,[41] respectively.
Article 6 of the International Covenant on Civil and Political Rights provides:
"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for
themost serious crimes in accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment
rendered by a competent court." (emphasis supplied)
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article
shall authorize any State Party to the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of
Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all-cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age
and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any
State. Party to the present Covenant."
Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6
(2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to
life, subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of
the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, State
parties to the Covenant are required to submit an initial report to the Committee on the measures they
have adopted which give effect to the rights recognized within the Covenant and on the progress made on
the enjoyment of those rights one year of its entry into force for the State Party concerned and thereafter,
after five years. On July 27, 1982, the Human Rights Committee issued General Comment No.
6interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State
parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in

particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider
reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the
death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6) that abolition
is desirable. xxx The Committee is of the opinion that the expression 'most serious crimes' must be read
restrictively to mean that the death penalty should be a quite exceptional measure." Further,
theSafeguards Guaranteeing Protection of Those Facing the Death Penalty [42] adopted by the Economic
and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should
not go beyond intentional crimes, with lethal or other extremely grave consequences.
The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the
General Assembly of the United Nations on December 16, 1966, and signed and ratified by the
Philippines on December 19, 1966 and August 22, 1989, [43] respectively. The Optional Protocolprovides
that the Human Rights Committee shall receive and consider communications from individuals claiming to
be victims of violations of any of the rights set forth in the Covenant.
On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December
15, 1989. The Philippines neither signed nor ratified said document.[44] Evidently, petitioner's
assertion of our obligation under the Second Optional Protocol is misplaced.
III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177 TO
THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS,
BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177
IS INVALID.
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in the framing of our Constitution. Each department of
the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within
its own sphere.[45] Corollary to the doctrine of separation of powers is the principle of non-delegation of
powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim:potestas delegata non delegari potest."[46] The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[47]
Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of
the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form
of delegation of legislative authority to administrative bodies.
The reason for delegation of authority to administrative agencies is the increasing complexity of the
task of government requiring expertise as well as the growing inability of the legislature to cope directly
with the myriad problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected to attend to by
itself. Specialization even in legislation has become necessary. On many problems involving day-to-day
undertakings, the legislature may not have the needed competence to provide the required direct and
efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates,
who are supposed to be experts in the particular fields assigned to them. [48]
Although Congress may delegate to another branch of the Government the power to fill in the details
in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the

policy to be executed, carried out or implemented by the delegate [49] - and (b) fix a standard - the limits of
which are sufficiently determinate or determinable - to which the delegate must conform in the
performance of his functions.[50]
Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying
out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to
do it, and what is the scope of his authority.[51]
R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map
out its boundaries, and specify the public agencies which will apply it. it indicates the circumstances
under which the legislative purpose may be carried out. [52] R.A. No. 8177 specifically requires that "[t]he
death sentence shall be executed under the authority of the Director of the Bureau of
Corrections,endeavoring so far as possible to mitigate the sufferings of the person under the
sentence during the lethal injection as well as during the proceedings prior to the
execution."[53] Further, "[t]he Director of the Bureau of Corrections shall take steps to ensure that the
lethal injection to be administered is sufficient to cause the instantaneous death of the
convict."[54] The legislature also mandated that "all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task."[55] The Court cannot see that any
useful purpose would be served by requiring greater detail. [56] The question raised is not the definition of
what constitutes a criminal offense, [57] but the mode of carrying out the penalty already imposed by the
Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of discretion by the
administrative officials concerned is, to use the words of Justice Benjamin Cardozo, canalized within
banks that keep it from overflowing.
Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of
Justice and the Director of the Bureau of Corrections under delegated legislative power is proper where
standards are formulated for the guidance and the exercise of limited discretion, which though general,
are capable of reasonable application.[58]
It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death
penalty by electrocution was not subjected to attack on the ground that it failed to provide for details such
as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment of
electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection
must fail.
A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power
from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under
the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department
of Justice.[59] Further, the Department of Justice is tasked, among others, to take charge of the
"administration of the correctional system." [60] Hence, the import of the phraseology of the law is that the
Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the Lethal
Injection Manual, in consultation with the Department of Health. [61]
However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that
could not be overlooked. To begin with, something basic appears missing in Section 19 of the
implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after
administering the lethal injection shall be set forth in a manual to be prepared by the Director. The
manual shall contain details of, among others, the sequence of events before and after execution;
procedures in setting up the intravenous line; the administration of the lethal drugs; the
pronouncement of death; and the removal of the intravenous system.
Said manual shall be confidential and its distribution shall be limited to authorized prison
personnel."

Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a veritable
vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the
execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review
and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of
Corrections could not promulgate a manual that would not bear the imprimatur of the administrative
superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent
abdication of departmental responsibility renders the said paragraph invalid.
As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the
contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment
for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are
matters of public concern "which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citizen." [62] Section 7 of
Article III of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transaction, or decisions, as well as to government research data used as a basis for policy
development, shall be afforded the citizen, subject to such limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of access to information of public concern is a
recognition of the essentiality of the free flow of ideas and information in a democracy.[63] In the same way
that free discussion enables members of society to cope with the exigencies of their time, [64] access to
information of general interest aids the people in democratic decision-making [65] by giving them a better
perspective of the vital issues confronting the nation. [66]
D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS
INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.
Even more seriously flawed than Section 19 is Section of the implementing rules which provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by
lethal injection shall not be inflicted upon a woman within the three years next following the date of
the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this
latter case, the death penalty shall be commuted to the penalty of reclusion perpetua with the
accessory penalties provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an
invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17
amends the instances when lethal injection may be suspended, without an express amendment of Article
83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659.
Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now reads as
follows:
"ART. 83, Suspension of the execution of the death sentence.- The death sentence shall not be
inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any
person over seventy years of age. In this last case, the death sentence shall be commuted to the
penalty of reclusion perpetua with the accessory penalty provided in Article 40. x x x".
On this point, the Courts finds petitioner's contention impressed with merit. While Article 83 of the
Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation
of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of
the implementing rules omits the one (1) year period following delivery as an instance when the death
sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83
of the Revised Penal Code as amended, which is the three-year reprieve after a woman is

sentenced. Thisaddition is, in petitioner's view, tantamount to a gender-based discrimination sans


statutory basis, while the omission is an impermissible contravention of the applicable law.
Being merely an implementing rule, Section 17 aforecited must not override, but instead remain
consistent and in harmony with the law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law." [67] An administrative
agency cannot amend an act of Congress. [68] In case of discrepancy between a provision of statute and a
rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause
in Section 17 which suspends the execution of a woman within the three (3) years next following the date
of sentence finds no supports in Article 83 of the Revised Penal Code as amended, perforce Section 17
must be declared invalid.
One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional insofar as it
delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice
and the Director of the Bureau of Corrections) and constitutes a violation of the international norm
towards the abolition of the death penalty. One member of the Court, consistent with his view in People v.
Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is itself
unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the
death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid
Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute
(Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare
Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute
(Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules
and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby
declaredINVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended
by Section 25 of the Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of
the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict and counsel. Respondents are
hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended,
revised and/or corrected in accordance with this Decision.
NO COSTS.
SO ORDERED.

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

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT


(PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as chairman of the
PCGG), respondents. GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON,
and TERESA A. JOPSON,petitioners-in-intervention.
DECISION
PANGANIBAN, J:
Petitioner asks this Court to define the nature and the extent of the peoples constitutional right to
information on matters of public concern. Does this right include access to the terms of government
negotiations prior to their consummation or conclusion? May the government, through the Presidential

Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the
General Agreement and Supplemental Agreement, both dated December 28, 1993 and executed
between the PCGG and the Marcos heirs, valid and binding?

