CONSTI LAW II ACJUCO FINALS 1

RIGHT TO INFORMATION Bill of Rights, Article IV, of the 1973 Constitution,

which states:
G.R. No. L-72119 May 29, 1987
Sec. 6. The right of the people to information on
VALENTIN L. LEGASPI, petitioner, matters of public concern shall be recognized.
vs. Access to official records, and to documents and
CIVIL SERVICE COMMISSION, respondent. papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to
CORTES, J.: such limitations as may be provided by law.

The fundamental right of the people to The foregoing provision has been retained and
information on matters of public concern is the right therein provided amplified in Article III,
invoked in this special civil action for mandamus Sec. 7 of the 1987 Constitution with the addition
instituted by petitioner Valentin L. Legaspi of the phrase, "as well as to government
against the Civil Service Commission. The research data used as basis for policy
respondent had earlier denied Legaspi's request development." The new provision reads:
for information on the civil service eligibilities of
certain persons employed as sanitarians in the The right of the people to information on matters
Health Department of Cebu City. These of public concern shall be recognized. Access to
government employees, Julian Sibonghanoy official records, and to documents, and papers
and Mariano Agas, had allegedly represented pertaining to official acts, transactions, or
themselves as civil service eligibles who passed decisions, as well as to government research
the civil service examinations for sanitarians. data used as basis. for policy development, shall
be afforded the citizen, subject to such stations
Claiming that his right to be informed of the as may be provided by law.
eligibilities of Julian Sibonghanoy and Mariano
Agas, is guaranteed by the Constitution, and that These constitutional provisions are self-
he has no other plain, speedy and adequate executing. They supply the rules by means of
remedy to acquire the information, petitioner which the right to information may be enjoyed
prays for the issuance of the extraordinary writ (Cooley, A Treatise on the Constitutional
of mandamus to compel the respondent Limitations 167 [1927]) by guaranteeing the right
Commission to disclose said information. and mandating the duty to afford access to
sources of information. Hence, the fundamental
This is not the first tune that the writ of right therein recognized may be asserted by the
mandamus is sought to enforce the fundamental people upon the ratification of the constitution
right to information. The same remedy was without need for any ancillary act of the
resorted to in the case of Tanada et. al. vs. Legislature. (Id. at, p. 165) What may be
Tuvera et. al., (G.R. No. L-63915, April provided for by the Legislature are reasonable
24,1985,136 SCRA 27) wherein the people's conditions and limitations upon the access to be
right to be informed under the 1973 Constitution afforded which must, of necessity, be consistent
(Article IV, Section 6) was invoked in order to with the declared State policy of full public
compel the publication in the Official Gazette of disclosure of all transactions involving public
various presidential decrees, letters of interest (Constitution, Art. 11, Sec. 28).
instructions and other presidential issuances. However, it cannot be overemphasized that
Prior to the recognition of the right in said whatever limitation may be prescribed by the
Constitution the statutory right to information Legislature, the right and the duty under Art. III
provided for in the Land Registration Act Sec. 7 have become operative and enforceable
(Section 56, Act 496, as amended) was claimed by virtue of the adoption of the New Charter.
by a newspaper editor in another mandamus Therefore, the right may be properly invoked in
proceeding, this time to demand access to the a mandamus proceeding such as this one.
records of the Register of Deeds for the purpose
of gathering data on real estate transactions The Solicitor General interposes procedural
involving aliens (Subido vs. Ozaeta, 80 Phil. 383 objections to Our giving due course to this
[1948]). Petition. He challenges the petitioner's standing
to sue upon the ground that the latter does not
The constitutional right to information on matters possess any clear legal right to be informed of
of public concern first gained recognition in the the civil service eligibilities of the government
 CONSTI LAW II ACJUCO FINALS 2

employees concerned. He calls attention to the that even those who have no direct or tangible
alleged failure of the petitioner to show his actual interest in any real estate transaction are part of
interest in securing this particular information. the "public" to whom "(a)ll records relating to
He further argues that there is no ministerial duty registered lands in the Office of the Register of
on the part of the Commission to furnish the Deeds shall be open * * *" (Sec. 56, Act No. 496,
petitioner with the information he seeks. as amended). In the words of the Court:

1. To be given due course, a Petition for * * * "Public" is a comprehensive, all-inclusive

mandamus must have been instituted by a party term. Properly construed, it embraces every
aggrieved by the alleged inaction of any tribunal, person. To say that only those who have a
corporation, board or person which unlawfully present and existing interest of a pecuniary
excludes said party from the enjoyment of a legal character in the particular information sought are
right. (Ant;-Chinese League of the Philippines given the right of inspection is to make an
vs. Felix, 77 Phil. 1012 [1947]). The petitioner in unwarranted distinction. *** (Subido vs. Ozaeta,
every case must therefore be an "aggrieved supra at p. 387).
party" in the sense that he possesses a clear
legal right to be enforced and a direct interest in The petitioner, being a citizen who, as such is
the duty or act to be performed. clothed with personality to seek redress for the
alleged obstruction of the exercise of the public
In the case before Us, the respondent takes right. We find no cogent reason to deny his
issue on the personality of the petitioner to bring standing to bring the present suit.
this suit. It is asserted that, the instant Petition is
bereft of any allegation of Legaspi's actual 2. For every right of the people recognized
interest in the civil service eligibilities of Julian as fundamental, there lies a corresponding duty
Sibonghanoy and Mariano Agas, At most there on the part of those who govern, to respect and
is a vague reference to an unnamed client in protect that right. That is the very essence of the
whose behalf he had allegedly acted when he Bill of Rights in a constitutional regime. Only
made inquiries on the subject (Petition, Rollo, p. governments operating under fundamental rules
3). defining the limits of their power so as to shield
individual rights against its arbitrary exercise can
But what is clear upon the face of the Petition is properly claim to be constitutional (Cooley,
that the petitioner has firmly anchored his case supra, at p. 5). Without a government's
upon the right of the people to information on acceptance of the limitations imposed upon it by
matters of public concern, which, by its very the Constitution in order to uphold individual
nature, is a public right. It has been held that: liberties, without an acknowledgment on its part
of those duties exacted by the rights pertaining
* * * when the question is one of public right and to the citizens, the Bill of Rights becomes a
the object of the mandamus is to procure the sophistry, and liberty, the ultimate illusion.
enforcement of a public duty, the people are
regarded as the real party in interest and the In recognizing the people's right to be informed,
relator at whose instigation the proceedings are both the 1973 Constitution and the New Charter
instituted need not show that he has any legal or expressly mandate the duty of the State and its
special interest in the result, it being sufficient to agents to afford access to official records,
show that he is a citizen and as such interested documents, papers and in addition, government
in the execution of the laws * * * (Tanada et. al. research data used as basis for policy
vs. Tuvera, et. al., G.R. No. L- 63915, April 24, development, subject to such limitations as may
1985, 136 SCRA 27, 36). be provided by law. The guarantee has been
further enhanced in the New Constitution with
From the foregoing, it becomes apparent that the adoption of a policy of full public disclosure,
when a mandamus proceeding involves the this time "subject to reasonable conditions
assertion of a public right, the requirement of prescribed by law," in Article 11, Section 28
personal interest is satisfied by the mere fact that thereof, to wit:
the petitioner is a citizen, and therefore, part of
the general "public" which possesses the right. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of
The Court had opportunity to define the word full public disclosure of all its transactions
"public" in the Subido case, supra, when it held involving public interest. (Art. 11, Sec. 28).
 CONSTI LAW II ACJUCO FINALS 3

Register of Deeds may promulgate are confined

In the Tanada case, supra, the constitutional to:
guarantee was bolstered by what this Court
declared as an imperative duty of the * * * prescribing the manner and hours of
government officials concerned to publish all examination to the end that damage to or loss of,
important legislative acts and resolutions of a the records may be avoided, that undue
public nature as well as all executive orders and interference with the duties of the custodian of
proclamations of general applicability. We the books and documents and other employees
granted mandamus in said case, and in the may be prevented, that the right of other persons
process, We found occasion to expound briefly entitled to make inspection may be insured * * *
on the nature of said duty: (Subido vs. Ozaeta, 80 Phil. 383, 387)

* * * That duty must be enforced if the Applying the Subido ruling by analogy, We
Constitutional right of the people to be informed recognized a similar authority in a municipal
on matters of public concern is to be given judge, to regulate the manner of inspection by
substance and reality. The law itself makes a list the public of criminal docket records in the case
of what should be published in the Official of Baldoza vs. Dimaano (Adm. Matter No. 1120-
Gazette. Such listing, to our mind, leaves MJ, May 5, 1976, 71 SCRA 14). Said
respondents with no discretion whatsoever as to administrative case was filed against the
what must be in included or excluded from such respondent judge for his alleged refusal to allow
publication. (Tanada v. Tuvera, supra, at 39). examination of the criminal docket records in his
(Emphasis supplied). sala. Upon a finding by the Investigating Judge
that the respondent had allowed the complainant
The absence of discretion on the part of to open and view the subject records, We
government agencia es in allowing the absolved the respondent. In effect, We have
examination of public records, specifically, the also held that the rules and conditions imposed
records in the Office of the Register of Deeds, is by him upon the manner of examining the public
emphasized in Subido vs. Ozaeta, supra: records were reasonable.

Except, perhaps when it is clear that the purpose In both the Subido and the Baldoza cases, We
of the examination is unlawful, or sheer, idle were emphatic in Our statement that the
curiosity, we do not believe it is the duty under authority to regulate the manner of examining
the law of registration officers to concern public records does not carry with it the power to
themselves with the motives, reasons, and prohibit. A distinction has to be made between
objects of the person seeking access to the the discretion to refuse outright the disclosure of
records. It is not their prerogative to see that the or access to a particular information and the
information which the records contain is not authority to regulate the manner in which the
flaunted before public gaze, or that scandal is access is to be afforded. The first is a limitation
not made of it. If it be wrong to publish the upon the availability of access to the information
contents of the records, it is the legislature and sought, which only the Legislature may impose
not the officials having custody thereof which is (Art. III, Sec. 6, 1987 Constitution). The second
called upon to devise a remedy. *** (Subido v. pertains to the government agency charged with
Ozaeta, supra at 388). (Emphasis supplied). the custody of public records. Its authority to
regulate access is to be exercised solely to the
It is clear from the foregoing pronouncements of end that damage to, or loss of, public records
this Court that government agencies are without may be avoided, undue interference with the
discretion in refusing disclosure of, or access to, duties of said agencies may be prevented, and
information of public concern. This is not to lose more importantly, that the exercise of the same
sight of the reasonable regulations which may constitutional right by other persons shall be
be imposed by said agencies in custody of public assured (Subido vs. Ozaetal supra).
records on the manner in which the right to
information may be exercised by the public. In Thus, while the manner of examining public
the Subido case, We recognized the authority of records may be subject to reasonable regulation
the Register of Deeds to regulate the manner in by the government agency in custody thereof,
which persons desiring to do so, may inspect, the duty to disclose the information of public
examine or copy records relating to registered concern, and to afford access to public records
lands. However, the regulations which the cannot be discretionary on the part of said
 CONSTI LAW II ACJUCO FINALS 4

agencies. Certainly, its performance cannot be a. This question is first addressed to the
made contingent upon the discretion of such government agency having custody of the
agencies. Otherwise, the enjoyment of the desired information. However, as already
constitutional right may be rendered nugatory by discussed, this does not give the agency
any whimsical exercise of agency discretion. concerned any discretion to grant or deny
The constitutional duty, not being discretionary, access. In case of denial of access, the
its performance may be compelled by a writ of government agency has the burden of showing
mandamus in a proper case. that the information requested is not of public
concern, or, if it is of public concern, that the
But what is a proper case for Mandamus to same has been exempted by law from the
issue? In the case before Us, the public right to operation of the guarantee. To hold otherwise
be enforced and the concomitant duty of the will serve to dilute the constitutional right. As
State are unequivocably set forth in the aptly observed, ". . . the government is in an
Constitution. The decisive question on the advantageous position to marshall and interpret
propriety of the issuance of the writ of arguments against release . . ." (87 Harvard Law
mandamus in this case is, whether the Review 1511 [1974]). To safeguard the
information sought by the petitioner is within the constitutional right, every denial of access by the
ambit of the constitutional guarantee. government agency concerned is subject to
review by the courts, and in the proper case,
3. The incorporation in the Constitution of a access may be compelled by a writ of
guarantee of access to information of public Mandamus.
concern is a recognition of the essentiality of the
free flow of ideas and information in a In determining whether or not a particular
democracy (Baldoza v. Dimaano, Adm. Matter information is of public concern there is no rigid
No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the test which can be applied. "Public concern" like
same way that free discussion enables "public interest" is a term that eludes exact
members of society to cope with the exigencies definition. Both terms embrace a broad
of their time (Thornhill vs. Alabama, 310 U.S. spectrum of subjects which the public may want
88,102 [1939]), access to information of general to know, either because these directly affect
interest aids the people in democratic decision- their lives, or simply because such matters
making (87 Harvard Law Review 1505 [1974]) naturally arouse the interest of an ordinary
by giving them a better perspective of the vital citizen. In the final analysis, it is for the courts to
issues confronting the nation. determine in a case by case basis whether the
matter at issue is of interest or importance, as it
But the constitutional guarantee to information relates to or affects the public.
on matters of public concern is not absolute. It
does not open every door to any and all The public concern invoked in the case of
information. Under the Constitution, access to Tanada v. Tuvera, supra, was the need for
official records, papers, etc., are "subject to adequate notice to the public of the various laws
limitations as may be provided by law" (Art. III, which are to regulate the actions and conduct of
Sec. 7, second sentence). The law may citizens. In Subido vs. Ozaeta, supra, the public
therefore exempt certain types of information concern deemed covered by the statutory right
from public scrutiny, such as those affecting was the knowledge of those real estate
national security (Journal No. 90, September 23, transactions which some believed to have been
1986, p. 10; and Journal No. 91, September 24, registered in violation of the Constitution.
1986, p. 32, 1986 Constitutional Commission). It
follows that, in every case, the availability of The information sought by the petitioner in this
access to a particular public record must be case is the truth of the claim of certain
circumscribed by the nature of the information government employees that they are civil
sought, i.e., (a) being of public concern or one service eligibles for the positions to which they
that involves public interest, and, (b) not being were appointed. The Constitution expressly
exempted by law from the operation of the declares as a State policy that:
constitutional guarantee. The threshold question
is, therefore, whether or not the information Appointments in the civil service shall be made
sought is of public interest or public concern. only according to merit and fitness to be
determined, as far as practicable, and except as
to positions which are policy determining,
 CONSTI LAW II ACJUCO FINALS 5

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.
 CONSTI LAW II ACJUCO FINALS 6