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

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

This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have
not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at
all with the Marcoses, and would have disapproved them had they been submitted to me.
The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said
Agreements, which I reserve for myself as President of the Republic of the Philippines.
The assailed principal Agreement[6] reads:
GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by and between The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1,
2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its
Chairman referred to as the FIRST PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country
and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like
installation of power plants in selected rural areas and initiation of other community projects for the
empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December
21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain
conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final
judgment of conviction against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the
past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the
FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent
needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in
order to bind the nations wounds and start the process of rebuilding this nation as it goes on to the
twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one
another, whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree
as follows:

1. The parties will collate all assets presumed to be owned by, or held by other parties for the
benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered
by the settlement. The subject assets shall be classified by the nature thereof, namely: (a)
real estate; (b) jewelry; (c) paintings and other works of art; (d) securities; (e) funds on
deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets which could not
appropriately fall under any of the preceding classification. The list shall be based on the full
disclosure of the PRIVATE PARTY to insure its accuracy.
2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the
FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY. The assets
of the PRIVATE PARTY shall be net of, and exempt from, any form of taxes due the Republic
of the Philippines. However, considering the unavailability of all pertinent and relevant
documents and information as to balances and ownership, the actual specification of assets
to be retained by the PRIVATE PARTY shall be covered by supplemental agreements which
shall form part of this Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees,
nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in favor of
the FIRST PARTY. For this purpose, the parties shall cooperate in taking the appropriate
action, judicial and/or extrajudicial, to recover the same for the FIRST PARTY.
4. All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the
FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding
against said PARTY for use by the FIRST PARTY in withdrawing any account and/or
recovering any asset. The PRIVATE PARTY withdraws any objection to the withdrawal by
and/or release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of the $356
million, its accrued interests, and/or any other account; over which the PRIVATE PARTY
waives any right, interest or participation in favor of the FIRST PARTY. However, any
withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in
the presence of any authorized representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators,
lawyers, or any other party acting in similar capacity in behalf of the PRIVATE PARTY are
hereby informed through this General Agreement to insure that it is fully implemented and
this shall serve as absolute authority from both parties for full disclosure to the FIRST
PARTY of said assets and for the FIRST PARTY to withdraw said account and/or assets and
any other assets which the FIRST PARTY on its own or through the help of the PRIVATE
PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is
being held by another for the benefit of the PRIVATE PARTY and which is not included in the
list per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the
PRIVATE PARTY in accordance with No. 4 above, waives any right thereto.
7. This Agreement shall be binding on, and inure to the benefit of, the parties and their
respective legal representatives, successors and assigns and shall supersede any other
prior agreement.
8. The PARTIES shall submit this and any other implementing Agreements to the President of
the Philippines for approval. In the same manner, the PRIVATE PARTY shall provide the
FIRST PARTY assistance by way of testimony or deposition on any information it may have
that could shed light on the cases being pursued by the FIRST PARTY against other
parties. The FIRST PARTY shall desist from instituting new suits already subject of this
Agreement against the PRIVATE PARTY and cause the dismissal of all other cases pending
in the Sandiganbayan and in other courts.
9. In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the
PARTIES shall be restored automatically to the status quo ante the signing of this
Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina,
Jr., as their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in
Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA.
IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., &
IRENE MARCOS-ARANETA
By:
[Sgd.]IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR.[7]
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Petitioner also denounces this supplement to the above Agreement: [8]
SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by and between -The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1,
2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its
Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:

The parties in this case entered into a General Agreement dated Dec. 28, 1993;
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local
assets located in the Philippines against parties other than the FIRST PARTY.
The parties hereby agree that all expenses related to the recovery and/or withdrawal of all
assets including lawyers fees, agents fees, nominees service fees, bank charges, traveling
expenses and all other expenses related thereto shall be for the account of the PRIVATE
PARTY.
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to
the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss
deposits.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in
Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA.
IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., &
IRENE MARCOS-ARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR.[9]
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order [10] dated March 23,
1998, enjoining respondents, their agents and/or representatives from entering into, or perfecting and/or
executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and
concerning their ill-gotten wealth.

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues:
(a) Procedural:
(1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and
(2) Whether or not this Court is the proper court before which this action may be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to the public the details of any
agreement, perfected or not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a compromise agreement between the
Marcoses and the PCGG relative to the Marcoses ill-gotten wealth. [11]
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court
a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are among
the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized
by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class
Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16,
1994 and the Decision of the Swiss Supreme Court of December 10, 1997. As such, they claim to have
personal and direct interest in the subject matter of the instant case, since a distribution or disposition of
the Marcos properties may adversely affect their legitimate claims. In a minute Resolution issued on
August 24, 1998, the Court granted their motion to intervene and required the respondents to comment
thereon. The September 25, 1998 Comment[12] of the solicitor general on said motion merely reiterated
his aforecited arguments against the main petition. [13]

The Courts Ruling


The petition is imbued with merit.

First Procedural Issue: Petitioners Standing


Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to
file the instant petition. He submits that since ill-gotten wealth belongs to the Filipino people and [is], in
truth and in fact, part of the public treasury, any compromise in relation to it would constitute a diminution
of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial,
recovery of such assets.
Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an
issue of transcendental importance to the public. He asserts that ordinary taxpayers have a right to
initiate and prosecute actions questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are of paramount public interest; and if they immeasurably affect
the social, economic, and moral well-being of the people.
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, [14] such as in this case. He invokes several

decisions[15] of this Court which have set aside the procedural matter of locus standi, when the subject of
the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no
standing to institute the present action, because no expenditure of public funds is involved and said
petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant
petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such
negotiations and agreements; or that, if he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his
legal standing to institute the instant petition. Access to public documents and records is a public right,
and the real parties in interest are the people themselves. [16]
In Taada v. Tuvera,[17] the Court asserted that when the issue concerns a public right and the object
of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of
the laws, he need not show that he has any legal or special interest in the result of the action. [18] In the
aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, [19] in connection with the rule that
laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners legal standing, the Court declared that the right they sought to
be enforced is a public right recognized by no less than the fundamental law of the land.
Legaspi v. Civil Service Commission, [20] while reiterating Taada, further declared that when
amandamus proceeding involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general public which
possesses the right.[21]
Further, in Albano v. Reyes,[22] we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, the management and the operation of the
Manila International Container Terminal, public interest [was] definitely involved considering the important
role [of the subject contract] x x x in the economic development of the country and the magnitude of the
financial consideration involved. We concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioners standing.
Similarly, the instant petition is anchored on the right of the people to information and access to
official records, documents and papers -- a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the
two basic requisites laid down by decisional law to sustain petitioners legal standing, i.e. (1) the
enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be
allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention
of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the
Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a
legal interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses
ill-gotten properties may adversely affect the satisfaction of their claims.

Second Procedural Issue:The Courts Jurisdiction


Petitioner asserts that because this petition is an original action for mandamus and one that is not
intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was
proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court
original jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought
before this Court, since there is neither a justiciable controversy nor a violation of petitioners rights by the
PCGG. He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil
Case No. 0141, which has yet to dispose of the issue; thus, this petition is premature. Furthermore,
respondents themselves have opposed the Marcos heirs motion, filed in the graft court, for the approval
of the subject Agreements. Such opposition belies petitioners claim that the government, through
respondents, has concluded a settlement with the Marcoses as regards their alleged ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners resort to a mandamus proceeding, seeking to
enforce a public right as well as to compel performance of a public duty mandated by no less than the
fundamental law.[23] Further, Section 5, Article VIII of the Constitution, expressly confers upon the
Supreme
Court original jurisdiction
over
petitions
for certiorari, prohibition, mandamus, quo
warrantoand habeas corpus.
Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending
resolution. There may seem to be some merit in such argument, if petitioner is merely seeking to enjoin
the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms
contained in said Agreements. However, petitioner is here seeking the public disclosure of all
negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos heirs.
In other words, this petition is not confined to the Agreements that have already been drawn, but
likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos
loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin
constitutional provisions on public transactions. This broad and prospective relief sought by the instant
petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:


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

some of the recognized restrictions: (1) national security matters and intelligence information, (2) trade
secrets and banking transactions, (3) criminal matters, and (4) other confidential information.

Limitations to the Right: (1) National Security Matters


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

(2) Trade Secrets and Banking Transactions


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

(3) Criminal Matters


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

(4) Other Confidential Information


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

Scope: Matters of Public Concern and Transactions Involving Public Interest


In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the information sought must be matters of
public concern, access to which may be limited by law. Similarly, the state policy of full public disclosure
extends only to transactions involving public interest and may also be subject to reasonable

conditions prescribed by law. As to the meanings of the terms public interest and public concern, the
Court, in Legaspi v. Civil Service Commission,[35] elucidated:
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. Public concern like public interest is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
Considered a public concern in the above-mentioned case was the legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who are
eligibles. So was the need to give the general public adequate notification of various laws that regulate
and affect the actions and conduct of citizens, as held in Taada. Likewise did the public nature of the
loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa) qualify the information sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato,[36] the Court also held that official acts of public officers done in
pursuit of their official functions are public in character; hence, the records pertaining to such official acts
and decisions are within the ambit of the constitutional right of access to public records.
Under Republic Act No. 6713, public officials and employees are mandated to provide information
on their policies and procedures in clear and understandable language, [and] ensure openness of
information, public consultations and hearings whenever appropriate x x x, except when otherwise
provided by law or when required by the public interest. In particular, the law mandates free public
access, at reasonable hours, to the annual performance reports of offices and agencies of government
and government-owned or controlled corporations; and the statements of assets, liabilities and financial
disclosures of all public officials and employees.[37]
In general, writings coming into the hands of public officers in connection with their official functions
must be accessible to the public, consistent with the policy of transparency of governmental affairs. This
principle is aimed at affording the people an opportunity to determine whether those to whom they have
entrusted the affairs of the government are honestly, faithfully and competently performing their functions
as public servants.[38] Undeniably, the essence of democracy lies in the free flow of thought; [39] but
thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited
exchange of ideas among a well-informed public that a government remains responsive to the changes
desired by the people.[40]

The Nature of the Marcoses Alleged Ill-Gotten Wealth


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

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

Access to Information on Negotiating Terms


But does the constitutional provision likewise guarantee access to information
regarding ongoingnegotiations or proposals prior to the final agreement? This same clarification was
sought and clearly addressed by the constitutional commissioners during their deliberations, which we
quote hereunder:[43]
MR. SUAREZ. And when we say transactions which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation
of the contract, or does he refer to the contract itself?
MR. OPLE. The transactions used here, I suppose, is generic and, therefore, it can cover both steps
leading to a contract, and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the
transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national interest.
Considering the intent of the framers of the Constitution, we believe that it is incumbent upon
the PCGG and its officers, as well as other government representatives, to disclose sufficient
public information on any proposed settlement they have decided to take up with the ostensible
owners and holders of ill-gotten wealth. Such information, though, must pertain to definite
propositions of the government, not necessarily to intra-agency or inter-agency recommendations or
communications[44]during the stage when common assertions are still in the process of being formulated
or are in the exploratory stage. There is a need, of course, to observe the same restrictions on

disclosure of information in general, as discussed earlier -- such as on matters involving national security,
diplomatic or foreign relations, intelligence and other classified information.

Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise


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

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

Effect of Compromise on Civil Actions


One of the consequences of a compromise, and usually its primary object, is to avoid or to end a
litigation.[49] In fact, the law urges courts to persuade the parties in a civil case to agree to a fair
settlement.[50] As an incentive, a court may mitigate damages to be paid by a losing party who shows a
sincere desire to compromise.[51]
In Republic & Campos Jr. v. Sandiganbayan,[52] which affirmed the grant by the PCGG of civil and
criminal immunity to Jose Y. Campos and family, the Court held that in the absence of an express
prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG
cases. Such principle is pursuant to the objectives of EO No. 14, particularly the just and expeditious
recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle
was upheld inBenedicto v. Board of Administrators of Television Stations RPN, BBC and
IBC[53] and Republic v. Benedicto,[54] which ruled in favor of the validity of the PCGG compromise
agreement with Roberto S. Benedicto.

Immunity from Criminal Prosecution


However, any
compromise
relating
to
the
civil
liability
arising
from
an
offense does not automatically terminate the criminal proceeding against or extinguish the
criminal liability of the malefactor.[55] While a compromise in civil suits is expressly authorized by law,
there is no similar general sanction as regards criminal liability. The authority must be specifically
conferred. In the present case, the power to grant criminal immunity was conferred on PCGG by Section
5 of EO No. 14, as amended by EO No. 14-A, which provides:

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

Validity of the PCGG-Marcos Compromise Agreements


Going now to the subject General and Supplemental Agreements between the PCGG and the
Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not conform
to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section
5 cannot be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten
wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable
mainly to witnesses who provide information or testify against a respondent, defendant or accused in an
ill-gotten wealth case.
While the General Agreement states that the Marcoses shall provide the [government] assistance by
way of testimony or deposition on any information [they] may have that could shed light on the cases
being pursued by the [government] against other parties, [57] the clause does not fully comply with the
law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro
formacompliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that
any of the Marcos heirs has indeed provided vital information against any respondent or defendant as to
the manner in which the latter may have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of
taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Constitution. The
power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local
legislative bodies.[58] Section 28 (4), Article VI of the Constitution, specifically provides: No law granting
any tax exemption shall be passed without the concurrence of a majority of all the Members of the
Congress. The PCGG has absolutely no power to grant tax exemptions, even under the cover of
its authority to compromise ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their
properties, such law will definitely not pass the test of the equal protection clause under the Bill of
Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class
legislation. It will also violate the constitutional rule that taxation shall be uniform and equitable. [59]

Neither can the stipulation be construed to fall within the power of the commissioner of internal
revenue to compromise taxes. Such authority may be exercised only when (1) there
is reasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayers financial
position demonstrates a clear inability to pay.[60] Definitely, neither requisite is present in the case of the
Marcoses, because under the Agreement they are effectively conceding the validity of the claims against
their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall
within the power of the commissioner to abate or cancel a tax liability. This power can be exercised only
when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and collection
costs involved do not justify the collection of the tax due. [61] In this instance, the cancellation of tax liability
is done even before the determination of the amount due. In any event, criminal violations of the Tax
Code, for which legal actions have been filed in court or in which fraud is involved, cannot be
compromised.[62]
Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other courts. [63] This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed
before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full
discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound discretion of the
government prosecutor;[64] but the court decides, based on the evidence proffered, in what manner it will
dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by
the justice secretary, to withdraw the information or to dismiss the complaint. [65] The prosecutions motion
to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require
the trial court to make its own evaluation of the merits of the case, because granting such motion is
equivalent to effecting a disposition of the case itself. [66]
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee
the dismissal of all such criminal cases against the Marcoses pending in the courts, for said
dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, whether past, present, or future,
matured or inchoate, against the Marcoses.[67] Again, this all-encompassing stipulation is contrary to
law. Under the Civil Code, an action for future fraud may not be waived. [68] The stipulation in the
Agreement does not specify the exact scope of future claims against the Marcoses that the government
thereby relinquishes. Such vague and broad statement may well be interpreted to include all future
illegal acts of any of the Marcos heirs, practically giving them a license to perpetrate fraud against the
government without any liability at all. This is a palpable violation of the due process and equal protection
guarantees of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also
sets a dangerous precedent for public accountability. It is a virtual warrant for public officials to
amass public funds illegally, since there is an open option to compromise their liability in
exchange for only a portion of their ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which the parties
shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of
their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which assets shall
be forfeited by the government and which shall be retained by the Marcoses. While the Supplemental
Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits
(less government recovery expenses), such sharing arrangement pertains only to the said deposits. No
similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an
arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of
the Anti-Graft and Corrupt Practices Act,[69] invite their indictment for corruption under the said law.
Finally, the absence of then President Ramos approval of the principal Agreement, an express
condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed
above, even if such approval were obtained, the Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and
Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the
Marcos heirs, are violative of the Constitution and the laws aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements dated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND
VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and all government
functionaries
and
officials
who
are
or
may
be
directly or indirectly involved in the recovery of the alleged ill-gotten wealth of the Marcoses and their
associates are DIRECTED to disclose to the public the terms of any proposed compromise settlement, as
well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions
embodied in this Decision. No pronouncement as to costs.
SO ORDERED.

[G.R. No. 133250. July 9, 2002]

FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY
DEVELOPMENT CORPORATION, respondents.
DECISION
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order. The petition seeks to compel the Public Estates Authority (PEA for brevity)
to disclose all facts on PEAs then on-going renegotiations with Amari Coastal Bay and Development
Corporation (AMARI for brevity) to reclaim portions of Manila Bay. The petition further seeks to enjoin
PEA from signing a new agreement with AMARI involving such reclamation.