G.R. No. 74930 February 13, 1989 each on guarranty (sic) of Mrs. Imelda Marcos.
We understand that OIC Mel Lopez of Manila
RICARDO VALMONTE, OSWALDO was one of those aforesaid MPs. Likewise, may
CARBONELL, DOY DEL CASTILLO, we be furnished with the certified true copies of
ROLANDO BARTOLOME, LEO OBLIGAR, the documents evidencing their loan. Expenses
JUN GUTIERREZ, REYNALDO BAGATSING, in connection herewith shall be borne by us.
JUN "NINOY" ALBA, PERCY LAPID,
ROMMEL CORRO and ROLANDO FADUL, If we could not secure the above documents
petitioners, could we have access to them?
vs.
FELICIANO BELMONTE, JR., respondent. We are premising the above request on the
following provision of the Freedom Constitution
Ricardo C. Valmonte for and in his own of the present regime.
behalf and his co-petitioners.
The right of the people to information on matters
The Solicitor General for respondent. of public concern shall be recognized. Access to
official records, and to documents and papers
pertaining to official acts, transactions or
CORTES, J.: decisions, shall be afforded the citizen subject to
such limitation as may be provided by law. (Art.
Petitioners in this special civil action for IV, Sec. 6).
mandamus with preliminary injunction invoke
their right to information and pray that We trust that within five (5) days from receipt
respondent be directed: hereof we will receive your favorable response
on the matter.
(a) to furnish petitioners the list of the names
of the Batasang Pambansa members belonging Very truly yours,
to the UNIDO and PDP-Laban who were able to
secure clean loans immediately before the (Sgd.) RICARDO C. VALMONTE
February 7 election thru the
intercession/marginal note of the then First Lady [Rollo, p. 7.]
Imelda Marcos; and/or
To the aforesaid letter, the Deputy General
(b) to furnish petitioners with certified true Counsel of the GSIS replied:
copies of the documents evidencing their
respective loans; and/or June 17, 1986

(c) to allow petitioners access to the public Atty. Ricardo C. Valmonte

records for the subject information. (Petition, pp. 108 E. Benin Street
4-5; paragraphing supplied.] Caloocan City

The controversy arose when petitioner Valmonte Dear Compañero:

wrote respondent Belmonte the following letter:
Possibly because he must have thought that it
June 4, 1986 contained serious legal implications, President &
General Manager Feliciano Belmonte, Jr.
Hon. Feliciano Belmonte referred to me for study and reply your letter to
GSIS General Manager him of June 4, 1986 requesting a list of the
Arroceros, Manila opposition members of Batasang Pambansa
who were able to secure a clean loan of P2
Sir: million each on guaranty of Mrs. Imelda Marcos.

As a lawyer, member of the media and plain My opinion in this regard is that a confidential
citizen of our Republic, I am requesting that I be relationship exists between the GSIS and all
furnished with the list of names of the opposition those who borrow from it, whoever they may be;
members of (the) Batasang Pambansa who that the GSIS has a duty to its customers to
were able to secure a clean loan of P2 million preserve this confidentiality; and that it would not
 CONSTI LAW II ACJUCO FINALS 7

be proper for the GSIS to breach this they are entitled to the documents sought, by
confidentiality unless so ordered by the courts. virtue of their constitutional right to information.
Hence, it is argued that this case falls under one
As a violation of this confidentiality may mar the of the exceptions to the principle of exhaustion
image of the GSIS as a reputable financial of administrative remedies.
institution, I regret very much that at this time we
cannot respond positively to your request. Among the settled principles in administrative
law is that before a party can be allowed to resort
Very truly yours, to the courts, he is expected to have exhausted
all means of administrative redress available
(Sgd.) MEYNARDO A. TIRO under the law. The courts for reasons of law,
Deputy General Counsel comity and convenience will not entertain a case
[Rollo, p. 40.] unless the available administrative remedies
have been resorted to and the appropriate
On June 20, 1986, apparently not having yet authorities have been given opportunity to act
received the reply of the Government Service and correct the errors committed in the
and Insurance System (GSIS) Deputy General administrative forum. However, the principle of
Counsel, petitioner Valmonte wrote respondent exhaustion of administrative remedies is subject
another letter, saying that for failure to receive a to settled exceptions, among which is when only
reply, "(W)e are now considering ourselves free a question of law is involved [Pascual v.
to do whatever action necessary within the Provincial Board, 106 Phil. 466 (1959); Aguilar v.
premises to pursue our desired objective in Valencia, et al., G.R. No. L-30396, July 30, 1971,
pursuance of public interest." [Rollo, p. 8.] 40 SCRA 210; Malabanan v. Ramento, G.R. No.
L-2270, May 21, 1984, 129 SCRA 359.] The
On June 26, 1986, Valmonte, joined by the other issue raised by petitioners, which requires the
petitioners, filed the instant suit. interpretation of the scope of the constitutional
right to information, is one which can be passed
On July 19, 1986, the Daily Express carried a upon by the regular courts more competently
news item reporting that 137 former members of than the GSIS or its Board of Trustees, involving
the defunct interim and regular Batasang as it does a purely legal question. Thus, the
Pambansa, including ten (10) opposition exception of this case from the application of the
members, were granted housing loans by the general rule on exhaustion of administrative
GSIS [Rollo, p. 41.] remedies is warranted. Having disposed of this
procedural issue, We now address ourselves to
Separate comments were filed by respondent the issue of whether or not mandamus hes to
Belmonte and the Solicitor General. After compel respondent to perform the acts sought
petitioners filed a consolidated reply, the petition by petitioners to be done, in pursuance of their
was given due course and the parties were right to information.
required to file their memoranda. The parties
having complied, the case was deemed We shall deal first with the second and third
submitted for decision. alternative acts sought to be done, both of which
involve the issue of whether or not petitioners
In his comment respondent raises procedural are entitled to access to the documents
objections to the issuance of a writ of evidencing loans granted by the GSIS.
mandamus, among which is that petitioners
have failed to exhaust administrative remedies. This is not the first time that the Court is
confronted with a controversy directly involving
Respondent claims that actions of the GSIS the constitutional right to information. In Tañada
General Manager are reviewable by the Board v. Tuvera, G.R. No. 63915, April 24,1985, 136
of Trustees of the GSIS. Petitioners, however, SCRA 27 and in the recent case of Legaspi v.
did not seek relief from the GSIS Board of Civil Service Commission, G.R. No. 72119, May
Trustees. It is therefore asserted that since 29, 1987,150 SCRA 530, the Court upheld the
administrative remedies were not exhausted, people's constitutional right to be informed of
then petitioners have no cause of action. matters of public interest and ordered the
government agencies concerned to act as
To this objection, petitioners claim that they have prayed for by the petitioners.
raised a purely legal issue, viz., whether or not
 CONSTI LAW II ACJUCO FINALS 8

The pertinent provision under the 1987 freedoms is to keep open a continuing dialogue
Constitution is Art. 111, Sec. 7 which states: or process of communication between the
government and the people. It is in the interest
The right of the people to information on matters of the State that the channels for free political
of public concern shall be recognized. Access to discussion be maintained to the end that the
official records, and to documents, and papers government may perceive and be responsive to
pertaining to official acts, transactions, or the people's will. Yet, this open dialogue can be
decisions, as well as to government research effective only to the extent that the citizenry is
data used as basis for policy development, shall informed and thus able to formulate its will
be afforded the citizen, subject to such intelligently. Only when the participants in the
limitations as may be provided by law. discussion are aware of the issues and have
access to information relating thereto can such
The right of access to information was also bear fruit.
recognized in the 1973 Constitution, Art. IV Sec.
6 of which provided: The right to information is an essential premise
of a meaningful right to speech and expression.
The right of the people to information on 'matters But this is not to say that the right to information
of public concern shall be recognized. Access to is merely an adjunct of and therefore restricted
official records, and to documents and papers in application by the exercise of the freedoms of
pertaining to official acts, transactions, or speech and of the press. Far from it. The right to
decisions, shall be afforded the citizen subject to information goes hand-in-hand with the
such limitations as may be provided by law. constitutional policies of full public disclosure *
and honesty in the public service. ** It is meant
An informed citizenry with access to the diverse to enhance the widening role of the citizenry in
currents in political, moral and artistic thought governmental decision-making as well as in
and data relative to them, and the free exchange checking abuse in government.
of ideas and discussion of issues thereon, is vital
to the democratic government envisioned under Yet, like all the constitutional guarantees, the
our Constitution. The cornerstone of this right to information is not absolute. As stated in
republican system of government is delegation Legaspi, the people's right to information is
of power by the people to the State. In this limited to "matters of public concern," and is
system, governmental agencies and institutions further "subject to such limitations as may be
operate within the limits of the authority provided by law." Similarly, the State's policy of
conferred by the people. Denied access to full disclosure is limited to "transactions involving
information on the inner workings of public interest," and is "subject to reasonable
government, the citizenry can become prey to conditions prescribed by law."
the whims and caprices of those to whom the
power had been delegated. The postulate of Hence, before mandamus may issue, it must be
public office as a public trust, institutionalized in clear that the information sought is of "public
the Constitution (in Art. XI, Sec. 1) to protect the interest" or "public concern," and is not
people from abuse of governmental power, exempted by law from the operation of the
would certainly be were empty words if access constitutional guarantee [Legazpi v. Civil Service
to such information of public concern is denied, Commission, supra, at p. 542.]
except under limitations prescribed by
implementing legislation adopted pursuant to the The Court has always grappled with the
Constitution. meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
Petitioners are practitioners in media. As such,
they have both the right to gather and the In determining whether or not a particular
obligation to check the accuracy of information information is of public concern there is no rigid
the disseminate. For them, the freedom of the test which can be applied. "Public concern" like
press and of speech is not only critical, but vital "public interest" is a term that eludes exact
to the exercise of their professions. The right of definition. Both terms embrace a broad
access to information ensures that these spectrum of subjects which the public may want
freedoms are not rendered nugatory by the to know, either because these directly affect
government's monopolizing pertinent their lives, or simply because such matters
information. For an essential element of these naturally arouse the interest of an ordinary
 CONSTI LAW II ACJUCO FINALS 9

citezen. In the final analysis, it is for the courts to tasks with the greatest degree of fidelity and that
determine on a case by case basis whether the an its transactions were above board.
matter at issue is of interest or importance, as it
relates to or affects the public. [Ibid. at p. 541] In sum, the public nature of the loanable funds
of the GSIS and the public office held by the
In the Tañada case the public concern deemed alleged borrowers make the information sought
covered by the constitutional right to information clearly a matter of public interest and concern.
was the need for adequate notice to the public of
the various laws which are to regulate the A second requisite must be met before the right
actions and conduct of citezens. In Legaspi, it to information may be enforced through
was the "legitimate concern of citezensof ensure mandamus proceedings, viz., that the
that government positions requiring civil service information sought must not be among those
eligibility are occupied only by persons who are excluded by law.
eligibles" [Supra at p. 539.]
Respondent maintains that a confidential
The information sought by petitioners in this relationship exists between the GSIS and its
case is the truth of reports that certain Members borrowers. It is argued that a policy of
of the Batasang Pambansa belonging to the confidentiality restricts the indiscriminate
opposition were able to secure "clean" loans dissemination of information.
from the GSIS immediately before the February
7, 1986 election through the intercession of th Yet, respondent has failed to cite any law
eformer First Lady, Mrs. Imelda Marcos. granting the GSIS the privilege of confidentiality
as regards the documents subject of this
The GSIS is a trustee of contributions from the petition. His position is apparently based merely
government and its employees and the on considerations of policy. The judiciary does
administrator of various insurance programs for not settle policy issues. The Court can only
the benefit of the latter. Undeniably, its funds declare what the law is, and not what the law
assume a public character. More particularly, should be. Under our system of government,
Secs. 5(b) and 46 of P.D. 1146, as amended (the policy issues are within the domain of the
Revised Government Service Insurance Act of political branches of the government, and of the
1977), provide for annual appropriations to pay people themselves as the repository of all State
the contributions, premiums, interest and other power.
amounts payable to GSIS by the government, as
employer, as well as the obligations which the Respondent however contends that in view of
Republic of the Philippines assumes or the right to privacy which is equally protected by
guarantees to pay. Considering the nature of its the Constitution and by existing laws, the
funds, the GSIS is expected to manage its documents evidencing loan transactions of the
resources with utmost prudence and in strict GSIS must be deemed outside the ambit of the
compliance with the pertinent laws or rules and right to information.
regulations. Thus, one of the reasons that
prompted the revision of the old GSIS law (C.A. There can be no doubt that right to privacy is
No. 186, as amended) was the necessity "to constitutionally protected. In the landmark case
preserve at all times the actuarial solvency of the of Morfe v. Mutuc [130 Phil. 415 (1968), 22
funds administered by the System" [Second SCRA 424], this Court, speaking through then
Whereas Clause, P.D. No. 1146.] Consequently, Mr. Justice Fernando, stated:
as respondent himself admits, the GSIS "is not
supposed to grant 'clean loans.'" [Comment, p. ... The right to privacy as such is accorded
8.] It is therefore the legitimate concern of the recognition independently of its identification
public to ensure that these funds are managed with liberty; in itself, it is fully deserving of
properly with the end in view of maximizing the constitutional protection. The language of Prof.
benefits that accrue to the insured government Emerson is particularly apt: "The concept of
employees. Moreover, the supposed borrowers limited government has always included the idea
were Members of the defunct Batasang that governmental powers stop short of certain
Pambansa who themselves appropriated funds intrusions into the personal life of the citizen.
for the GSIS and were therefore expected to be This is indeed one of the basic distinctions
the first to see to it that the GSIS performed its between absolute and limited government.
UItimate and pervasive control of the individual,
 CONSTI LAW II ACJUCO FINALS 10

in all aspects of his life, is the hallmark of the as compared to ordinary individuals, their
absolute. state, In contrast, a system of limited actions being subject to closer public scrutiny
government safeguards a private sector, which [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R.
belongs to the individual, firmly distinguishing it Nos. 82380 and 82398, April 29, 1988; See also
from the public sector, which the state can Cohen v. Marx, 211 P. 2d 321 (1949).]
control. Protection of this private sector —
protection, in other words, of the dignity and Respondent next asserts that the documents
integrity of the individual — has become evidencing the loan transactions of the GSIS are
increasingly important as modem society has private in nature and hence, are not covered by
developed. All the forces of technological age — the Constitutional right to information on matters
industrialization, urbanization, and organization of public concern which guarantees "(a)ccess to
— operate to narrow the area of privacy and official records, and to documents, and papers
facilitate intrusion into it. In modern terms, the pertaining to official acts, transactions, or
capacity to maintain and support this enclave of decisions" only.
private life marks the difference between a
democratic and a totalitarian society." [at pp. It is argued that the records of the GSIS, a
444-445.] government corporation performing proprietary
functions, are outside the coverage of the
When the information requested from the people's right of access to official records.
government intrudes into the privacy of a citizen,
a potential conflict between the rights to It is further contended that since the loan
information and to privacy may arise. However, function of the GSIS is merely incidental to its
the competing interests of these rights need not insurance function, then its loan transactions are
be resolved in this case. Apparent from the not covered by the constitutional policy of full
above-quoted statement of the Court in Morfe is public disclosure and the right to information
that the right to privacy belongs to the individual which is applicable only to "official" transactions.
in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, First of all, the "constituent — ministrant"
the right cannot be invoked by juridical entities dichotomy characterizing government function
like the GSIS. As held in the case of Vassar has long been repudiated. In ACCFA v.
College v. Loose Wills Biscuit Co. [197 F. 982 Confederation of Unions and Government
(1912)], a corporation has no right of privacy in Corporations and Offices (G.R. Nos. L-21484
its name since the entire basis of the right to and L-23605, November 29, 1969, 30 SCRA
privacy is an injury to the feelings and 6441, the Court said that the government,
sensibilities of the party and a corporation would whether carrying out its sovereign attributes or
have no such ground for relief. running some business, discharges the same
function of service to the people.
Neither can the GSIS through its General
Manager, the respondent, invoke the right to Consequently, that the GSIS, in granting the
privacy of its borrowers. The right is purely loans, was exercising a proprietary function
personal in nature [Cf. Atkinson v. John Doherty would not justify the exclusion of the
& Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 transactions from the coverage and scope of the
(1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. right to information.
22, 31 L.R.A. 286 (1895)), and hence may be
invoked only by the person whose privacy is Moreover, the intent of the members of the
claimed to be violated. Constitutional Commission of 1986, to include
government-owned and controlled corporations
It may be observed, however, that in the instant and transactions entered into by them within the
case, the concerned borrowers themselves may coverage of the State policy of fun public
not succeed if they choose to invoke their right disclosure is manifest from the records of the
to privacy, considering the public offices they proceedings:
were holding at the time the loans were alleged
to have been granted. It cannot be denied that xxx xxx xxx
because of the interest they generate and their
newsworthiness, public figures, most especially THE PRESIDING OFFICER (Mr. Colayco).
those holding responsible positions in
government, enjoy a more limited right to privacy Commissioner Suarez is recognized.
 CONSTI LAW II ACJUCO FINALS 11

ambit of the people's right to be informed

MR. SUAREZ. Thank you. May I ask the pursuant to the constitutional policy of
Gentleman a few question? transparency in government dealings.