The Facts
On November 20, 1973, the government, through the Commissioner of Public Highways, signed a
contract with the Construction and Development Corporation of the Philippines (CDCP for brevity) to
reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the construction
of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in
consideration of fifty percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA to reclaim land, including foreshore and submerged areas, and
to develop, improve, acquire, x x x lease and sell any and all kinds of lands. [1] On the same date, then
President Marcos issued Presidential Decree No. 1085 transferring to PEA the lands reclaimed in the
foreshore and offshore of the Manila Bay [2]under the Manila-Cavite Coastal Road and Reclamation
Project (MCCRRP).
On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that [A]ll future works in MCCRRP x x x shall be funded and owned by
PEA. Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29, 1981,
which stated:

(i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as may be
agreed upon by the parties, to be paid according to progress of works on a unit price/lump sum basis for
items of work to be agreed upon, subject to price escalation, retention and other terms and conditions
provided for in Presidential Decree No. 1594. All the financing required for such works shall be provided
by PEA.
xxx
(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of
PEA, all of the rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by
CDCP in the MCCRRP as of December 30, 1981 which have not yet been sold, transferred or otherwise
disposed of by CDCP as of said date, which areas consist of approximately Ninety-Nine Thousand Four
Hundred Seventy Three (99,473) square meters in the Financial Center Area covered by land pledge No.
5 and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight
(3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level located
outside the Financial Center Area and the First Neighborhood Unit. [3]
On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand eight
hundred ninety four (1,915,894) square meters. Subsequently, on April 9, 1988, the Register of Deeds of
the Municipality of Paraaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the
name of PEA, covering the three reclaimed islands known as the Freedom Islands located at the
southern portion of the Manila-Cavite Coastal Road, Paraaque City. The Freedom Islands have a total
land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and Forty One (1,578,441)
square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement (JVA for brevity) with AMARI, a
private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these islands to complete the configuration in
the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered
into the JVA through negotiation without public bidding. [4] On April 28, 1995, the Board of Directors of
PEA, in its Resolution No. 1245, confirmed the JVA. [5] On June 8, 1995, then President Fidel V. Ramos,
through then Executive Secretary Ruben Torres, approved the JVA. [6]
On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the
Senate and denounced the JVA as the grandmother of all scams. As a result, the Senate Committee on
Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers
and Investigations, conducted a joint investigation. The Senate Committees reported the results of their
investigation in Senate Committee Report No. 560 dated September 16, 1997. [7] Among the conclusions
of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the
public domain which the government has not classified as alienable lands and therefore PEA cannot
alienate these lands; (2) the certificates of title covering the Freedom Islands are thus void, and (3) the
JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No.
365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee
Report No. 560. The members of the Legal Task Force were the Secretary of Justice, [8] the Chief
Presidential Legal Counsel,[9] and the Government Corporate Counsel.[10] The Legal Task Force upheld
the legality of the JVA, contrary to the conclusions reached by the Senate Committees. [11]
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were ongoing renegotiations between PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired
Navy Officer Sergio Cruz composed the negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application
for the Issuance of a Temporary Restraining Order and Preliminary Injunctiondocketed as G.R. No.
132994 seeking to nullify the JVA. The Court dismissed the petition for unwarranted disregard of judicial
hierarchy, without prejudice to the refiling of the case before the proper court. [12]
On April 27, 1998, petitioner Frank I. Chavez (Petitioner for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in the
sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of
any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987
Constitution on the right of the people to information on matters of public concern. Petitioner assails the
sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII of the 1987
Constitution prohibiting the sale of alienable lands of the public domain to private corporations. Finally,
petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of
public dominion.
After several motions for extension of time, [13] PEA and AMARI filed their Comments on October 19,
1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus
Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance
of a temporary restraining order; and (c) to set the case for hearing on oral argument. Petitioner filed a
Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution
dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the
parties to file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement (Amended
JVA, for brevity). On May 28, 1999, the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
constitutional and statutory grounds the renegotiated contract be declared null and void. [14]

The Issues
The issues raised by petitioner, PEA[15] and AMARI[16] are as follows:
I.

WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND
ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION
ADMINISTRATIVE REMEDIES;

MERITS

DISMISSAL

FOR

NON-EXHAUSTION

OF

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;


V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL
INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR
THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE
RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.

The Courts Ruling


First issue: whether the principal reliefs prayed for in the petition are moot and academic
because of subsequent events.
The petition prays that PEA publicly disclose the terms and conditions of the on-going negotiations
for a new agreement. The petition also prays that the Court enjoin PEA from privately entering into,
perfecting and/or executing any new agreement with AMARI.
PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner
on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed upon in
the renegotiations. Thus, PEA has satisfied petitioners prayer for a public disclosure of the
renegotiations. Likewise, petitioners prayer to enjoin the signing of the Amended JVA is now moot
because PEA and AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the
Office of the President has approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking
the signing and approval of the Amended JVA before the Court could act on the issue. Presidential
approval does not resolve the constitutional issue or remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President
cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to
implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional
grounds necessarily includes preventing its implementation if in the meantime PEA and AMARI have
signed one in violation of the Constitution. Petitioners principal basis in assailing the renegotiation of the
JVA is its violation of Section 3, Article XII of the Constitution, which prohibits the government from
alienating lands of the public domain to private corporations. If the Amended JVA indeed violates the
Constitution, it is the duty of the Court to enjoin its implementation, and if already implemented, to annul
the effects of such unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a single
private corporation. It now becomes more compelling for the Court to resolve the issue to insure the
government itself does not violate a provision of the Constitution intended to safeguard the national
patrimony. Supervening events, whether intended or accidental, cannot prevent the Court from rendering
a decision if there is a grave violation of the Constitution. In the instant case, if the Amended JVA runs
counter to the Constitution, the Court can still prevent the transfer of title and ownership of alienable lands
of the public domain in the name of AMARI. Even in cases where supervening events had made the
cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and the public. [17]
Also, the instant petition is a case of first impression. All previous decisions of the Court involving
Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution,
[18]
covered agricultural lands sold to private corporations which acquired the lands from private
parties. The transferors of the private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles [19] under Title II of Commonwealth Act. 141 (CA No. 141 for
brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and
submerged areas for non-agricultural purposes by purchaseunder PD No. 1084 (charter of PEA)
and Title III of CA No. 141. Certain undertakings by AMARI under the Amended JVA constitute the
consideration for the purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles
because the lands covered by the Amended JVA are newly reclaimed or still to be reclaimed. Judicial
confirmation of imperfect title requires open, continuous, exclusive and notorious occupation of
agricultural lands of the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the
deadline for filing applications for judicial confirmation of imperfect title expired on December 31, 1987. [20]

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because
of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed
lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latters seventy percent
proportionate share in the reclaimed areas as the reclamation progresses. The Amended JVA even
allows AMARI to mortgage at any time the entirereclaimed area to raise financing for the reclamation
project.[21]

Second issue: whether the petition merits dismissal for failing to observe the principle governing
the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it is
not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however,
raises constitutional issues of transcendental importance to the public. [22] The Court can resolve this case
without determining any factual issue related to the case. Also, the instant case is a petition
for mandamus which falls under the originaljurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioners direct resort to the
Court violates the principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary course
of law.
PEA distinguishes the instant case from Taada v. Tuvera[23] where the Court granted the petition
for mandamus even if the petitioners there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in Taada, the Executive Department had
an affirmative statutory duty under Article 2 of the Civil Code[24]and Section 1 of Commonwealth Act No.
638[25] to publish the presidential decrees. There was, therefore, no need for the petitioners in Taada to
make an initial demand from the Office of the President. In the instant case, PEA claims it has no
affirmative statutory duty to disclose publicly information about its renegotiation of the JVA. Thus, PEA
asserts that the Court must apply the principle of exhaustion of administrative remedies to the instant
case in view of the failure of petitioner here to demand initially from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by PEA, a government
corporation. Under Section 79 of the Government Auditing Code, [26]2 the disposition of government lands
to private parties requires public bidding. PEA was under a positive legal duty to disclose to the
public the terms and conditions for the sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone. PEA failed to make this public disclosure
because the original JVA, like the Amended JVA, was the result of a negotiated contract, not of a public
bidding. Considering that PEA had an affirmative statutory duty to make the public disclosure, and was
even in breach of this legal duty, petitioner had the right to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative
remedies does not apply when the issue involved is a purely legal or constitutional question. [27] The
principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of the
constitutional ban prohibiting the alienation of lands of the public domain to private corporations. We rule
that the principle of exhaustion of administrative remedies does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his
constitutional right to information without a showing that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will suffer any
concrete injury because of the signing or implementation of the Amended JVA. Thus, there is no actual
controversy requiring the exercise of the power of judicial review.
The petitioner has standing to bring this taxpayers suit because the petition seeks to compel PEA to
comply with its constitutional duties. There are two constitutional issues involved here. First is the right of
citizens to information on matters of public concern. Second is the application of a constitutional provision
intended to insure the equitable distribution of alienable lands of the public domain among Filipino
citizens. The thrust of the first issue is to compel PEA to disclose publicly information on the sale of
government lands worth billions of pesos, information which the Constitution and statutory law mandate
PEA to disclose. The thrust of the second issue is to prevent PEA from alienating hundreds of hectares of
alienable lands of the public domain in violation of the Constitution, compelling PEA to comply with a
constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public. In Chavez v.
PCGG,[28] the Court upheld the right of a citizen to bring a taxpayers suit on matters of transcendental
importance to the public, thus Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue
of transcendental importance to the public. He asserts that ordinary taxpayers have a right to initiate and
prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if
the issues raised are of paramount public interest, and if they immediately affect the social, economic
and moral well being of the people.
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of
this Court which have set aside the procedural matter of locus standi, when the subject of the case
involved public interest.
xxx
In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of
the laws, he need not show that he has any legal or special interest in the result of the action. In the
aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws
in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to
be enforced is a public right recognized by no less than the fundamental law of the land.
Legaspi v. Civil Service Commission, while reiterating Taada, further declared that when a mandamus
proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right.
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved
under the questioned contract for the development, management and operation of the Manila
International Container Terminal, public interest [was] definitely involved considering the important role [of
the subject contract] . . . in the economic development of the country and the magnitude of the financial

consideration involved. We concluded that, as a consequence, the disclosure provision in the