MR. OPLE. Very gladly. In fine, petitioners are entitled to access to the
documents evidencing loans granted by the
MR. SUAREZ. Thank you. GSIS, subject to reasonable regulations that the
latter may promulgate relating to the manner and
When we declare a "policy of full public hours of examination, to the end that damage to
disclosure of all its transactions" — referring to or loss of the records may be avoided, that
the transactions of the State — and when we say undue interference with the duties of the
the "State" which I suppose would include all of custodian of the records may be prevented and
the various agencies, departments, ministries that the right of other persons entitled to inspect
and instrumentalities of the government.... the records may be insured [Legaspi v. Civil
Service Commission, supra at p. 538, quoting
MR. OPLE. Yes, and individual public officers, Subido v. Ozaeta, 80 Phil. 383, 387.] The
Mr. Presiding Officer. petition, as to the second and third alternative
acts sought to be done by petitioners, is
MR. SUAREZ. Including government- meritorious.
owned and controlled corporations.
However, the same cannot be said with regard
MR. OPLE. That is correct, Mr. Presiding to the first act sought by petitioners, i.e., "to
Officer. furnish petitioners the list of the names of the
Batasang Pambansa members belonging to the
MR. SUAREZ. And when we say UNIDO and PDP-Laban who were able to
"transactions" which should be distinguished secure clean loans immediately before the
from contracts, agreements, or treaties or February 7 election thru the
whatever, does the Gentleman refer to the steps intercession/marginal note of the then First Lady
leading to the consummation of the contract, or Imelda Marcos."
does he refer to the contract itself?
Although citizens are afforded the right to
MR. OPLE. The "transactions" used here I information and, pursuant thereto, are entitled to
suppose is generic and, therefore, it can cover "access to official records," the Constitution
both steps leading to a contract, and already a does not accord them a right to compel
consummated contract, Mr. Presiding Officer. custodians of official records to prepare lists,
abstracts, summaries and the like in their desire
MR. SUAREZ. This contemplates to acquire information on matters of public
inclusion of negotiations leading to the concern.
consummation of the transaction.
It must be stressed that it is essential for a writ
MR. OPLE. Yes, subject only to reasonable of mandamus to issue that the applicant has a
safeguards on the national interest. well-defined, clear and certain legal right to the
thing demanded and that it is the imperative duty
MR. SUAREZ. Thank you. [V Record of of defendant to perform the act required. The
the Constitutional Commission 24-25.] corresponding duty of the respondent to perform
(Emphasis supplied.) the required act must be clear and specific [Lemi
v. Valencia, G.R. No. L-20768, November
Considering the intent of the framers of the 29,1968,126 SCRA 203; Ocampo v. Subido,
Constitution which, though not binding upon the G.R. No. L-28344, August 27, 1976, 72 SCRA
Court, are nevertheless persuasive, and 443.] The request of the petitioners fails to meet
considering further that government-owned and this standard, there being no duty on the part of
controlled corporations, whether performing respondent to prepare the list requested.
proprietary or governmental functions are
accountable to the people, the Court is WHEREFORE, the instant petition is hereby
convinced that transactions entered into by the granted and respondent General Manager of the
GSIS, a government-controlled corporation Government Service Insurance System is
created by special legislation are within the ORDERED to allow petitioners access to
 CONSTI LAW II ACJUCO FINALS 12

documents and records evidencing loans

granted to Members of the former Batasang
Pambansa, as petitioners may specify, subject
to reasonable regulations as to the time and
manner of inspection, not incompatible with this
decision, as the GSIS may deem necessary.

SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 13

G.R. No. 130716 December 9, 1998 that what impelled him to bring this action were
several news reports 2 bannered in a number of
FRANCISCO I. CHAVEZ, petitioner, broadsheets sometime in September 1997.
vs. These news items referred to (1) the alleged
PRESIDENTIAL COMMISSION ON GOOD discovery of billions of dollars of Marcos assets
GOVERNMENT (PCGG) and MAGTANGGOL deposited in various coded accounts in Swiss
GUNIGUNDO (in his capacity as chairman of banks; and (2) the reported execution of a
the PCGG), respondents, GLORIA A. compromise, between the government (through
JOPSON, CELNAN A. JOPSON, SCARLET A. PCGG) and the Marcos heirs, on how to split or
JOPSON, and TERESA A. JOPSON, share these assets.
petitioners-in-intervention.
Petitioner, invoking his constitutional right to
information 3 and the correlative duty of the state
PANGANIBAN, J.: to disclose publicly all its transactions involving
the national interest,4 demands that
Petitioner asks this Court to define the nature respondents make public any and all
and the extent of the people's constitutional right negotiations and agreements pertaining to
to information on matters of public concern. PCGG's task of recovering the Marcoses' ill-
Does this right include access to the terms of gotten wealth. He claims that any compromise
government negotiations prior to their on the alleged billions of ill-gotten wealth
consummation or conclusion? May the involves an issue of "paramount public interest,"
government, through the Presidential since it has a "debilitating effect on the country's
Commission on Good Government (PCGG), be economy" that would be greatly prejudicial to the
required to reveal the proposed terms of a national interest of the Filipino people. Hence,
compromise agreement with the Marcos heirs as the people in general have a right to know the
regards their alleged ill-gotten wealth? More transactions or deals being contrived and
specifically, are the "General Agreement" and effected by the government.
"Supplemental Agreement," both dated
December 28, 1993 and executed between the Respondents, on the other hand, do not deny
PCGG and the Marcos heirs, valid and binding? forging a compromise agreement with the
Marcos heirs. They claim, though, that
The Case petitioner's action is premature, because there is
no showing that he has asked the PCGG to
These are the main questions raised in this disclose the negotiations and the Agreements.
original action seeking (1) to prohibit and And even if he has, PCGG may not yet be
"[e]njoin respondents [PCGG and its chairman] compelled to make any disclosure, since the
from privately entering into, perfecting and/or proposed terms and conditions of the
executing any greement with the heirs of the late Agreements have not become effective and
President Ferdinand E. Marcos . . . relating to binding.
and concerning the properties and assets of
Ferdinand Marcos located in the Philippines Respondents further aver that the Marcos heirs
and/or abroad — including the so-called Marcos have submitted the subject Agreements to the
gold hoard"; and (2) to "[c]ompel respondent[s] Sandiganbayan for its approval in Civil Case No.
to make public all negotiations and agreement, 141, entitled Republic v. Heirs of Ferdinand E.
be they ongoing or perfected, and all documents Marcos, and that the Republic opposed such
related to or relating to such negotiations and move on the principal grounds that (1) said
agreement between the PCGG and the Marcos Agreements have not been ratified by or even
heirs."1 submitted to the President for approval,
pursuant to Item No. 8 of the General
The Facts Agreement; and (2) the Marcos heirs have failed
to comply with their undertakings therein,
Petitioner Francisco I. Chavez, as "taxpayer, particularly the collation and submission of an
citizen and former government official who inventory of their assets. The Republic also cited
initiated the prosecution of the Marcoses and an April 11, 1995 Resolution in Civil Case No.
their cronies who committed unmitigated plunder 0165, in which the Sandiganbayan dismissed a
of the public treasury and the systematic similar petition filed by the Marcoses' attorney-
subjugation of the country's economy," alleges in-fact.
 CONSTI LAW II ACJUCO FINALS 14

Furthermore, then President Fidel V. Ramos, in WHEREAS, the FIRST PARTY has obtained a
his May 4, 1998 Memorandum 5 to then PCGG judgment from the Swiss Federal Tribunal of
Chairman Magtanggol Gunigundo, categorically December 21, 1990, that the $356 million
stated: belongs in principle to the Republic of the
Philippines provided certain conditionalities are
This is to reiterate my previous position met, but even after 7 years, the FIRST PARTY
embodied in the Palace Press Release of 6 April has not been able to procure a final judgment of
1995 that I have not authorized you to approve conviction against the PRIVATE PARTY;
the Compromise Agreements of December 28,
1993 or any agreement at all with the Marcoses, WHEREAS, the FIRST PARTY is desirous of
and would have disapproved them had they avoiding a long-drawn out litigation which, as
been submitted to me. proven by the past 7 years, is consuming money,
time and effort, and is counter-productive and
The Full Powers of Attorney of March 1994 and ties up assets which the FIRST PARTY could
July 4, 1994, did not authorize you to approve otherwise utilize for its Comprehensive Agrarian
said Agreements, which I reserve for myself as Reform Program, and other urgent needs;
President of the Republic of the Philippines.
WHEREAS, His Excellency, President Fidel V.
The assailed principal Agreement 6 reads: Ramos, has adopted a policy of unity and
reconciliation in order to bind the nation's
GENERAL AGREEMENT wounds and start the process of rebuilding this
nation as it goes on to the twenty-first century;
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, this Agreement settles all claims
This Agreement entered into this 28th day of and counterclaims which the parties may have
December, 1993, by and between — against one another, whether past, present, or
future, matured or inchoate.
The Republic of the Philippines, through the
Presidential Commission on Good Government NOW, THEREFORE, for and in consideration of
(PCGG), a governmental agency vested with the mutual covenants set forth herein, the
authority defined under Executive Orders Nos. parties agree as follows:
1, 2 and 14, with offices at the philcomcen
Building, Pasig, Metro Manila, represented by its 1. The parties will collate all assets
Chairman referred to as FIRST PARTY, presumed to be owned by, or held by other
parties for the benefit of, the PRIVATE PARTY
— and — for purposes of determining the totality of the
assets covered by the settlement. The subject
Estate of Ferdinand E. Marcos, represented by assets shall be classified by the nature thereof,
Imelda Romualdez Marcos and Ferdinand R. namely: (a) real estate; (b) jewelry; (c) paintings
Marcos, Jr., all of legal age, and with address at and other works of art; (d) securities; (e) funds
c/o No. 154 Lopez Rizal St., Mandaluyong, on deposit; (f) precious metals, if any, and (g)
Metro Manila, and Imelda Romualdez Marcos, miscellaneous assets or assets which could not
Imee Marcos Manotoc, Ferdinand E. Marcos, appropriately fall under any of the preceding
Jr., and Irene Marcos Araneta, hereinafter classification. The list shall be based on the full
collectively referred to as the PRIVATE PARTY. disclosure of the PRIVATE PARTY to insure its
accuracy.
W I T N E S S E T H:
2. Based on the inventory, the FIRST
WHEREAS, the PRIVATE PARTY has been PARTY shall determine which shall be ceded to
impelled by their sense of nationalism and love the FIRST PARTY, and which shall be assigned
of country and of the entire Filipino people, and to/retained by the PRIVATE PARTY. The assets
their desire to set up a foundation and finance of the PRIVATE PARTY shall be net of and
impact projects like installation of power plants exempt from, any form of taxes due the Republic
in selected rural areas and initiation of other of the Philippines. However, considering the
community projects for the empowerment of the unavailability of all pertinent and relevant
people; documents and information as to balances and
 CONSTI LAW II ACJUCO FINALS 15

ownership, the actual specification of assets to 7. This Agreement shall be binding on and
be retained by the PRIVATE PARTY shall be inure to the benefit of, the parties and their
covered by supplemental agreements which respective legal representatives, successors
shall form part of this Agreement. and assigns and shall supersede any other prior
agreement.
3. Foreign assets which the PRIVATE
PARTY shall fully disclose but which are held by 8. The PARTIES shall submit this and any
trustees, nominees, agents or foundations are other implementing Agreements to the President
hereby waived over by the PRIVATE PARTY in of the Philippines for approval. In the same
favor of the FIRST PARTY. For this purpose, the manner, the PRIVATE PARTY shall provide the
parties shall cooperate in taking the appropriate FIRST PARTY assistance by way of testimony
action, judicial and/or extrajudicial, to recover or deposition on any information it may have that
the same for the FIRST PARTY. could shed light on the cases being pursued by
the FIRST PARTY against other parties. The
4. All disclosures of assets made by the FIRST PARTY shall desist from instituting new
PRIVATE PARTY shall not be used as evidence suits already subject of this Agreement against
by the FIRST PARTY in any criminal, civil, tax or the PRIVATE PARTY and cause the dismissal
administrative case, but shall be valid and of all other cases pending in the Sandiganbayan
binding against said PARTY for use by the and in other courts.
FIRST PARTY in withdrawing any account
and/or recovering any asset. The PRIVATE 9. In case of violation by the PRIVATE
PARTY withdraws any objection to the PARTY of any of the conditions herein
withdrawal by and/or release to the FIRST contained, the PARTIES shall be restored
PARTY by the Swiss banks and/or Swiss automatically to the status quo ante the signing
authorities of the $356 million, its accrued of this Agreement.
interests, and/or any other account; over which
the PRIVATE PARTY waives any right, interest For purposes of this Agreement, the PRIVATE
or participation in favor of the FIRST PARTY. PARTY shall be represented by Atty. Simeon M.
However, any withdrawal or release of any Mesina, Jr., as their only Attorney-in-Fact.
account aforementioned by the FIRST PARTY
shall be made in the presence of any authorized IN WITNESS WHEREOF, the parties have
representative of the PRIVATE PARTY. signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
5. The trustees, custodians, safekeepers,
depositaries, agents, nominees, administrators, PRESIDENTIAL COMMISSION ON
lawyers, or any other party acting in similar
capacity in behalf of the PRIVATE PARTY are GOOD GOVERNMENT
hereby informed through this General
Agreement to insure that it is fully implemented By:
and this shall serve as absolute authority from
both parties for full disclosure to the FIRST [Sgd.] MAGTANGGOL C. GUNIGUNDO
PARTY of said assets and for the FIRST PARTY
to withdraw said account and/or assets and any Chairman
other assets which the FIRST PARTY on its own
or through the help of the PRIVATE PARTY/their ESTATE OF FERDINAND E. MARCOS,
trustees, etc., may discover.
IMELDA R. MARCOS, MA. IMELDA
6. Any asset which may be discovered in
the future as belonging to the PRIVATE PARTY MARCOS-MANOTOC, FERDINAND R.
or is being held by another for the benefit of the
PRIVATE PARTY and which is not included in MARCOS, JR., & IRENE MARCOS-
the list per No. 1 for whatever reason shall
automatically belong to the FIRST PARTY, and ARANETA
the PRIVATE PARTY in accordance with No. 4
above, waives any right thereto. By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

 CONSTI LAW II ACJUCO FINALS 16

[Sgd.] MA. IMELDA MARCOS-MANOTOC In consideration of the foregoing, the parties

hereby agree that the PRIVATE PARTY shall be
FERDINAND R. MARCOS, JR.7 entitled to the equivalent of 25% of the amount
that may be eventually withdrawn from said
[Sgd.] IRENE MARCOS-ARANETA $356 million Swiss deposits.

Assisted by: IN WITNESS WHEREOF, the parties have

signed this instrument this 28th day of
[Sgd.] ATTY. SIMEON M. MESINA, JR. December, 1993, in Makati, Metro Manila.

Counsel & Attorney-in-Fact PRESIDENTIAL COMMISSION ON

Petitioner also denounces this supplement to the GOOD GOVERNMENT

above Agreement:8
By:
SUPPLEMENTAL AGREEMENT
[Sgd.] MAGTANGGOL C. GUNIGUNDO
This Agreement entered into this 28th day of
December, 1993, by and between — Chairman

The Republic of the Philippines, through the ESTATE OF FERDINAND E. MARCOS,

Presidential Commission on Good Government
(PCGG), a governmental agency vested with IMELDA R. MARCOS, MA. IMELDA
authority defined under Executive Orders Nos.
1, 2 and 14, with offices at the Philcomcen MARCOS-MANOTOC, FERDINAND R.
Building, Pasig, Metro Manila, represented by its
Chairman Magtanggol C. Gunigundo, MARCOS, JR., & IRENE MARCOS-
hereinafter referred to as the FIRST PARTY,
ARANETA
— and —
By:
Estate of Ferdinand E. Marcos, represented by
Imelda Romualdez Marcos and Ferdinand R. [Sgd.] IMELDA ROMUALDEZ-MARCOS
Marcos, Jr., all of legal age, and with address at
c/o No. 154 Lopez Rizal St., Mandaluyong, [Sgd.] MA. IMELDA MARCOS-MANOTOC
Metro Manila, and Imelda Romualdez Marcos,
Imee Marcos Manotoc, Ferdinand E. Marcos, FERDINAND R. MARCOS, JR.9
Jr., and Irene Marcos Araneta, hereinafter
collectively referred to as the PRIVATE PARTY. [Sgd.] IRENE MARCOS-ARANETA

W I T N E S S E T H: Assisted by:

The parties in this case entered into a General [Sgd.] ATTY. SIMEON M. MESINA, JR.
Agreement dated Dec. 28, 1993;
Counsel & Attorney-in-Fact
The PRIVATE PARTY expressly reserve their
right to pursue their interest and/or sue over local Acting on a motion of petitioner, the Court issued
assets located in the Philippines against parties a Temporary Restraining Order 10 dated March
other than the FIRST PARTY. 23, enjoining respondents, their agents and/or
representatives from "entering into, or perfecting
The parties hereby agree that all expenses and/or executing any agreement with the heirs
related to the recovery and/or withdrawal of all of the late President Ferdinand E. Marcos
assets including lawyers' fees, agents' fees, relating to and concerning their ill-gotten wealth."
nominees' service fees, bank charges, traveling
expenses and all other expenses related thereto Issues
shall be for the account of the PRIVATE PARTY.
 CONSTI LAW II ACJUCO FINALS 17

The Oral Argument, held on March 16, 1998,

focused on the following issues: Petitioner's Standing

(a) Procedural: Petitioner, on the one hand, explains that as a

taxpayer and citizen, he has the legal personality
(1) Whether or not the petitioner has the to file the instant petition. He submits that since
personality or legal standing to file the instant ill-gotten wealth "belongs to the Filipino people
petition; and and [is], in truth hand in fact, part of the public
treasury," any compromise in relation to it would
(2) Whether or not this Court is the proper constitute a diminution of the public funds, which
court before which this action may be filed. can be enjoined by a taxpayer whose interest is
for a full, if not substantial, recovery of such
(b) Substantive: assets.

(1) Whether or not this Court could require Besides, petitioner emphasize, the matter of
the PCGG to disclose to the public the details of recovering the ill-gotten wealth of the Marcoses
any agreement, perfected or not, with the is an issue "of transcendental importance the
Marcoses; and public." He asserts that ordinary taxpayers have
a right to initiate and prosecute actions
(2) Whether or not there exist any legal questioning the validity of acts or orders of
restraints against a compromise agreement government agencies or instrumentalities, if the
between the Marcoses and the PCGG relative to issues raised are "of paramount public interest;"
the Marcoses' ill-gotten wealth. 11 and if they "immeasurably affect the social,
economic, and moral well-being of the people."
After their oral presentations, the parties filed
their respective memoranda. Moreover, the mere fact that he is a citizen
satisfies the requirement of personal interest,
On August 19, 1998, Gloria, Celnan, Scarlet and when the proceeding involves the assertion of a
Teresa, all surnamed Jopson, filed before the public right, 14 such as in this case. He invokes
Court a Motion for Intervention, attaching thereto several decisions 15 of this Court which have set
their Petition in Intervention. They aver that they aside the procedural matter of locus standi,
are "among the 10,000 claimants whose right to when the subject of the case involved public
claim from the Marcos Family and/or the Marcos interest.
Estate is recognized by the decision in In re
Estate of Ferdinand Marcos, Human Rights On the other hand, the solicitor general, on
Litigation, Maximo Hilao, et al., Class Plaintiffs behalf of respondents, contends that petitioner
No. 92-15526, U.S. Court of Appeals for the 9th has no standing to institute the present action,
Circuit US App. Lexis 14796, June 16, 1994 and because no expenditure of public funds is
the Decision of the Swiss Supreme Court of involved and said petitioner has no actual
December 10, 1997." As such, they claim to interest in the alleged agreement. Respondents
have personal and direct interest in the subject further insist that the instant petition is
matter of the instant case, since a distribution or premature, since there is no showing that
disposition of the Marcos properties may petitioner has requested PCGG to disclose any
adversely affect their legitimate claims. In a such negotiations and agreements; or that, if he
minute Resolution issued on August 24, 1998, has, the Commission has refused to do so.
the Court granted their motion to intervene and
required the respondents to comment thereon. Indeed, the arguments cited by petitioner
The September 25, 1998 Comment 12 of the constitute the controlling decisional rule as
solicitor general on said motion merely reiterated regards his legal standing to institute the instant
his aforecited arguments against the main petition. Access to public documents and
petition. 13 records is a public right, and the real parties in
interest are the people themselves. 16
The Court's Ruling
In Tañada v. Tuvera, 17 the Court asserted that
The petition id imbued with merit. when the issue concerns a public a right and the
object of mandamus is to obtain the enforcement
First Procedural Issue: of a public duty, the people are regarded as the
 CONSTI LAW II ACJUCO FINALS 18

real parties in interest; and because it is standing of the Jopsons is not seriously
sufficient that petitioner is a citizen and as such contested by the solicitor general. Indeed, said
is interested in the execution of the laws, he petitioners-intervenors have a legal interest in
need not show that he has any legal or special the subject matter of the instant case, since a
interest in the result of the action. 18 In the distribution or disposition of the Marcoses' ill-
aforesaid case, the petitioners sought to enforce gotten properties may adversely affect the
their right to be informed on matters of public satisfaction of their claims.
concern, a right then recognized in Section 6,
Article IV of the 1973 Constitution, 19 in Second Procedural Issue:
connection with the rule that laws in order to be
valid and enforceable must be published in the The Court's Jurisdiction
Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal Petitioner asserts that because this petition is an
standing, the Court declared that the right they original action for mandamus and one that is not
sought to be enforced "is a public right intended to delay any proceeding in the
recognized by no less than the fundamental law Sandiganbayan, its having been filed before this
of the land." Court was proper. He invokes Section 5, Article
VIII of the Constitution, which confers upon the
Legaspi v. Civil Service Commission, 20 while Supreme Court original jurisdiction over petitions
reiterating Tañada, further declared that "when a for prohibition and mandamus.
mandamus proceeding involves the assertion of
a public right, the requirement of personal The solicitor general, on the other hand, argues
interest is satisfied by the mere fact that that the petition has been erroneously brought
petitioner is a citizen and, therefore, part of the before this Court, since there is neither a
general 'public' which possesses the right." 21 justiciable controversy nor a violation of
petitioner's rights by the PCGG. He alleges that
Further, in Albano v. Reyes, 22 we said that the assailed agreements are already the very lis
while expenditure of public funds may not have mota in Sandiganbayan Civil Case No. 0141,
been involved under the questioned contract for which has yet to dispose of the issue; thus, this
the development, the management and the petition is premature. Furthermore, respondents
operation of the Manila International Container themselves have opposed the Marcos heirs'
Terminal, "public interest [was] definitely motion, filed in the graft court, for the approval of
involved considering the important role [of the the subject Agreements. Such opposition belies
subject contract] . . . in the economic petitioner's claim that the government, through
development of the country and the magnitude respondents, has concluded a settlement with
of the financial consideration involved." We the Marcoses as regards their alleged ill-gotten
concluded that, as a consequence, the assets.
disclosure provision in the Constitution would
constitute sufficient authority for upholding the In Tañada and Legaspi, we upheld therein
petitioner's standing. petitioners' resort to a mandamus proceeding,
seeking to enforce a public right as well as to
Similarly, the instant petition is anchored on the compel performance of a public duty mandated
right of the people to information and access to by no less than the fundamental law. 23 Further,
official records, documents and papers — a right Section 5, Article VIII of the Constitution,
guaranteed under Section 7, Article III of the expressly confers upon the Supreme Court
1987 Constitution. Petitioner, a former solicitor original jurisdiction over petitions for certiorari,
general, is a Filipino citizen. Because of the prohibition, mandamus, quo warranto and
satisfaction of the two basic requisites laid down habeas corpus.
by decisional law to sustain petitioner's legal
standing, i.e. (1) the enforcement of a public right Respondents argue that petitioner should have
(2) espoused by a Filipino citizen, we rule that properly sought relief before the
the petition at bar should be allowed. Sandiganbayan, particularly in Civil Case No.
0141, in which the enforcement of the
In any event, the question on the standing of compromise Agreements is pending resolution.
Petitioner Chavez is rendered moot by the There may seem to be some merit in such
intervention of the Jopsons, who are among the argument, if petitioner is merely seeking to
legitimate claimants to the Marcos wealth. The enjoin the enforcement of the compromise
 CONSTI LAW II ACJUCO FINALS 19

and/or to compel the PCGG to disclose to the they are not aware of any ongoing negotiation
public the terms contained in said Agreements. for another compromise with the Marcoses
However, petitioner is here seeking the public regarding their alleged ill-gotten assets.
disclose of "all negotiations and agreement, be
they ongoing or perfected, and documents The "information" and the "transactions" referred
related to or relating to such negotiations and to in the subject provisions of the Constitution
agreement between the PCGG and the Marcos have as yet no defined scope and extent. There
heirs." are no specific laws prescribing the exact
limitations within which the right may be
In other words, this petition is not confined to the exercised or the correlative state duty may be
Agreements that have already been drawn, but obliged. However, the following are some of the
likewise to any other ongoing or future recognized restrictions: (1) national security
undertaking towards any settlement on the matters and intelligence information, (2) trade
alleged Marcos loot. Ineluctably, the core issue secrets and banking transactions, (3) criminal
boils down to the precise interpretation, in terms matters, and (4) other confidential information.
of scope, of the twin constitutional provisions on
"public transactions." This broad and Limitations to the Right:
prospective relief sought by the instant petition
brings it out of the realm of Civil Case No. 0141. (1) National Security Matters

First Substantive Issue: At the very least, this jurisdiction recognizes the
common law holding that there is a
Public Disclosure of Terms of Any Agreement, governmental privilege against public disclosure
Perfected or Not with respect to state secrets regarding military,
diplomatic and other national security matters.
In seeking the public disclosure of negotiations 24 But where there is no need to protect such
and agreements pertaining to a compromise state secrets, the privilege may not be invoked
settlement with the Marcoses as regards their to withhold documents and other information, 25
alleged ill-gotten wealth, petitioner invokes the provided that they are examined "in strict
following provisions of the Constitution: confidence" and given "scrupulous protection."

Sec. 7 [Article III]. The right of the people to Likewise, information on inter-government
information on matters of public concern shall be exchanges prior to the conclusion of treaties and
recognized. Access to official records, and to executive agreements may be subject to
documents, and papers pertaining to official reasonable safeguards for the sake of national
acts, transactions, or decisions, as well as to interest. 26
government research data used as basis for
policy development, shall be afforded the citizen, (2) Trade Secrets and
subject to such limitations as may be provided
by law. Banking Transactions

Sec. 28 [Article II]. Subject to reasonable The drafters of the Constitution also
conditions prescribed by law, the State adopts unequivocally affirmed that, aside from national
and implements a policy of full public disclosure security matters and intelligence information,
of all its transactions involving public interest. trade or industrial secrets (pursuant to the
Intellectual Property Code 27 and other related
Respondents' opposite view is that the above laws) as well as banking transactions (pursuant
constitutional provisions refer to completed and to the Secrecy of Bank Deposits Act 28) are also
operative official acts, not to those still being exempted from compulsory disclosure. 29
considered. As regards the assailed
Agreements entered into by the PCGG with the (3) Criminal Matters
Marcoses, there is yet no right of action that has
accrued, because said Agreements have not Also excluded are classified law enforcement
been approved by the President, and the Marcos matters, such as those relating to the
heirs have failed to fulfill their express apprehension, the prosecution and the detention
undertaking therein. Thus, the Agreements have of criminals, 30 which courts may nor inquire into
not become effective. Respondents add that prior to such arrest, detention and prosecution.
 CONSTI LAW II ACJUCO FINALS 20

Efforts at effective law enforcement would be actions and conduct of citizens, as held in
seriously jeopardized by free public access to, Tañada. Likewise did the "public nature of the
for example, police information regarding rescue loanable funds of the GSIS and the public office
operations, the whereabouts of fugitives, or held by the alleged borrowers (members of the
leads on covert criminal activities. defunct Batasang Pambansa)" qualify the
information sought in Valmonte as matters of
(4) Other Confidential Information public interest and concern. In Aquino-
Sarmiento v. Morato, 36 the Court also held that
The Ethical Standards Act 31 further prohibits official acts of public officers done in pursuit if
public officials and employees from using or their official functions are public in character;
divulging "confidential or classified information hence, the records pertaining to such official
officially known to them by reason of their office acts and decisions are within the ambit of the
and not made available to the public." 32 constitutional right of access to public records.