Constitution would constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to information and access to official
records, documents and papers a right guaranteed under Section 7, Article III of the 1987 Constitution.
Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic
requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a
public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed.
We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional
rights - to information and to the equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on ongoing negotiations before a final agreement.
Section 7, Article III of the Constitution explains the peoples right to information on matters of public
concern in this manner:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied)
The State policy of full transparency in all transactions involving public interest reinforces the peoples
right to information on matters of public concern. This State policy is expressed in Section 28, Article II of
the Constitution, thus:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest. (Emphasis supplied)
These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to exercise effectively
other constitutional rights. These twin provisions are essential to the exercise of freedom of
expression. If the government does not disclose its official acts, transactions and decisions to citizens,
whatever citizens say, even if expressed without any restraint, will be speculative and amount to
nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to
the people,[29] for unless citizens have the proper information, they cannot hold public officials
accountable for anything. Armed with the right information, citizens can participate in public discussions
leading to the formulation of government policies and their effective implementation. An informed
citizenry is essential to the existence and proper functioning of any democracy. As explained by the
Court in Valmonte v. Belmonte, Jr.[30]
An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive and be
responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating thereto can such bear fruit.
PEA asserts, citing Chavez v. PCGG,[31] that in cases of on-going negotiations the right to
information is limited to definite propositions of the government. PEA maintains the right does not

include access to intra-agency or inter-agency recommendations or communications during the stage


when common assertions are still in the process of being formulated or are in the exploratory stage.
Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the
closing of the transaction. To support its contention, AMARI cites the following discussion in the 1986
Constitutional Commission:
Mr. Suarez. And when we say transactions which should be distinguished from contracts, agreements,
or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the
contract, or does he refer to the contract itself?
Mr. Ople: The transactions used here, I suppose is generic and therefore, it can cover both steps
leading to a contract and already a consummated contract, Mr. Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the
transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.
Mr. Suarez: Thank you.[32] (Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner can invoke the
right. Requiring government officials to reveal their deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies. Government officials will hesitate to express their
real sentiments during deliberations if there is immediate public dissemination of their discussions, putting
them under all kinds of pressure before they decide.
We must first distinguish between information the law on public bidding requires PEA to disclose
publicly, and information the constitutional right to information requires PEA to release to the
public. Before the consummation of the contract, PEA must, on its own and without demand from
anyone, disclose to the public matters relating to the disposition of its property. These include the size,
location, technical description and nature of the property being disposed of, the terms and conditions of
the disposition, the parties qualified to bid, the minimum price and similar information. PEA must prepare
all these data and disclose them to the public at the start of the disposition process, long before the
consummation of the contract, because the Government Auditing Code requires public bidding. If PEA
fails to make this disclosure, any citizen can demand from PEA this information at any time during the
bidding process.
Information, however, on on-going evaluation or review of bids or proposals being undertaken by
the bidding or review committee is not immediately accessible under the right to information. While the
evaluation or review is still on-going, there are no official acts, transactions, or decisions on the bids or
proposals. However, once the committee makes itsofficial recommendation, there arises a definite
proposition on the part of the government. From this moment, the publics right to information attaches,
and any citizen can access all the non-proprietary information leading to such definite
proposition. In Chavez v. PCGG,[33] the Court ruled as follows:
Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG
and its officers, as well as other government representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the exploratory stage. There is
need, of course, to observe the same restrictions on disclosure of information in general, as discussed
earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and
other classified information. (Emphasis supplied)

Contrary to AMARIs contention, the commissioners of the 1986 Constitutional Commission


understood that the right to information contemplates inclusion of negotiations leading to the
consummation of the transaction. Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes a fait accompli. This negates the
State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating in
the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed policy of full disclosure of all its transactions involving public interest.
The right covers three categories of information which are matters of public concern, namely: (1)
official records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3)
government research data used in formulating policies. The first category refers to any document that is
part of the public records in the custody of government agencies or officials. The second category refers
to documents and papers recording, evidencing, establishing, confirming, supporting, justifying or
explaining official acts, transactions or decisions of government agencies or officials. The third category
refers to research data, whether raw, collated or processed, owned by the government and used in
formulating government policies.
The information that petitioner may access on the renegotiation of the JVA includes evaluation
reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and other
documents attached to such reports or minutes, all relating to the JVA. However, the right to information
does not compel PEA to prepare lists, abstracts, summaries and the like relating to the renegotiation of
the JVA.[34] The right only affords access to records, documents and papers, which means the opportunity
to inspect and copy them. One who exercises the right must copy the records, documents and papers at
his expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of
the public records and to minimize disruption to government operations, like rules specifying when and
how to conduct the inspection and copying. [35]
The right to information, however, does not extend to matters recognized as privileged information
under the separation of powers.[36] The right does not also apply to information on military and diplomatic
secrets, information affecting national security, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused, which courts have long recognized as
confidential.[37] The right may also be subject to other limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by petitioner is privileged information rooted
in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of
the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, [38] are
recognized as confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power.[39] This is not the situation in the instant
case.
We rule, therefore, that the constitutional right to information includes official information onon-going
negotiations before a final contract. The information, however, must constitute definite propositions by
the government and should not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public order. [40] Congress has also
prescribed other limitations on the right to information in several legislations. [41]

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine


The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian
doctrine which holds that the State owns all lands and waters of the public domain. Upon the Spanish
conquest of the Philippines, ownership of all lands, territories and possessions in the Philippines passed
to the Spanish Crown.[42] The King, as the sovereign ruler and representative of the people, acquired and
owned all lands and territories in the Philippines except those he disposed of by grant or sale to private
individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
State, in lieu of the King, as the owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land ownership that all lands that were not
acquired from the Government, either by purchase or by grant, belong to the public domain. [43] Article 339
of the Civil Code of 1889, which is now Article 420 of the Civil Code of 1950, incorporated the Regalian
doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and
disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission enacted
Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. Later, on November 29, 1919, the Philippine Legislature approved Act
No. 2874, the Public Land Act, which authorized the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. On November 7, 1936, the National Assembly passed
Commonwealth Act No. 141, also known as the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. CA No. 141 continues
to this day as the general law governing the classification and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the
maritime zone of the Spanish territory belonged to the public domain for public use. [44]The Spanish Law of
Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as follows:
Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the
provinces, pueblos or private persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the grant of authority.
Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking the
reclamation, provided the government issued the necessary permit and did not reserve ownership of the
reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public dominion as follows:
Art. 339. Property of public dominion is
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as
walls, fortresses, and other works for the defense of the territory, and mines, until granted to
private individuals.
Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only to those
authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also to property
not so used but employed to develop the national wealth. This class of property constituted property of
public dominion although employed for some economic or commercial activity to increase the national
wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into
private property, to wit:
Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of the
territory, shall become a part of the private property of the State.
This provision, however, was not self-executing. The legislature, or the executive department pursuant to
law, must declare the property no longer needed for public use or territorial defense before the
government could lease or alienate the property to private parties. [45]
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of
reclaimed and foreshore lands. The salient provisions of this law were as follows:
Section 1. The control and disposition of the foreshore as defined in existing law, and thetitle to all
Government or public lands made or reclaimed by the Government by dredging or filling or
otherwise throughout the Philippine Islands, shall be retained by the Governmentwithout prejudice to
vested rights and without prejudice to rights conceded to the City of Manila in the Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made or reclaimed
by the Government by dredging or filling or otherwise to be divided into lots or blocks, with the necessary
streets and alleyways located thereon, and shall cause plats and plans of such surveys to be prepared
and filed with the Bureau of Lands.
(b) Upon completion of such plats and plans the Governor-General shall give notice to the public that
such parts of the lands so made or reclaimed as are not needed for public purposes will be leased
for commercial and business purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of to the highest and best biddertherefore,
subject to such regulations and safeguards as the Governor-General may by executive order prescribe.
(Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all lands reclaimed by the
government. The Act also vested in the government control and disposition of foreshore lands. Private
parties could lease lands reclaimed by the government only if these lands were no longer needed for
public purpose. Act No. 1654 mandated public bidding in the lease of government reclaimed lands. Act
No. 1654 made government reclaimed lands sui generis in that unlike other public lands which the
government could sell to private parties, these reclaimed lands were available only for lease to private
parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654
did not prohibit private parties from reclaiming parts of the sea under Section 5 of the Spanish Law of
Waters. Lands reclaimed from the sea by private parties with government permission remained private
lands.
Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act. [46] The
salient provisions of Act No. 2874, on reclaimed lands, were as follows:
Sec. 6. The Governor-General, upon the recommendation of the Secretary of Agriculture and
Natural Resources, shall from time to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of alienable or disposable public lands, the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall from time to time declare what lands are open to disposition or concession
under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall be
classified as suitable for residential purposes or for commercial, industrial, or other productive
purposes other than agricultural purposes, and shall be open to disposition or concession, shall be
disposed of under the provisions of this chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable
lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be disposed of to
private parties by lease only and not otherwise, as soon as the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural Resources,shall declare that the
same are not necessary for the public service and are open to disposition under this chapter. The
lands included in class (d) may be disposed of by sale or lease under the provisions of this
Act. (Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to classify lands of the public domain
into x x x alienable or disposable[47] lands. Section 7 of the Act empowered the Governor-General to
declare what lands are open to disposition or concession. Section 8 of the Act limited alienable or
disposable lands only to those lands which have been officially delimited and classified.
Section 56 of Act No. 2874 stated that lands disposable under this title [48] shall be classified as
government reclaimed, foreshore and marshy lands, as well as other lands. All these lands, however,
must
be
suitable
for
residential,
commercial,
industrial
or
other
productivenonagricultural purposes. These provisions vested upon the Governor-General the power to classify
inalienable lands of the public domain into disposable lands of the public domain. These provisions also
empowered the Governor-General to classify further such disposable lands of the public domain into
government reclaimed, foreshore or marshy lands of the public domain, as well as other non-agricultural
lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain
classified as government reclaimed, foreshore and marshy lands shall be disposed of to private
parties by lease only and not otherwise. The Governor-General, before allowing the lease of these

lands to private parties, must formally declare that the lands were not necessary for the public
service. Act No. 2874 reiterated the State policy to lease and not to sell government reclaimed,
foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No.
1654. Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable
or disposable lands of the public domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service. This
is the reason the government prohibited the sale, and only allowed the lease, of these lands to private
parties. The State always reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy
lands into other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were the
only lands for non-agricultural purposes the government could sell to private parties. Thus, under Act No.
2874, the government could not sell government reclaimed, foreshore and marshy lands to private
parties, unless the legislature passed a law allowing their sale.[49]
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of
the Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with government
permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The
1935 Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that
Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural resources,
with the exception of public agricultural land, shall not be alienated, and no license, concession, or
lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and limit of the grant. (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except public agricultural lands,
which were the only natural resources the State could alienate. Thus, foreshore lands, considered part of
the States natural resources, became inalienable by constitutional fiat, available only for lease for 25
years, renewable for another 25 years. The government could alienate foreshore lands only after these
lands were reclaimed and classified as alienable agricultural lands of the public domain. Government
reclaimed and marshy lands of the public domain, being neither timber nor mineral lands, fell under the
classification of public agricultural lands. [50] However, government reclaimed and marshy lands, although
subject to classification as disposable public agricultural lands, could only be leased and not sold to
private parties because of Act No. 2874.
The prohibition on private parties from acquiring ownership of government reclaimed and marshy
lands of the public domain was only a statutory prohibition and the legislature could therefore remove
such prohibition. The 1935 Constitution did not prohibit individuals and corporations from acquiring
government reclaimed and marshy lands of the public domain that were classified as agricultural lands
under existing public land laws. Section 2, Article XIII of the 1935 Constitution provided as follows:
Section 2. No private corporation or association may acquire, lease, or hold public agricultural
lands in excess of one thousand and twenty four hectares, nor may any individual acquire such
lands by purchase in excess of one hundred and forty hectares, or by lease in excess of one

thousand and twenty-four hectares, or by homestead in excess of twenty-four hectares. Lands adapted
to grazing, not exceeding two thousand hectares, may be leased to an individual, private corporation, or
association. (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No. 2874
to open for sale to private parties government reclaimed and marshy lands of the public domain. On the
contrary, the legislature continued the long established State policy of retaining for the government title
and ownership of government reclaimed and marshy lands of the public domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as
the Public Land Act, which compiled the then existing laws on lands of the public domain. CA No. 141, as
amended, remains to this day the existing general law governing the classification and disposition of
lands of the public domain other than timber and mineral lands. [51]
Section 6 of CA No. 141 empowers the President to classify lands of the public domain into
alienable or disposable[52] lands of the public domain, which prior to such classification are inalienable
and outside the commerce of man. Section 7 of CA No. 141 authorizes the President to declare what
lands are open to disposition or concession. Section 8 of CA No. 141 states that the government can
declare open for disposition or concession only lands that are officially delimited and classified. Sections
6, 7 and 8 of CA No. 141 read as follows:
Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and
Commerce, shall from time to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one class to another,[53] for the purpose
of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or disposable public lands, the
President, upon recommendation by the Secretary of Agriculture and Commerce, shall from time
to time declare what lands are open to disposition or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession which have
been officially delimited and classified and, when practicable, surveyed, and which have not been
reserved for public or quasi-public uses, nor appropriated by the Government, nor in any manner
become private property, nor those on which a private right authorized and recognized by this Act or any
other valid law may be claimed, or which, having been reserved or appropriated, have ceased to be so. x
x x.
Thus, before the government could alienate or dispose of lands of the public domain, the President must
first officially classify these lands as alienable or disposable, and then declare them open to disposition or
concession. There must be no law reserving these lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the
public domain, are as follows:
Sec. 58. Any tract of land of the public domain which, being neither timber nor mineral land, is
intended to be used for residential purposes or for commercial, industrial, or other productive
purposes other than agricultural, and is open to disposition or concession, shall be disposed of
under the provisions of this chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable
lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any
person, corporation, or association authorized to purchase or lease public lands for agricultural
purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed of
to private parties by lease only and not otherwise, as soon as the President, upon recommendation
by the Secretary of Agriculture, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this Act. (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act
No. 2874 prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of the
public domain. All these lands are intended for residential, commercial, industrial or other non-agricultural
purposes. As before, Section 61 allowed only the lease of such lands to private parties. The government
could sell to private parties only lands falling under Section 59 (d) of CA No. 141, or those lands for nonagricultural purposes not classified as government reclaimed, foreshore and marshy disposable lands of
the public domain. Foreshore lands, however, became inalienable under the 1935 Constitution which only
allowed the lease of these lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for
residential, commercial, industrial or other productive purposes other than agricultural shall be
disposed of under the provisions of this chapter and not otherwise. Under Section 10 of CA No.
141, the term disposition includes lease of the land. Any disposition of government reclaimed, foreshore
and marshy disposable lands for non-agricultural purposes must comply with Chapter IX, Title III of CA
No. 141,[54] unless a subsequent law amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,[55] Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:
Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed by the
government by dredging, filling, or other means. Act 1654 mandated that the control and disposition of
the foreshore and lands under water remained in the national government. Said law allowed only the
leasing of reclaimed land. The Public Land Acts of 1919 and 1936 also declared that the foreshore and
lands reclaimed by the government were to be disposed of to private parties by lease only and not
otherwise. Before leasing, however, the Governor-General, upon recommendation of the Secretary of
Agriculture and Natural Resources, had first to determine that the land reclaimed was not necessary for
the public service. This requisite must have been met before the land could be disposed of. But even
then, the foreshore and lands under water were not to be alienated and sold to private parties. The
disposition of the reclaimed land was only by lease. The land remained property of the
State. (Emphasis supplied)
As observed by Justice Puno in his concurring opinion, Commonwealth Act No. 141 has remained in
effect at present.
The State policy prohibiting the sale to private parties of government reclaimed, foreshore and
marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA No. 141
after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands, however, became a
constitutional edict under the 1935 Constitution. Foreshore lands became inalienable as natural resources
of the State, unless reclaimed by the government and classified as agricultural lands of the public domain,
in which case they would fall under the classification of government reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of
the public domain continued to be only leased and not sold to private parties. [56] These lands
remained sui generis, as the only alienable or disposable lands of the public domain the government
could not sell to private parties.
Since then and until now, the only way the government can sell to private parties government
reclaimed and marshy disposable lands of the public domain is for the legislature to pass a law
authorizing such sale. CA No. 141 does not authorize the President to reclassify government reclaimed
and marshy lands into other non-agricultural lands under Section 59 (d). Lands classified under Section
59 (d) are the only alienable or disposable lands for non-agricultural purposes that the government could
sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under
Section 59 that the government previously transferred to government units or entities could be sold to
private parties. Section 60 of CA No. 141 declares that
Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the Secretary of
Agriculture and Natural Resources, be reasonably necessary for the purposes for which such sale or
lease is requested, and shall not exceed one hundred and forty-four hectares: Provided, however, That
this limitation shall not apply to grants, donations, or transfers made to a province, municipality or branch
or subdivision of the Government for the purposes deemed by said entities conducive to the public
interest; but the land so granted, donated, or transferred to a province, municipality or branch or
subdivision of the Government shall not be alienated, encumbered, or otherwise disposed of in a
manner affecting its title, except when authorized by Congress: x x x. (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority required
in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141 exempted government
units and entities from the maximum area of public lands that could be acquired from the State. These
government units and entities should not just turn around and sell these lands to private parties in
violation of constitutional or statutory limitations. Otherwise, the transfer of lands for non-agricultural
purposes to government units and entities could be used to circumvent constitutional limitations on
ownership of alienable or disposable lands of the public domain. In the same manner, such transfers
could also be used to evade the statutory prohibition in CA No. 141 on the sale of government reclaimed
and marshy lands of the public domain to private parties. Section 60 of CA No. 141 constitutes by
operation of law a lien on these lands.[57]
In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No.
141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as follows:
Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public purposes,
the Director of Lands shall ask the Secretary of Agriculture and Commerce (now the Secretary of Natural
Resources) for authority to dispose of the same. Upon receipt of such authority, the Director of Lands
shall give notice by public advertisement in the same manner as in the case of leases or sales of
agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be made to the
highest bidder. x x x. (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable or
disposable lands of the public domain.[58]
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish
Law of Waters of 1866. Private parties could still reclaim portions of the sea with government
permission. However, the reclaimed land could become private land only if classified as alienable