Other acknowledged limitations to information Under Republic Act No. 6713, public officials
access include diplomatic correspondence, and employees are mandated to "provide
closed door Cabinet meetings and executive information on their policies and procedures in
sessions of either house of Congress, as well as clear and understandable language, [and]
the internal deliberations of the Supreme Court. ensure openness of information, public
33 consultations and hearings whenever
appropriate . . .," except when "otherwise
Scope: Matters of Public Concern and provided by law or when required by the public
Transactions Involving Public Interest interest." In particular, the law mandates free
public access, at reasonable hours, to the
In Valmonte v. Belmonte Jr., 34 the Court annual performance reports of offices and
emphasized that the information sought must be agencies of government and government-owned
"matters of public concern," access to which may or controlled corporations; and the statements of
be limited by law. Similarly, the state policy of full assets, liabilities and financial disclosures of all
public disclosure extends only to "transactions public officials and employees. 37
involving public interest" and may also be
"subject to reasonable conditions prescribed by In general, writings coming into the hands of
law." As to the meanings of the terms "public public officers in connection with their official
interest" and "public concern," the Court, in functions must be accessible to the public,
Legaspi v. Civil Service Commission, 35 consistent with the policy of transparency of
elucidated: governmental affairs. This principle is aimed at
affording the people an opportunity to determine
In determining whether or not a particular whether those to whom they have entrusted the
information is of public concern there is no rigid affairs of the government are honesty, faithfully
test which can be applied. "Public concern" like and competently performing their functions as
"public interest" is a term that eludes exact public servants. 38 Undeniably, the essence of
definition. Both terms embrace a broad democracy lies in the free flow of thought; 39 but
spectrum of subjects which the public may want thoughts and ideas must be well-informed so
to know, either because these directly affect that the public would gain a better perspective of
their lives, or simply because such matters vital issues confronting them and, thus, be able
naturally arouse the interest of an ordinary to criticize as well as participate in the affairs of
citizen. In the final analysis, it is for the courts to the government in a responsible, reasonable
determine on a case by case basis whether the and effective manner. Certainly, it is by ensuring
matter at issue is of interest or importance, as it an unfettered and uninhibited exchange of ideas
relates to or affects the public. among a well-informed public that a government
remains responsive to the changes desired by
Considered a public concern in the above- the people. 40
mentioned case was the "legitimate concern of
citizens to ensure that government positions The Nature of the Marcoses' Alleged Ill-
requiring civil service eligibility are occupied only Gotten Wealth
by persons who are eligibles." So was the need
to give the general public adequate notification We now come to the immediate matter under
of various laws that regulate and affect the consideration.
 CONSTI LAW II ACJUCO FINALS 21

"resulting in their unjust enrichment and causing

Upon the departure from the country of the grave damage and prejudice to the Filipino
Marcos family and their cronies in February people and the Republic of the Philippines."
1986, the new government headed by President Clearly, the assets and properties referred to
Corazon C. Aquino was specifically mandated to supposedly originated from the government
"[r]ecover ill-gotten properties amassed by the itself. To all intents and purposes, therefore, they
leaders and supporters of the previous regime belong to the people. As such, upon
and [to] protect the interest of the people through reconveyance they will be returned to the public
orders of sequestration or freezing of assets or treasury, subject only to the satisfaction of
accounts." 41 Thus, President Aquino's very first positive claims of certain persons as may be
executive orders (which partook of the nature of adjudged by competent courts. Another
legislative enactments) dealt with the recovery of declared overriding consideration for the
these alleged ill-gotten properties. expeditious recovery of ill-gotten wealth is that it
may be used for national economic recovery.
Executive Order No. 1, promulgated on
February 28, 1986, only two (2) days after the We believe the foregoing disquisition settles the
Marcoses fled the country, created the PCGG question of whether petitioner has a right to
which was primarily tasked to assist the respondents' disclosure of any agreement that
President in the recovery of vast government may be arrived at concerning the Marcoses'
resources allegedly amassed by former purported ill-gotten wealth.
President Marcos, his immediate family,
relatives and close associates both here and Access to Information on Negotiating Terms
abroad.
But does the constitutional provision likewise
Under Executive Order No. 2, issued twelve (12) guarantee access to information regarding
days later, all persons and entities who had ongoing negotiations or proposals prior to the
knowledge or possession of ill-gotten assets and final agreement? This same clarification was
properties were warned and, under pain of sought and clearly addressed by the
penalties prescribed by law, prohibited from constitutional commissioners during their
concealing, transferring or dissipating them or deliberations, which we quote hereunder: 43
from otherwise frustrating or obstructing the
recovery efforts of the government. MR. SUAREZ. And when we say "transactions"
which should be distinguished from contracts,
On May 7, 1986, another directive (EO No. 14) agreements, or treaties or whatever, does the
was issued giving additional powers to the Gentleman refer to the steps leading to the
PCGG which, taking into account the overriding consummation of the contract, or does he refer
considerations of national interest and national to the contract itself?
survival, required it to achieve expeditiously and
effectively its vital task of recovering ill-gotten MR. OPLE. The "transactions" used here, I
wealth. suppose, is generic and, therefore, it can cover
both steps leading to a contract, and already a
With such pronouncements of our government, consummated contract, Mr. Presiding Officer.
whose authority emanates from the people,
there is no doubt that the recovery of the MR. SUAREZ. This contemplates inclusion of
Marcoses' alleged ill-gotten wealth is a matter of negotiations leading to the consummation of the
public concern and imbued with public interest. transaction?
42 We may also add that "ill-gotten wealth," by
its very nature, assumes a public character. MR. OPLE. Yes, subject to reasonable
Based on the aforementioned Executive Orders, safeguards on the national interest.
"ill-gotten wealth" refers to assets and properties
purportedly acquired, directly or indirectly, by Considering the intent of the Constitution, we
former President Marcos, his immediate family, believe that it is incumbent upon the PCGG and
relatives and close associates through or as a its officers, as well as other government
result of their improper or illegal use of representatives, to disclose sufficient public
government funds or properties; or their having information on any proposed settlement they
taken undue advantage of their public office; or have decided to take up with the ostensible
their use of powers, influences or relationships, owners and holders of ill-gotten wealth. Such
 CONSTI LAW II ACJUCO FINALS 22

information, though, must pertain to definite fair settlement. 50 As an incentive, a court may
propositions of the government, not necessarily mitigate damages to be paid by a losing party
to intra-agency or inter-agency who shows a sincere desire to compromise. 51
recommendations or communications 44 during
the stage when common assertions are still in In Republic & Campos Jr. v. Sandiganbayan, 52
the process of being formulated or are in the which affirmed the grant by the PCGG of civil
"exploratory" stage. There is a need, of course, and criminal immunity to Jose Y. Campos and
to observe the same restrictions on disclosure of the family, the Court held that in the absence an
information in general, as discussed earlier — express prohibition, the rule on compromises in
such as on matters involving national security, civil actions under the Civil Code is applicable to
diplomatic or foreign relations, intelligence and PCGG cases. Such principle is pursuant to the
other classified information. objectives of EO No. 14 particularly the just and
expeditious recovery of ill-gotten wealth, so that
Second Substantive Issue: it may be used to hasten economic recovery.
The same principle was upheld in Benedicto v.
Legal Restraints on a Marcos-PCGG Board of Administrators of Television Stations
Compromise RPN, BBC and IBC 53 and Republic v.
Benedicto, 54 which ruled in favor of the validity
Petitioner lastly contends that any compromise of the PCGG compromise agreement with
agreement between the government and the Roberto S. Benedicto.
Marcoses will be a virtual condonation of all the
alleged wrongs done by them, as well as an Immunity from
unwarranted permission to commit graft and
corruption. Criminal Prosecution

Respondents, for their part, assert that there is However, any compromise relating to the civil
no legal restraint on entering into a compromise liability arising from an offense does not
with the Marcos heirs, provided the agreement automatically terminate the criminal proceeding
does not violate any law. against or extinguish the criminal liability of the
malefactor. 55 While a compromise in civil suits
Prohibited Compromises is expressly authorized by law, there is no similar
general sanction as regards criminal liability.
In general, the law encourages compromises in The authority must be specifically conferred. In
civil cases, except with regard to the following the present case, the power to grant criminal
matters: (1) the civil status of persons, (2) the immunity was confered on PCGG by Section 5
validity of a marriage or a legal separation, (3) of EO No. 14, as amended by EO No. 14-A, whci
any ground for legal separation, (4) future provides:
support, (5) the jurisdiction of courts, and (6)
future legitimate. 45 And like any other contract, Sec. 5.The President Commission on Good
the terms and conditions of a compromise must Government is authorized to grant immunity
not be contrary to law, morals, good customs, from criminal prosecution to any person who
public policy or public order. 46 A compromise is provides information or testifies in any
binding and has the force of law between the investigation conducted by such Commission to
parties, 47 unless the consent of a party is establish the unlawful manner in which any
vitiated — such as by mistake, fraud, violence, respondent, defendant or accused has acquired
intimidation or undue influence — or when there or accumulated the property or properties in
is forgery, or if the terms of the settlment are so question in any case where such information or
palpably unconscionable. In the latter instances, testimony is necessary to ascertain or prove the
the agreement may be invalidated by the courts. latter's guilt or his civil liability. The immunity
48 thereby granted shall be continued to protect the
witness who repeats such testimony before the
Effect of Compromise on Civil Actions Sandiganbayan when required to do so by the
latter or by the Commission.
One of the consequences of a compromise, and
usually its primary object, is to avoid or to end a The above provision specifies that the PCGG
litigation. 49 In fact, the law urges courts to may exercise such authority under these
persuade the parties in a civil case to agree to a conditions: (1) the person to whom criminal
 CONSTI LAW II ACJUCO FINALS 23

immunity is granted provides information or clause does not fully comply with the law. Its
testifies in an investigation conducted by the inclusion in the Agreement may have been only
Commission; (2) the information or testimony an afterthought, conceived in pro forma
pertains to the unlawful manner in which the compliance with Section 5 of EO No. 14, as
respondent, defendant or accused acquired or amended. There is no indication whatsoever that
accumulated ill-gotten property; and (3) such any of the Marcos heirs has indeed provided vital
information or testimony is necessary to information against any respondent or defendant
ascertain or prove guilt or civil liability of such as to the manner in which the latter may have
individual. From the wording of the law, it can be unlawfully acquired public property.
easily deducted that the person referred to is a
witness in the proceeding, not the principal Second, under Item No. 2 of the General
respondent, defendant or accused. Agreement, the PCGG commits to exempt from
all forms of taxes the properties to be retained
Thus, in the case of Jose Y. Campos, the grant by the Marcos heirs. This is a clear violation of
of both civil and criminal immunity to him and his the Construction. The power to tax and to grant
family was "[i]n consideration of the full tax exemptions is vested in the Congress and, to
cooperation of Mr. Jose Y. Campos [with] this a certain extent, in the local legislative bodies.
Commission, his voluntary surrender of the 58 Section 28 (4), Article VI of the Constitution,
properties and assets [—] disclosed and specifically provides: "No law granting any tax
declared by him to belong to deposed President exemption shall be passed without the
Ferdinand E. Marcos [—] to the Government of concurrence of a majority of all the Member of
the Republic of the Philippines[;] his full, the Congress." The PCGG has absolutely no
complete and truthful disclosures[;] and his power to grant tax exemptions, even under the
commitment to pay a sum of money as cover of its authority to compromise ill-gotten
determined by the Philippine Government." 56 wealth cases.
Moreover, the grant of criminal immunity to the
Camposes and the Benedictos was limited to Even granting that Congress enacts a law
acts and omissions prior to February 25, 1996. exempting the Marcoses form paying taxes on
At the time such immunity was granted, no their properties, such law will definitely not pass
criminal cases have yet been filed against them the test of the equal protection clause under the
before the competent court. Bill of Rights. Any special grant of tax exemption
in favor only of the Marcos heirs will constitute
Validity of the PCGG-Marcos Compromise class legislation. It will also violate the
Agreements constitutional rule that "taxation shall be uniform
and equitable." 59
Going now to the subject General and
Supplemental Agreements between the PCGG Neither can the stipulation be construed to fall
and the Marcos heirs, a cursory perusal thereof within the power of the commissioner of internal
reveals serious legal flaws. First, the revenue to compromise taxes. Such authority
Agreements do not conform to the above may be exercised only when (1) there is
requirements of EO Nos. 14 and 14-A. We reasonable doubt as to the validity of the claim
believe that criminal immunity under Section 5 against the taxpayer, and (2) the taxpayer's
cannot be granted to the Marcoses, who are the financial position demonstrates a clear inability
principal defendants in the spate of ill-gotten to pay. 60 Definitely, neither requisite is present
wealth cases now pending before the in the case of the Marcoses, because under the
Sandiganbayan. As stated earlier, the provision Agreement they are effectively conceding the
is applicable mainly to witnesses who provide validity of the claims against their properties,
information or testify against a respondent, part of which they will be allowed to retain. Nor
defendant or accused in an ill-gotten wealth can the PCGG grant of tax exemption fall within
case. the power of the commissioner to abate or
cancel a tax liability. This power can be
While the General Agreement states that the exercised only when (1) the tax appears to be
Marcoses "shall provide the [government] unjustly or excessively assessed, or (2) the
assistance by way of testimony or deposition on administration and collection costs involved do
any information [they] may have that could shed not justify the collection of the tax due. 61 In this
light on the cases being pursued by the instance, the cancellation of tax liability is done
[government] against other parties," 57 the even before the determination of the amount
 CONSTI LAW II ACJUCO FINALS 24

due. In any event, criminal violations of the Tax sets a dangerous precedent for public
Code, for which legal actions have been filed in accountability. It is a virtual warrant for public
court or in which fraud is involved, cannot be officials to amass public funds illegally, since
compromised. 62 there is an open option to compromise their
liability in exchange for only a portion of their ill-
Third, the government binds itself to cause the gotten wealth.
dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other Fifth, the Agreements do not provide for a
court. 63 This is a direct encroachment on definite or determinable period within which the
judicial powers, particularly in regard to criminal parties shall fulfill their respective prestations. It
jurisdiction. Well-settled is the doctrine that once may take a lifetime before the Marcoses submit
a case has been filed before a court of an inventory of their total assets.
competent jurisdiction, the matter of its dismissal
or pursuance lies within the full discretion and Sixth, the Agreements do not state with
control of the judge. In a criminal case, the specificity the standards for determining which
manner in which the prosecution is handled, assets shall be forfeited by the government and
including the matter of whom to present as which shall be retained by the Marcoses. While
witnesses, may lie within the sound discretion of the Supplemental Agreement provides that the
the government prosecution; 64 but the court Marcoses shall be entitled to 25 per cent of the
decides, based on the evidence proffered, in $356 million Swiss deposits (less government
what manner it will dispose of the case. recovery expenses), such sharing arrangement
Jurisdiction, once acquired by the trial court, is pertains only to the said deposits. No similar
not lost despite a resolution, even by the justice splitting scheme is defined with respect to the
secretary, to withdraw the information or to other properties. Neither is there, anywhere in
dismiss the complaint. 65 The prosecution's the Agreements, a statement of the basis for the
motion to withdraw or to dismiss is not the least 25-75 percent sharing ratio. Public officers
binding upon the court. On the contrary, entering into an arrangement appearing to be
decisional rules require the trial court to make its manifestly and grossly disadvantageous to the
own evaluation of the merit of the case, because government, in violation of the Ati-Graft and
granting such motion is equivalent to effecting a Corruption Practice Act, 69 invite their
disposition of the case itself. 66 indictment for corruption under the said law.

Thus, the PCGG, as the government prosecutor Finally, the absence of then President Ramos'
of ill-gotten wealth cases, cannot guarantee the approval of the principal Agreement, an express
dismissal of all such criminal cases against the condition therein, renders the compromise
Marcoses pending in the courts, for said incomplete and unenforceable. Nevertheless, as
dismissal is not within its sole power and detailed above, even if such approval were
discretion. obtained, the Agreements would still not be
valid.
Fourth, the government also waives all claims
and counterclaims, "whether past, present, or From the foregoing disquisition, it is crystal clear
future, matured or inchoate," against the to the Court that the General and Supplemental
Marcoses. 67 Again, this ill-encompassing Agreements, both dated December 28, 1993,
stipulation is contrary to law. Under the Civil which the PCGG entered into with the Marcos
Code, an action for future fraud may not be heirs, are violative of the Constitution and the
waived. 68 The stipulation in the Agreement laws aforementioned.
does not specify the exact scope of future claims
against the Marcoses that the government WHEREFORE, the petition is GRANTED. The
thereby relinquishes. Such vague and broad General and Supplemental Agreement dated
statement may well be interpreted to include all December 28, 1993, which PCGG and the
future illegal acts of any of the Marcos heirs, Marcos heirs entered into are hereby declared
practically giving them a license to perpetrate NULL AND VOID for being contrary to law and
fraud against the government without any the Constitution. Respondent PCGG, its officers
liability at all. This is a palpable violation of the and all government functionaries and officials
due process and equal protection guarantees of who are or may be directly ot indirectly involved
the Constitution. It effectively ensconces the in the recovery of the alleged ill-gotten wealth of
Marcoses beyond the reach of the law. It also the Marcoses and their associates are
 CONSTI LAW II ACJUCO FINALS 25

DIRECTED to disclose to the public the terms of

any proposed compromise settlment, 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 cost.

SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 26

Investments and lead negotiator for

G.R. No. 170516 July 16, 2008 Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as Director for
AKBAYAN CITIZENS ACTION PARTY the Bureau of Product Standards of the DTI
("AKBAYAN"), PAMBANSANG KATIPUNAN and lead negotiator for Mutual Recognition
NG MGA SAMAHAN SA KANAYUNAN of the JPEPA, LOUIE CALVARIO, in his
("PKSK"), ALLIANCE OF PROGRESSIVE capacity as lead negotiator for Intellectual
LABOR ("APL"), VICENTE A. FABE, Property of the JPEPA, ELMER H. DORADO,
ANGELITO R. MENDOZA, MANUEL P. in his capacity as Officer-in-Charge of the
QUIAMBAO, ROSE BEATRIX CRUZ- Government Procurement Policy Board
ANGELES, CONG. LORENZO R. TANADA III, Technical Support Office, the government
CONG. MARIO JOYO AGUJA, CONG. agency that is leading the negotiations on
LORETA ANN P. ROSALES, CONG. ANA Government Procurement of the JPEPA,
THERESIA HONTIVEROS-BARAQUEL, AND RICARDO V. PARAS, in his capacity as Chief
CONG. EMMANUEL JOEL J. VILLANUEVA, State Counsel of the Department of Justice
Petitioners, (DOJ) and lead negotiator for Dispute
vs. Avoidance and Settlement of the JPEPA,
THOMAS G. AQUINO, in his capacity as ADONIS SULIT, in his capacity as lead
Undersecretary of the Department of Trade negotiator for the General and Final
and Industry (DTI) and Chairman and Chief Provisions of the JPEPA, EDUARDO R.
Delegate of the Philippine Coordinating ERMITA, in his capacity as Executive
Committee (PCC) for the Japan-Philippines Secretary, and ALBERTO ROMULO, in his
Economic Partnership Agreement, EDSEL T. capacity as Secretary of the DFA,*
CUSTODIO, in his capacity as Respondents.
Undersecretary of the Department of Foreign
Affairs (DFA) and Co-Chair of the PCC for the DECISION
JPEPA, EDGARDO ABON, in his capacity as
Chairman of the Tariff Commission and lead CARPIO MORALES, J.:
negotiator for Competition Policy and
Emergency Measures of the JPEPA, Petitioners – non-government organizations,
MARGARITA SONGCO, in her capacity as Congresspersons, citizens and taxpayers – seek
Assistant Director-General of the National via the present petition for mandamus and
Economic Development Authority (NEDA) prohibition to obtain from respondents the full
and lead negotiator for Trade in Services and text of the Japan-Philippines Economic
Cooperation of the JPEPA, MALOU Partnership Agreement (JPEPA) including the
MONTERO, in her capacity as Foreign Philippine and Japanese offers submitted during
Service Officer I, Office of the the negotiation process and all pertinent
Undersecretary for International Economic attachments and annexes thereto.
Relations of the DFA and lead negotiator for
the General and Final Provisions of the Petitioners Congressmen Lorenzo R. Tañada III
JPEPA, ERLINDA ARCELLANA, in her and Mario Joyo Aguja filed on January 25, 2005
capacity as Director of the Board of House Resolution No. 551 calling for an inquiry
Investments and lead negotiator for Trade in into the bilateral trade agreements then being
Goods (General Rules) of the JPEPA, negotiated by the Philippine government,
RAQUEL ECHAGUE, in her capacity as lead particularly the JPEPA. The Resolution became
negotiator for Rules of Origin of the JPEPA, the basis of an inquiry subsequently conducted
GALLANT SORIANO, in his official capacity by the House Special Committee on
as Deputy Commissioner of the Bureau of Globalization (the House Committee) into the
Customs and lead negotiator for Customs negotiations of the JPEPA.
Procedures and Paperless Trading of the
JPEPA, MA. LUISA GIGETTE IMPERIAL, in In the course of its inquiry, the House Committee
her capacity as Director of the Bureau of requested herein respondent Undersecretary
Local Employment of the Department of Tomas Aquino (Usec. Aquino), Chairman of the
Labor and Employment (DOLE) and lead Philippine Coordinating Committee created
negotiator for Movement of Natural Persons under Executive Order No. 213 ("Creation of A
of the JPEPA, PASCUAL DE GUZMAN, in his Philippine Coordinating Committee to Study the
capacity as Director of the Board of Feasibility of the Japan-Philippines Economic
 CONSTI LAW II ACJUCO FINALS 27

Partnership Agreement")1 to study and by Committee Chairman Congressman Teves’

negotiate the proposed JPEPA, and to furnish information, then House Speaker Jose de
the Committee with a copy of the latest draft of Venecia had requested him to hold in abeyance
the JPEPA. Usec. Aquino did not heed the the issuance of the subpoena until the President
request, however. gives her consent to the disclosure of the
documents.3
Congressman Aguja later requested for the
same document, but Usec. Aquino, by letter of Amid speculations that the JPEPA might be
November 2, 2005, replied that the signed by the Philippine government within
Congressman shall be provided with a copy December 2005, the present petition was filed
thereof "once the negotiations are completed on December 9, 2005.4 The agreement was to
and as soon as a thorough legal review of the be later signed on September 9, 2006 by
proposed agreement has been conducted." President Gloria Macapagal-Arroyo and
Japanese Prime Minister Junichiro Koizumi in
In a separate move, the House Committee, Helsinki, Finland, following which the President
through Congressman Herminio G. Teves, endorsed it to the Senate for its concurrence
requested Executive Secretary Eduardo Ermita pursuant to Article VII, Section 21 of the
to furnish it with "all documents on the subject Constitution. To date, the JPEPA is still being
including the latest draft of the proposed deliberated upon by the Senate.
agreement, the requests and offers etc."2 Acting
on the request, Secretary Ermita, by letter of The JPEPA, which will be the first bilateral free
June 23, 2005, wrote Congressman Teves as trade agreement to be entered into by the
follows: Philippines with another country in the event the
Senate grants its consent to it, covers a broad
In its letter dated 15 June 2005 (copy enclosed), range of topics which respondents enumerate as
[the] D[epartment of] F[oreign] A[ffairs] explains follows: trade in goods, rules of origin, customs
that the Committee’s request to be furnished all procedures, paperless trading, trade in services,
documents on the JPEPA may be difficult to investment, intellectual property rights,
accomplish at this time, since the proposed government procurement, movement of natural
Agreement has been a work in progress for persons, cooperation, competition policy, mutual
about three years. A copy of the draft JPEPA will recognition, dispute avoidance and settlement,
however be forwarded to the Committee as soon improvement of the business environment, and
as the text thereof is settled and complete. general and final provisions.5
(Emphasis supplied)
While the final text of the JPEPA has now been
Congressman Aguja also requested NEDA made accessible to the public since September
Director-General Romulo Neri and Tariff 11, 2006,6 respondents do not dispute that, at
Commission Chairman Edgardo Abon, by letter the time the petition was filed up to the filing of
of July 1, 2005, for copies of the latest text of the petitioners’ Reply – when the JPEPA was still
JPEPA. being negotiated – the initial drafts thereof were
Chairman Abon replied, however, by letter of kept from public view.
July 12, 2005 that the Tariff Commission does
not have a copy of the documents being Before delving on the substantive grounds relied
requested, albeit he was certain that Usec. upon by petitioners in support of the petition, the
Aquino would provide the Congressman with a Court finds it necessary to first resolve some
copy "once the negotiation is completed." And by material procedural issues.
letter of July 18, 2005, NEDA Assistant Director-
General Margarita R. Songco informed the Standing
Congressman that his request addressed to
Director-General Neri had been forwarded to For a petition for mandamus such as the one at
Usec. Aquino who would be "in the best position bar to be given due course, it must be instituted
to respond" to the request. by a party aggrieved by the alleged inaction of
any tribunal, corporation, board or person which
In its third hearing conducted on August 31, unlawfully excludes said party from the
2005, the House Committee resolved to issue a enjoyment of a legal right.7 Respondents deny
subpoena for the most recent draft of the that petitioners have such standing to sue. "[I]n
JPEPA, but the same was not pursued because the interest of a speedy and definitive resolution
 CONSTI LAW II ACJUCO FINALS 28

of the substantive issues raised," however, President Arroyo’s endorsement of the JPEPA
respondents consider it sufficient to cite a to the Senate for concurrence is part of the legal
portion of the ruling in Pimentel v. Office of procedures which must be met prior to the
Executive Secretary8 which emphasizes the agreement’s entry into force.
need for a "personal stake in the outcome of the
controversy" on questions of standing. The text of the JPEPA having then been made
accessible to the public, the petition has become
In a petition anchored upon the right of the moot and academic to the extent that it seeks
people to information on matters of public the disclosure of the "full text" thereof.
concern, which is a public right by its very nature,
petitioners need not show that they have any The petition is not entirely moot, however,
legal or special interest in the result, it being because petitioners seek to obtain, not merely
sufficient to show that they are citizens and, the text of the JPEPA, but also the Philippine and
therefore, part of the general public which Japanese offers in the course of the
possesses the right.9 As the present petition is negotiations.12
anchored on the right to information and
petitioners are all suing in their capacity as A discussion of the substantive issues, insofar
citizens and groups of citizens including as they impinge on petitioners’ demand for
petitioners-members of the House of access to the Philippine and Japanese offers, is
Representatives who additionally are suing in thus in order.
their capacity as such, the standing of petitioners
to file the present suit is grounded in Grounds relied upon by petitioners
jurisprudence.
Petitioners assert, first, that the refusal of the
Mootness government to disclose the documents bearing
on the JPEPA negotiations violates their right to
Considering, however, that "[t]he principal relief information on matters of public concern13 and
petitioners are praying for is the disclosure of the contravenes other constitutional provisions on
contents of the JPEPA prior to its finalization transparency, such as that on the policy of full
between the two States parties,"10 public public disclosure of all transactions involving
disclosure of the text of the JPEPA after its public interest.14 Second, they contend that
signing by the President, during the pendency of non-disclosure of the same documents
the present petition, has been largely rendered undermines their right to effective and
moot and academic. reasonable participation in all levels of social,
political, and economic decision-making.15
With the Senate deliberations on the JPEPA still Lastly, they proffer that divulging the contents of
pending, the agreement as it now stands cannot the JPEPA only after the agreement has been
yet be considered as final and binding between concluded will effectively make the Senate into
the two States. Article 164 of the JPEPA itself a mere rubber stamp of the Executive, in
provides that the agreement does not take effect violation of the principle of separation of powers.
immediately upon the signing thereof. For it must
still go through the procedures required by the Significantly, the grounds relied upon by
laws of each country for its entry into force, viz: petitioners for the disclosure of the latest text of
the JPEPA are, except for the last, the same as
Article 164 those cited for the disclosure of the Philippine
Entry into Force and Japanese offers.