agricultural land of the public domain open to disposition under CA No. 141. The 1935 Constitution
prohibited the alienation of all natural resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of public dominion found in
the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall
form part of the patrimonial property of the State.
Again, the government must formally declare that the property of public dominion is no longer
needed for public use or public service, before the same could be classified as patrimonial property of the
State.[59] In the case of government reclaimed and marshy lands of the public domain, the declaration of
their being disposable, as well as the manner of their disposition, is governed by the applicable provisions
of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those
properties of the State which, without being for public use, are intended for public service or the
development of the national wealth. Thus, government reclaimed and marshy lands of the State,
even if not employed for public use or public service, if developed to enhance the national wealth, are
classified as property of public dominion.

Dispositions under the 1973 Constitution


The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian
doctrine. Section 8, Article XIV of the 1973 Constitution stated that
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces
of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the
State. With the exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain, natural resources shall not be alienated, and no license, concession, or
lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except
as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, in which cases, beneficial use may be the measure and the limit of the grant. (Emphasis
supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of
agricultural, industrial or commercial, residential, and resettlement lands of the public domain. In
contrast, the 1935 Constitution barred the alienation of all natural resources except public agricultural
lands. However, the term public agricultural lands in the 1935 Constitution encompassed industrial,
commercial, residential and resettlement lands of the public domain. [60]If the land of public domain were
neither timber nor mineral land, it would fall under the classification of agricultural land of the public

domain. Both the 1935 and 1973 Constitutions, therefore, prohibited the alienation of all natural
resources except agricultural lands of the public domain.
The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals
who were citizens of the Philippines. Private corporations, even if wholly owned by Philippine citizens,
were no longer allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that
Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and development
requirements of the natural resources, shall determine by law the size of land of the public domain which
may be developed, held or acquired by, or leased to, any qualified individual, corporation, or association,
and the conditions therefor. No private corporation or association may hold alienable lands of the
public domain except by lease not to exceed one thousand hectares in area nor may any citizen hold
such lands by lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in
excess of twenty-four hectares. No private corporation or association may hold by lease, concession,
license or permit, timber or forest lands and other timber or forest resources in excess of one hundred
thousand hectares. However, such area may be increased by the Batasang Pambansa upon
recommendation of the National Economic and Development Authority. (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public
domain only through lease. Only individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring any kind of alienable land of
the public domain. The constitutional ban extended to all kinds of alienable lands of the public domain,
while the statutory ban under CA No. 141 applied only to government reclaimed, foreshore and marshy
alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority


On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084
creating PEA, a wholly government owned and controlled corporation with a special charter. Sections 4
and 8 of PD No. 1084, vests PEA with the following purposes and powers:
Sec. 4. Purpose. The Authority is hereby created for the following purposes:
(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;
(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands, buildings, estates and other forms of real property, owned, managed,
controlled and/or operated by the government;
(c) To provide for, operate or administer such service as may be necessary for the efficient, economical
and beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the purposes for which
it is created, have the following powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area permitted to private corporations
by statute.
(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse,
canal, ditch, flume x x x.
xxx
(o) To perform such acts and exercise such functions as may be necessary for the attainment of the
purposes and objectives herein specified. (Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public
domain. Foreshore areas are those covered and uncovered by the ebb and flow of the tide. [61]Submerged
areas are those permanently under water regardless of the ebb and flow of the tide. [62] Foreshore and
submerged areas indisputably belong to the public domain [63] and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public
domain did not apply to PEA since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now, only to private corporations and
associations. PD No. 1084 expressly empowers PEA to hold lands of the public domain even in
excess of the area permitted to private corporations by statute. Thus, PEA can hold title to private
lands, as well as title to lands of the public domain.
In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain,
there must be legislative authority empowering PEA to sell these lands. This legislative authority is
necessary in view of Section 60 of CA No.141, which states
Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or branch or
subdivision of the Government shall not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress; x x x. (Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and
submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to PEA
to sell its reclaimed alienable lands of the public domain would be subject to the constitutional ban on
private corporations from acquiring alienable lands of the public domain. Hence, such legislative authority
could only benefit private individuals.

Dispositions under the 1987 Constitution


The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural resources are owned by the State, and except
for alienable agricultural lands of the public domain, natural resources cannot be alienated. Sections 2
and 3, Article XII of the 1987 Constitution state that
Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. x x x.
Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and
national parks. Agricultural lands of the public domain may be further classified by law according to the
uses which they may be devoted. Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares
thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the conditions therefor. (Emphasis
supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations from acquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the lease
to private corporations of reclaimed, foreshore and marshy alienable lands of the public domain is still CA
No. 141.