This Agreement shall enter into force on the The first two grounds relied upon by petitioners
thirtieth day after the date on which the which bear on the merits of respondents’ claim
Governments of the Parties exchange of privilege shall be discussed. The last, being
diplomatic notes informing each other that their purely speculatory given that the Senate is still
respective legal procedures necessary for entry deliberating on the JPEPA, shall not.
into force of this Agreement have been
completed. It shall remain in force unless The JPEPA is a matter of public concern
terminated as provided for in Article 165.11
(Emphasis supplied) To be covered by the right to information, the
information sought must meet the threshold
 CONSTI LAW II ACJUCO FINALS 29

requirement that it be a matter of public concern. respondents particularly respondent DTI Senior
Apropos is the teaching of Legaspi v. Civil Undersecretary.
Service Commission:
The documents on the proposed JPEPA as well
In determining whether or not a particular as the text which is subject to negotiations and
information is of public concern there is no rigid legal review by the parties fall under the
test which can be applied. ‘Public concern’ like exceptions to the right of access to information
‘public interest’ is a term that eludes exact on matters of public concern and policy of public
definition. Both terms embrace a broad disclosure. They come within the coverage of
spectrum of subjects which the public may want executive privilege. At the time when the
to know, either because these directly affect Committee was requesting for copies of such
their lives, or simply because such matters documents, the negotiations were ongoing as
naturally arouse the interest of an ordinary they are still now and the text of the proposed
citizen. In the final analysis, it is for the courts to JPEPA is still uncertain and subject to change.
determine on a case by case basis whether the Considering the status and nature of such
matter at issue is of interest or importance, as it documents then and now, these are evidently
relates to or affects the public.16 (Underscoring covered by executive privilege consistent with
supplied) existing legal provisions and settled
jurisprudence.
From the nature of the JPEPA as an
international trade agreement, it is evident that Practical and strategic considerations likewise
the Philippine and Japanese offers submitted counsel against the disclosure of the "rolling
during the negotiations towards its execution are texts" which may undergo radical change or
matters of public concern. This, respondents do portions of which may be totally abandoned.
not dispute. They only claim that diplomatic Furthermore, the negotiations of the
negotiations are covered by the doctrine of representatives of the Philippines as well as of
executive privilege, thus constituting an Japan must be allowed to explore alternatives in
exception to the right to information and the the course of the negotiations in the same
policy of full public disclosure. manner as judicial deliberations and working
drafts of opinions are accorded strict
Respondents’ claim of privilege confidentiality.22 (Emphasis and underscoring
supplied)
It is well-established in jurisprudence that neither
the right to information nor the policy of full public The ground relied upon by respondents is thus
disclosure is absolute, there being matters not simply that the information sought involves a
which, albeit of public concern or public interest, diplomatic matter, but that it pertains to
are recognized as privileged in nature. The types diplomatic negotiations then in progress.
of information which may be considered
privileged have been elucidated in Almonte v. Privileged character of diplomatic negotiations
Vasquez,17 Chavez v. PCGG,18 Chavez v.
Public Estate’s Authority,19 and most recently in The privileged character of diplomatic
Senate v. Ermita20 where the Court reaffirmed negotiations has been recognized in this
the validity of the doctrine of executive privilege jurisdiction. In discussing valid limitations on the
in this jurisdiction and dwelt on its scope. right to information, the Court in Chavez v.
PCGG held that "information on inter-
Whether a claim of executive privilege is valid government exchanges prior to the conclusion of
depends on the ground invoked to justify it and treaties and executive agreements may be
the context in which it is made.21 In the present subject to reasonable safeguards for the sake of
case, the ground for respondents’ claim of national interest."23 Even earlier, the same
privilege is set forth in their Comment, viz: privilege was upheld in People’s Movement for
Press Freedom (PMPF) v. Manglapus24
x x x The categories of information that may be wherein the Court discussed the reasons for the
considered privileged includes matters of privilege in more precise terms.
diplomatic character and under negotiation and
review. In this case, the privileged character of In PMPF v. Manglapus, the therein petitioners
the diplomatic negotiations has been were seeking information from the President’s
categorically invoked and clearly explained by representatives on the state of the then on-going
 CONSTI LAW II ACJUCO FINALS 30

negotiations of the RP-US Military Bases widespread propaganda to block the

Agreement.25 The Court denied the petition, negotiations. After a treaty has been drafted and
stressing that "secrecy of negotiations with its terms are fully published, there is ample
foreign countries is not violative of the opportunity for discussion before it is approved.
constitutional provisions of freedom of speech or (The New American Government and Its Works,
of the press nor of the freedom of access to James T. Young, 4th Edition, p. 194) (Emphasis
information." The Resolution went on to state, and underscoring supplied)
thus:
Still in PMPF v. Manglapus, the Court adopted
The nature of diplomacy requires centralization the doctrine in U.S. v. Curtiss-Wright Export
of authority and expedition of decision which are Corp.26 that the President is the sole organ of
inherent in executive action. Another essential the nation in its negotiations with foreign
characteristic of diplomacy is its confidential countries, viz:
nature. Although much has been said about
"open" and "secret" diplomacy, with "x x x In this vast external realm, with its
disparagement of the latter, Secretaries of State important, complicated, delicate and manifold
Hughes and Stimson have clearly analyzed and problems, the President alone has the power to
justified the practice. In the words of Mr. speak or listen as a representative of the nation.
Stimson: He makes treaties with the advice and consent
of the Senate; but he alone negotiates. Into the
"A complicated negotiation . . . cannot be carried field of negotiation the Senate cannot intrude;
through without many, many private talks and and Congress itself is powerless to invade it. As
discussion, man to man; many tentative Marshall said in his great argument of March 7,
suggestions and proposals. Delegates from 1800, in the House of Representatives, "The
other countries come and tell you in confidence President is the sole organ of the nation in its
of their troubles at home and of their differences external relations, and its sole representative
with other countries and with other delegates; with foreign nations." Annals, 6th Cong., col.
they tell you of what they would do under certain 613. . . (Emphasis supplied; underscoring in the
circumstances and would not do under other original)
circumstances. . . If these reports . . . should
become public . . . who would ever trust Applying the principles adopted in PMPF v.
American Delegations in another conference? Manglapus, it is clear that while the final text of
(United States Department of State, Press the JPEPA may not be kept perpetually
Releases, June 7, 1930, pp. 282-284.)." confidential – since there should be "ample
opportunity for discussion before [a treaty] is
xxxx approved" – the offers exchanged by the parties
during the negotiations continue to be privileged
There is frequent criticism of the secrecy in even after the JPEPA is published. It is
which negotiation with foreign powers on nearly reasonable to conclude that the Japanese
all subjects is concerned. This, it is claimed, is representatives submitted their offers with the
incompatible with the substance of democracy. understanding that "historic confidentiality"27
As expressed by one writer, "It can be said that would govern the same. Disclosing these offers
there is no more rigid system of silence could impair the ability of the Philippines to deal
anywhere in the world." (E.J. Young, Looking not only with Japan but with other foreign
Behind the Censorship, J. B. Lippincott Co., governments in future negotiations.
1938) President Wilson in starting his efforts for
the conclusion of the World War declared that A ruling that Philippine offers in treaty
we must have "open covenants, openly arrived negotiations should now be open to public
at." He quickly abandoned his thought. scrutiny would discourage future Philippine
representatives from frankly expressing their
No one who has studied the question believes views during negotiations. While, on first
that such a method of publicity is possible. In the impression, it appears wise to deter Philippine
moment that negotiations are started, pressure representatives from entering into compromises,
groups attempt to "muscle in." An ill-timed it bears noting that treaty negotiations, or any
speech by one of the parties or a frank negotiation for that matter, normally involve a
declaration of the concession which are exacted process of quid pro quo, and oftentimes
or offered on both sides would quickly lead to negotiators have to be willing to grant
 CONSTI LAW II ACJUCO FINALS 31

concessions in an area of lesser importance in there being substantial factual distinctions

order to obtain more favorable terms in an area between the two.
of greater national interest. Apropos are the
following observations of Benjamin S. Duval, Jr.: To petitioners, the first and most fundamental
distinction lies in the nature of the treaty
x x x [T]hose involved in the practice of involved. They stress that PMPF v. Manglapus
negotiations appear to be in agreement that involved the Military Bases Agreement which
publicity leads to "grandstanding," tends to necessarily pertained to matters affecting
freeze negotiating positions, and inhibits the national security; whereas the present case
give-and-take essential to successful involves an economic treaty that seeks to
negotiation. As Sissela Bok points out, if regulate trade and commerce between the
"negotiators have more to gain from being Philippines and Japan, matters which, unlike
approved by their own sides than by making a those covered by the Military Bases Agreement,
reasoned agreement with competitors or are not so vital to national security to disallow
adversaries, then they are inclined to 'play to the their disclosure.
gallery . . .'' In fact, the public reaction may leave
them little option. It would be a brave, or foolish, Petitioners’ argument betrays a faulty
Arab leader who expressed publicly a assumption that information, to be considered
willingness for peace with Israel that did not privileged, must involve national security. The
involve the return of the entire West Bank, or recognition in Senate v. Ermita29 that executive
Israeli leader who stated publicly a willingness to privilege has encompassed claims of varying
remove Israel's existing settlements from Judea kinds, such that it may even be more accurate to
and Samaria in return for peace.28 (Emphasis speak of "executive privileges," cautions against
supplied) such generalization.

Indeed, by hampering the ability of our While there certainly are privileges grounded on
representatives to compromise, we may be the necessity of safeguarding national security
jeopardizing higher national goals for the sake of such as those involving military secrets, not all
securing less critical ones. are founded thereon. One example is the
"informer’s privilege," or the privilege of the
Diplomatic negotiations, therefore, are Government not to disclose the identity of a
recognized as privileged in this jurisdiction, the person or persons who furnish information of
JPEPA negotiations constituting no exception. It violations of law to officers charged with the
bears emphasis, however, that such privilege is enforcement of that law.30 The suspect involved
only presumptive. For as Senate v. Ermita holds, need not be so notorious as to be a threat to
recognizing a type of information as privileged national security for this privilege to apply in any
does not mean that it will be considered given instance. Otherwise, the privilege would
privileged in all instances. Only after a be inapplicable in all but the most high-profile
consideration of the context in which the claim is cases, in which case not only would this be
made may it be determined if there is a public contrary to long-standing practice. It would also
interest that calls for the disclosure of the desired be highly prejudicial to law enforcement efforts
information, strong enough to overcome its in general.
traditionally privileged status.
Also illustrative is the privilege accorded to
Whether petitioners have established the presidential communications, which are
presence of such a public interest shall be presumed privileged without distinguishing
discussed later. For now, the Court shall first between those which involve matters of national
pass upon the arguments raised by petitioners security and those which do not, the rationale for
against the application of PMPF v. Manglapus to the privilege being that
the present case.
x x x [a] frank exchange of exploratory ideas and
Arguments proffered by petitioners against the assessments, free from the glare of publicity and
application of PMPF v. Manglapus pressure by interested parties, is essential to
protect the independence of decision-making of
Petitioners argue that PMPF v. Manglapus those tasked to exercise Presidential,
cannot be applied in toto to the present case, Legislative and Judicial power. x x x31
(Emphasis supplied)
 CONSTI LAW II ACJUCO FINALS 32

exchange of exploratory ideas between the

In the same way that the privilege for judicial negotiating parties by shielding such
deliberations does not depend on the nature of negotiations from public view. Similar to the
the case deliberated upon, so presidential privilege for presidential communications, the
communications are privileged whether they diplomatic negotiations privilege seeks, through
involve matters of national security. the same means, to protect the independence in
decision-making of the President, particularly in
It bears emphasis, however, that the privilege its capacity as "the sole organ of the nation in its
accorded to presidential communications is not external relations, and its sole representative
absolute, one significant qualification being that with foreign nations." And, as with the
"the Executive cannot, any more than the other deliberative process privilege, the privilege
branches of government, invoke a general accorded to diplomatic negotiations arises, not
confidentiality privilege to shield its officials and on account of the content of the information per
employees from investigations by the proper se, but because the information is part of a
governmental institutions into possible criminal process of deliberation which, in pursuit of the
wrongdoing." 32 This qualification applies public interest, must be presumed confidential.
whether the privilege is being invoked in the
context of a judicial trial or a congressional The decision of the U.S. District Court, District of
investigation conducted in aid of legislation.33 Columbia in Fulbright & Jaworski v. Department
of the Treasury37 enlightens on the close
Closely related to the "presidential relation between diplomatic negotiations and
communications" privilege is the deliberative deliberative process privileges. The plaintiffs in
process privilege recognized in the United that case sought access to notes taken by a
States. As discussed by the U.S. Supreme Court member of the U.S. negotiating team during the
in NLRB v. Sears, Roebuck & Co,34 deliberative U.S.-French tax treaty negotiations. Among the
process covers documents reflecting advisory points noted therein were the issues to be
opinions, recommendations and deliberations discussed, positions which the French and U.S.
comprising part of a process by which teams took on some points, the draft language
governmental decisions and policies are agreed on, and articles which needed to be
formulated. Notably, the privileged status of amended. Upholding the confidentiality of those
such documents rests, not on the need to protect notes, Judge Green ruled, thus:
national security but, on the "obvious realization
that officials will not communicate candidly Negotiations between two countries to draft a
among themselves if each remark is a potential treaty represent a true example of a deliberative
item of discovery and front page news," the process. Much give-and-take must occur for the
objective of the privilege being to enhance the countries to reach an accord. A description of the
quality of agency negotiations at any one point would not provide
decisionshttp://web2.westlaw.com/find/default. an onlooker a summary of the discussions which
wl?rs=WLW7.07&serialnum=1975129772&fn=_ could later be relied on as law. It would not be
top&sv=Split&tc=-1&findtype=Y&tf=- "working law" as the points discussed and
1&db=708&utid=%7b532A6DBF-9B4C-4A5A- positions agreed on would be subject to change
8F16- at any date until the treaty was signed by the
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fd President and ratified by the Senate.
efault.wl&mt=WLIGeneralSubscription. 35
The policies behind the deliberative process
The diplomatic negotiations privilege bears a privilege support non-disclosure. Much harm
close resemblance to the deliberative process could accrue to the negotiations process if these
and presidential communications privilege. It notes were revealed. Exposure of the pre-
may be readily perceived that the rationale for agreement positions of the French negotiators
the confidential character of diplomatic might well offend foreign governments and
negotiations, deliberative process, and would lead to less candor by the U. S. in
presidential communications is similar, if not recording the events of the negotiations process.
identical. As several months pass in between
negotiations, this lack of record could hinder
The earlier discussion on PMPF v. Manglapus36 readily the U. S. negotiating team. Further
shows that the privilege for diplomatic disclosure would reveal prematurely adopted
negotiations is meant to encourage a frank
 CONSTI LAW II ACJUCO FINALS 33