The Rationale behind the Constitutional Ban


The rationale behind the constitutional ban on corporations from acquiring, except through lease,
alienable lands of the public domain is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale behind this ban, thus:
FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:
`No private corporation or association may hold alienable lands of the public domain except by
lease, not to exceed one thousand hectares in area.
If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the 1973
Constitution. In effect, it prohibits private corporations from acquiring alienable public lands. But it has
not been very clear in jurisprudence what the reason for this is. In some of the cases decided in
1982 and 1983, it was indicated that the purpose of this is to prevent large landholdings. Is that the
intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the Iglesia
ni Cristo was not allowed to acquire a mere 313-square meter land where a chapel stood because the
Supreme Court said it would be in violation of this. (Emphasis supplied)
In Ayog v. Cusi,[64] the Court explained the rationale behind this constitutional ban in this way:
Indeed, one purpose of the constitutional prohibition against purchases of public agricultural lands by
private corporations is to equitably diffuse land ownership or to encourage owner-cultivatorship and the
economic family-size farm and to prevent a recurrence of cases like the instant case. Huge landholdings
by corporations or private persons had spawned social unrest.
However, if the constitutional intent is to prevent huge landholdings, the Constitution could have simply
limited the size of alienable lands of the public domain that corporations could acquire. The Constitution
could have followed the limitations on individuals, who could acquire not more than 24 hectares of
alienable lands of the public domain under the 1973 Constitution, and not more than 12 hectares under
the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms, placing the land in the name
of a corporation would be more effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner, his heirs would inherit shares in the
corporation instead of subdivided parcels of the farmland. This would prevent the continuing break-up of
farmlands into smaller and smaller plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from
acquiring more than the allowed area of alienable lands of the public domain. Without the constitutional
ban, individuals who already acquired the maximum area of alienable lands of the public domain could

easily set up corporations to acquire more alienable public lands. An individual could own as many
corporations as his means would allow him. An individual could even hide his ownership of a corporation
by putting his nominees as stockholders of the corporation. The corporation is a convenient vehicle to
circumvent the constitutional limitation on acquisition by individuals of alienable lands of the public
domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a
limited area of alienable land of the public domain to a qualified individual. This constitutional intent is
safeguarded by the provision prohibiting corporations from acquiring alienable lands of the public domain,
since the vehicle to circumvent the constitutional intent is removed. The available alienable public lands
are gradually decreasing in the face of an ever-growing population. The most effective way to insure
faithful adherence to this constitutional intent is to grant or sell alienable lands of the public domain only to
individuals. This, it would seem, is the practical benefit arising from the constitutional ban.

The Amended Joint Venture Agreement


The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely:
1. [T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;
2. [A]nother area of 2,421,559 square meters contiguous to the three islands; and
3. [A]t AMARIs option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area.[65]
PEA confirms that the Amended JVA involves the development of the Freedom Islands and further
reclamation of about 250 hectares x x x, plus an option granted to AMARI to subsequently reclaim
another 350 hectares x x x.[66]
In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the
750-hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are still
submerged areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEAs actual
cost in partially reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the
reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other
areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70
percent and 30 percent, respectively, the total net usable area which is defined in the Amended JVA as
the total reclaimed area less 30 percent earmarked for common areas. Title to AMARIs share in the net
usable area, totaling 367.5 hectares, will be issued in the name of AMARI. Section 5.2 (c) of the
Amended JVA provides that
x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or conveyance of
the title pertaining to AMARIs Land share based on the Land Allocation Plan.PEA, when requested in
writing by AMARI, shall then cause the issuance and delivery of the proper certificates of title
covering AMARIs Land Share in the name of AMARI, x x x; provided, that if more than seventy
percent (70%) of the titled area at any given time pertains to AMARI, PEA shall deliver to AMARI only
seventy percent (70%) of the titles pertaining to AMARI, until such time when a corresponding
proportionate area of additional land pertaining to PEA has been titled. (Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares
of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture
PEAs statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila
Bay. Section 3.2.a of the Amended JVA states that
PEA hereby contributes to the joint venture its rights and privileges to perform Rawland Reclamation and
Horizontal Development as well as own the Reclamation Area, thereby granting the Joint Venture the full
and exclusive right, authority and privilege to undertake the Project in accordance with the Master
Development Plan.
The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.

The Threshold Issue


The threshold issue is whether AMARI, a private corporation, can acquire and own under the
Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state that:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of agricultural lands, all other natural resources shall
not be alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands of the public domain except by
lease, x x x.(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas


PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its Memorandum,[67] PEA admits that
Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and
disposable lands of the public domain:
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the government by dredging, filling, or other means;
x x x. (Emphasis supplied)
Likewise, the Legal Task Force[68] constituted under Presidential Administrative Order No. 365
admitted in its Report and Recommendation to then President Fidel V. Ramos, [R]eclaimed lands are
classified as alienable and disposable lands of the public domain.[69] The Legal Task Force
concluded that
D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of ownership
and disposition over reclaimed lands have been transferred to PEA, by virtue of which PEA, as owner,
may validly convey the same to any qualified person without violating the Constitution or any statute.
The constitutional provision prohibiting private corporations from holding public land, except by lease
(Sec. 3, Art. XVII,[70] 1987 Constitution), does not apply to reclaimed lands whose ownership has passed
on to PEA by statutory grant.
Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila
Bay are part of the lands of the public domain, waters x x x and other natural resources and
consequently owned by the State. As such, foreshore and submerged areas shall not be alienated,
unless they are classified as agricultural lands of the public domain. The mere reclamation of these
areas by PEA does not convert these inalienable natural resources of the State into alienable or
disposable lands of the public domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and open to disposition or
concession. Moreover, these reclaimed lands cannot be classified as alienable or disposable if the law
has reserved them for some public or quasi-public use.[71]
Section 8 of CA No. 141 provides that only those lands shall be declared open to disposition or
concession which have been officially delimited and classified.[72] The President has the authority to
classify inalienable lands of the public domain into alienable or disposable lands of the public domain,
pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,[73] the Executive Department attempted to sell
the Roppongi property in Tokyo, Japan, which was acquired by the Philippine Government for use as the
Chancery of the Philippine Embassy. Although the Chancery had transferred to another location thirteen
years earlier, the Court still ruled that, under Article 422 [74] of the Civil Code, a property of public dominion
retains such character until formally declared otherwise. The Court ruled that
The fact that the Roppongi site has not been used for a long time for actual Embassy service does not
automatically convert it to patrimonial property. Any such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A
property continues to be part of the public domain, not available for private appropriation or
ownership until there is a formal declaration on the part of the government to withdraw it from
being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]. (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands
reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then
President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84 hectares
comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the Register of
Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA
pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title corresponding to
land patents. To this day, these certificates of title are still in the name of PEA.
PD No. 1085, coupled with President Aquinos actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or
disposable lands of the public domain. PD No. 1085 and President Aquinos issuance of a land patent
also constitute a declaration that the Freedom Islands are no longer needed for public service. The
Freedom Islands are thus alienable or disposable lands of the public domain, open to disposition
or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the
Freedom Islands although subsequently there were partial erosions on some areas. The government had
also completed the necessary surveys on these islands. Thus, the Freedom Islands were no longer part
of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution classifies lands of
the public domain into agricultural, forest or timber, mineral lands, and national parks. Being neither
timber, mineral, nor national park lands, the reclaimed Freedom Islands necessarily fall under the
classification of agricultural lands of the public domain. Under the 1987 Constitution, agricultural lands of

the public domain are the only natural resources that the State may alienate to qualified private
parties. All other natural resources, such as the seas or bays, are waters x x x owned by the State
forming part of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987
Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation,
reclaimed the islands under a contract dated November 20, 1973 with the Commissioner of Public
Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866, argues that if the ownership of
reclaimed lands may be given to the party constructing the works, then it cannot be said that reclaimed
lands are lands of the public domain which the State may not alienate. [75] Article 5 of the Spanish Law of
Waters reads as follows:
Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the
provinces, pueblos or private persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the grant of authority.
(Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only
with proper permission from the State. Private parties could own the reclaimed land only if not
otherwise provided by the terms of the grant of authority. This clearly meant that no one could reclaim
from the sea without permission from the State because the sea is property of public dominion. It also
meant that the State could grant or withhold ownership of the reclaimed land because any reclaimed land,
like the sea from which it emerged, belonged to the State. Thus, a private person reclaiming from the sea
without permission from the State could not acquire ownership of the reclaimed land which would remain
property of public dominion like the sea it replaced. [76] Article 5 of the Spanish Law of Waters of 1866
adopted the time-honored principle of land ownership that all lands that were not acquired from the
government, either by purchase or by grant, belong to the public domain. [77]
Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must first be
classified as alienable or disposable before the government can alienate them. These lands must not be
reserved for public or quasi-public purposes.[78]Moreover, the contract between CDCP and the
government was executed after the effectivity of the 1973 Constitution which barred private corporations
from acquiring any kind of alienable land of the public domain. This contract could not have converted the
Freedom Islands into private lands of a private corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the power to reclaim
lands. Section 1 of PD No. 3-A declared that
The provisions of any law to the contrary notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the National Government or any person authorized
by it under a proper contract. (Emphasis supplied)
x x x.
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under
water could now be undertaken only by the National Government or by a person contracted by the
National Government. Private parties may reclaim from the sea only under a contract with the National
Government, and no longer by grant or permission as provided in Section 5 of the Spanish Law of Waters
of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Governments implementing arm to undertake all reclamation projects o