policies. If these policies should be changed, documents subject of Fulbright being clearly
public confusion would result easily. internal in character, the question of disclosure
therein turned not on the threshold requirement
Finally, releasing these snapshot views of the of Exemption 5 that the document be inter-
negotiations would be comparable to releasing agency, but on whether the documents were
drafts of the treaty, particularly when the notes part of the agency's pre-decisional deliberative
state the tentative provisions and language process. On this basis, Judge Friedman found
agreed on. As drafts of regulations typically are that "Judge Green's discussion [in Fulbright] of
protected by the deliberative process privilege, the harm that could result from disclosure
Arthur Andersen & Co. v. Internal Revenue therefore is irrelevant, since the documents at
Service, C.A. No. 80-705 (D.C.Cir., May 21, issue [in CIEL] are not inter-agency, and the
1982), drafts of treaties should be accorded the Court does not reach the question of deliberative
same protection. (Emphasis and underscoring process." (Emphasis supplied)
supplied)
In fine, Fulbright was not overturned. The court
Clearly, the privilege accorded to diplomatic in CIEL merely found the same to be irrelevant
negotiations follows as a logical consequence in light of its distinct factual setting. Whether this
from the privileged character of the deliberative conclusion was valid – a question on which this
process. Court would not pass – the ruling in Fulbright that
"[n]egotiations between two countries to draft a
The Court is not unaware that in Center for treaty represent a true example of a deliberative
International Environmental Law (CIEL), et al. v. process" was left standing, since the CIEL court
Office of U.S. Trade Representative38 – where explicitly stated that it did not reach the question
the plaintiffs sought information relating to the of deliberative process.
just-completed negotiation of a United States-
Chile Free Trade Agreement – the same district Going back to the present case, the Court
court, this time under Judge Friedman, recognizes that the information sought by
consciously refrained from applying the doctrine petitioners includes documents produced and
in Fulbright and ordered the disclosure of the communicated by a party external to the
information being sought. Philippine government, namely, the Japanese
representatives in the JPEPA negotiations, and
Since the factual milieu in CIEL seemed to call to that extent this case is closer to the factual
for the straight application of the doctrine in circumstances of CIEL than those of Fulbright.
Fulbright, a discussion of why the district court
did not apply the same would help illumine this Nonetheless, for reasons which shall be
Court’s own reasons for deciding the present discussed shortly, this Court echoes the
case along the lines of Fulbright. principle articulated in Fulbright that the public
policy underlying the deliberative process
In both Fulbright and CIEL, the U.S. government privilege requires that diplomatic negotiations
cited a statutory basis for withholding should also be accorded privileged status, even
information, namely, Exemption 5 of the if the documents subject of the present case
Freedom of Information Act (FOIA).39 In order cannot be described as purely internal in
to qualify for protection under Exemption 5, a character.
document must satisfy two conditions: (1) it must
be either inter-agency or intra-agency in nature, It need not be stressed that in CIEL, the court
and (2) it must be both pre-decisional and part of ordered the disclosure of information based on
the agency's deliberative or decision-making its finding that the first requirement of FOIA
process.40 Exemption 5 – that the documents be inter-
agency – was not met. In determining whether
Judge Friedman, in CIEL, himself cognizant of a the government may validly refuse disclosure of
"superficial similarity of context" between the two the exchanges between the U.S. and Chile, it
cases, based his decision on what he perceived necessarily had to deal with this requirement, it
to be a significant distinction: he found the being laid down by a statute binding on them.
negotiator’s notes that were sought in Fulbright
to be "clearly internal," whereas the documents In this jurisdiction, however, there is no
being sought in CIEL were those produced by or counterpart of the FOIA, nor is there any
exchanged with an outside party, i.e. Chile. The statutory requirement similar to FOIA Exemption
 CONSTI LAW II ACJUCO FINALS 34

5 in particular. Hence, Philippine courts, when of considerations [state secrets privilege,

assessing a claim of privilege for diplomatic informer’s privilege, and a generic privilege for
negotiations, are more free to focus directly on internal deliberations], and may be asserted,
the issue of whether the privilege being claimed with differing degrees of success, in the context
is indeed supported by public policy, without of either judicial or legislative investigations,"41
having to consider – as the CIEL court did – if implies that a privilege, once recognized, may be
these negotiations fulfill a formal requirement of invoked under different procedural settings. That
being "inter-agency." Important though that this principle holds true particularly with respect
requirement may be in the context of domestic to diplomatic negotiations may be inferred from
negotiations, it need not be accorded the same PMPF v. Manglapus itself, where the Court held
significance when dealing with international that it is the President alone who negotiates
negotiations. treaties, and not even the Senate or the House
of Representatives, unless asked, may intrude
There being a public policy supporting a upon that process.
privilege for diplomatic negotiations for the
reasons explained above, the Court sees no Clearly, the privilege for diplomatic negotiations
reason to modify, much less abandon, the may be invoked not only against citizens’
doctrine in PMPF v. Manglapus. demands for information, but also in the context
of legislative investigations.
A second point petitioners proffer in their attempt
to differentiate PMPF v. Manglapus from the Hence, the recognition granted in PMPF v.
present case is the fact that the petitioners Manglapus to the privileged character of
therein consisted entirely of members of the diplomatic negotiations cannot be considered
mass media, while petitioners in the present irrelevant in resolving the present case, the
case include members of the House of contextual differences between the two cases
Representatives who invoke their right to notwithstanding.
information not just as citizens but as members
of Congress. As third and last point raised against the
application of PMPF v. Manglapus in this case,
Petitioners thus conclude that the present case petitioners proffer that "the socio-political and
involves the right of members of Congress to historical contexts of the two cases are worlds
demand information on negotiations of apart." They claim that the constitutional
international trade agreements from the traditions and concepts prevailing at the time
Executive branch, a matter which was not raised PMPF v. Manglapus came about, particularly the
in PMPF v. Manglapus. school of thought that the requirements of
foreign policy and the ideals of transparency
While indeed the petitioners in PMPF v. were incompatible with each other or the
Manglapus consisted only of members of the "incompatibility hypothesis," while valid when
mass media, it would be incorrect to claim that international relations were still governed by
the doctrine laid down therein has no bearing on power, politics and wars, are no longer so in this
a controversy such as the present, where the age of international cooperation.42
demand for information has come from
members of Congress, not only from private Without delving into petitioners’ assertions
citizens. respecting the "incompatibility hypothesis," the
Court notes that the ruling in PMPF v.
The privileged character accorded to diplomatic Manglapus is grounded more on the nature of
negotiations does not ipso facto lose all force treaty negotiations as such than on a particular
and effect simply because the same privilege is socio-political school of thought. If petitioners
now being claimed under different are suggesting that the nature of treaty
circumstances. The probability of the claim negotiations have so changed that "[a]n ill-timed
succeeding in the new context might differ, but speech by one of the parties or a frank
to say that the privilege, as such, has no validity declaration of the concession which are exacted
at all in that context is another matter altogether. or offered on both sides" no longer "lead[s] to
widespread propaganda to block the
The Court’s statement in Senate v. Ermita that negotiations," or that parties in treaty
"presidential refusals to furnish information may negotiations no longer expect their
be actuated by any of at least three distinct kinds communications to be governed by historic
 CONSTI LAW II ACJUCO FINALS 35

confidentiality, the burden is on them to existence of a public interest sufficient to

substantiate the same. This petitioners failed to overcome the privilege in this instance.
discharge.
To clarify, there are at least two kinds of public
Whether the privilege applies only at certain interest that must be taken into account. One is
stages of the negotiation process the presumed public interest in favor of keeping
the subject information confidential, which is the
Petitioners admit that "diplomatic negotiations reason for the privilege in the first place, and the
on the JPEPA are entitled to a reasonable other is the public interest in favor of disclosure,
amount of confidentiality so as not to jeopardize the existence of which must be shown by the
the diplomatic process." They argue, however, party asking for information. 47
that the same is privileged "only at certain stages
of the negotiating process, after which such The criteria to be employed in determining
information must necessarily be revealed to the whether there is a sufficient public interest in
public."43 They add that the duty to disclose this favor of disclosure may be gathered from cases
information was vested in the government when such as U.S. v. Nixon,48 Senate Select
the negotiations moved from the formulation and Committee on Presidential Campaign Activities
exploratory stage to the firming up of definite v. Nixon,49 and In re Sealed Case.50
propositions or official recommendations, citing
Chavez v. PCGG44 and Chavez v. PEA.45 U.S. v. Nixon, which involved a claim of the
presidential communications privilege against
The following statement in Chavez v. PEA, the subpoena duces tecum of a district court in
however, suffices to show that the doctrine in a criminal case, emphasized the need to
both that case and Chavez v. PCGG with regard balance such claim of privilege against the
to the duty to disclose "definite propositions of constitutional duty of courts to ensure a fair
the government" does not apply to diplomatic administration of criminal justice.
negotiations:
x x x the allowance of the privilege to withhold
We rule, therefore, that the constitutional right to evidence that is demonstrably relevant in a
information includes official information on on- criminal trial would cut deeply into the guarantee
going negotiations before a final contract. The of due process of law and gravely impair the
information, however, must constitute definite basic function of the courts. A President’s
propositions by the government and should not acknowledged need for confidentiality in the
cover recognized exceptions like privileged communications of his office is general in nature,
information, military and diplomatic secrets and whereas the constitutional need for production of
similar matters affecting national security and relevant evidence in a criminal proceeding is
public order. x x x46 (Emphasis and specific and central to the fair adjudication of a
underscoring supplied) particular criminal case in the administration of
justice. Without access to specific facts a
It follows from this ruling that even definite criminal prosecution may be totally frustrated.
propositions of the government may not be The President’s broad interest in confidentiality
disclosed if they fall under "recognized of communications will not be vitiated by
exceptions." The privilege for diplomatic disclosure of a limited number of conversations
negotiations is clearly among the recognized preliminarily shown to have some bearing on the
exceptions, for the footnote to the immediately pending criminal cases. (Emphasis, italics and
quoted ruling cites PMPF v. Manglapus itself as underscoring supplied)
an authority.
Similarly, Senate Select Committee v. Nixon,51
Whether there is sufficient public interest to which involved a claim of the presidential
overcome the claim of privilege communications privilege against the subpoena
duces tecum of a Senate committee, spoke of
It being established that diplomatic negotiations the need to balance such claim with the duty of
enjoy a presumptive privilege against disclosure, Congress to perform its legislative functions.
even against the demands of members of
Congress for information, the Court shall now The staged decisional structure established in
determine whether petitioners have shown the Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly
 CONSTI LAW II ACJUCO FINALS 36

relies in the performance of his duties could initial offers exchanged during the negotiations
continue to work under a general assurance that since only through such disclosure can their
their deliberations would remain confidential. So constitutional right to effectively participate in
long as the presumption that the public interest decision-making be brought to life in the context
favors confidentiality can be defeated only by a of international trade agreements.
strong showing of need by another institution of
government- a showing that the responsibilities Whether it can accurately be said that the
of that institution cannot responsibly be fulfilled Filipino people were not involved in the JPEPA
without access to records of the President's negotiations is a question of fact which this Court
deliberations- we believed in Nixon v. Sirica, and need not resolve. Suffice it to state that
continue to believe, that the effective functioning respondents had presented documents
of the presidential office will not be impaired. x x purporting to show that public consultations
x were conducted on the JPEPA. Parenthetically,
petitioners consider these "alleged
xxxx consultations" as "woefully selective and
inadequate."53
The sufficiency of the Committee's showing of
need has come to depend, therefore, entirely on AT ALL EVENTS, since it is not disputed that the
whether the subpoenaed materials are critical to offers exchanged by the Philippine and
the performance of its legislative functions. x x x Japanese representatives have not been
(Emphasis and underscoring supplied) disclosed to the public, the Court shall pass upon
the issue of whether access to the documents
In re Sealed Case52 involved a claim of the bearing on them is, as petitioners claim,
deliberative process and presidential essential to their right to participate in decision-
communications privileges against a subpoena making.
duces tecum of a grand jury. On the claim of
deliberative process privilege, the court stated: The case for petitioners has, of course, been
immensely weakened by the disclosure of the
The deliberative process privilege is a qualified full text of the JPEPA to the public since
privilege and can be overcome by a sufficient September 11, 2006, even as it is still being
showing of need. This need determination is to deliberated upon by the Senate and, therefore,
be made flexibly on a case-by-case, ad hoc not yet binding on the Philippines. Were the
basis. "[E]ach time [the deliberative process Senate to concur with the validity of the JPEPA
privilege] is asserted the district court must at this moment, there has already been, in the
undertake a fresh balancing of the competing words of PMPF v. Manglapus, "ample
interests," taking into account factors such as opportunity for discussion before [the treaty] is
"the relevance of the evidence," "the availability approved."
of other evidence," "the seriousness of the
litigation," "the role of the government," and the The text of the JPEPA having been published,
"possibility of future timidity by government petitioners have failed to convince this Court that
employees. x x x (Emphasis, italics and they will not be able to meaningfully exercise
underscoring supplied) their right to participate in decision-making
unless the initial offers are also published.
Petitioners have failed to present the strong and
"sufficient showing of need" referred to in the It is of public knowledge that various non-
immediately cited cases. The arguments they government sectors and private citizens have
proffer to establish their entitlement to the already publicly expressed their views on the
subject documents fall short of this standard. JPEPA, their comments not being limited to
general observations thereon but on its specific
Petitioners go on to assert that the non- provisions. Numerous articles and statements
involvement of the Filipino people in the JPEPA critical of the JPEPA have been posted on the
negotiation process effectively results in the Internet.54 Given these developments, there is
bargaining away of their economic and property no basis for petitioners’ claim that access to the
rights without their knowledge and participation, Philippine and Japanese offers is essential to
in violation of the due process clause of the the exercise of their right to participate in
Constitution. They claim, moreover, that it is decision-making.
essential for the people to have access to the
 CONSTI LAW II ACJUCO FINALS 37

Petitioner-members of the House of external affairs of the nation, as Jefferson

Representatives additionally anchor their claim describes, is "executive altogether."
to have a right to the subject documents on the
basis of Congress’ inherent power to regulate As regards the power to enter into treaties or
commerce, be it domestic or international. They international agreements, the Constitution vests
allege that Congress cannot meaningfully the same in the President, subject only to the
exercise the power to regulate international concurrence of at least two thirds vote of all the
trade agreements such as the JPEPA without members of the Senate. In this light, the
being given copies of the initial offers exchanged negotiation of the VFA and the subsequent
during the negotiations thereof. In the same ratification of the agreement are exclusive acts
vein, they argue that the President cannot which pertain solely to the President, in the
exclude Congress from the JPEPA negotiations lawful exercise of his vast executive and
since whatever power and authority the diplomatic powers granted him no less than by
President has to negotiate international trade the fundamental law itself. Into the field of
agreements is derived only by delegation of negotiation the Senate cannot intrude, and
Congress, pursuant to Article VI, Section 28(2) Congress itself is powerless to invade it. x x x
of the Constitution and Sections 401 and 402 of (Italics in the original; emphasis and
Presidential Decree No. 1464.55 underscoring supplied)

The subject of Article VI Section 28(2) of the The same doctrine was reiterated even more
Constitution is not the power to negotiate recently in Pimentel v. Executive Secretary57
treaties and international agreements, but the where the Court ruled:
power to fix tariff rates, import and export quotas,
and other taxes. Thus it provides: In our system of government, the President,
being the head of state, is regarded as the sole
(2) The Congress may, by law, authorize the organ and authority in external relations and is
President to fix within specified limits, and the country's sole representative with foreign
subject to such limitations and restrictions as it nations. As the chief architect of foreign policy,
may impose, tariff rates, import and export the President acts as the country's mouthpiece
quotas, tonnage and wharfage dues, and other with respect to international affairs. Hence, the
duties or imposts within the framework of the President is vested with the authority to deal with
national development program of the foreign states and governments, extend or
Government. withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise
As to the power to negotiate treaties, the transact the business of foreign relations. In the
constitutional basis thereof is Section 21 of realm of treaty-making, the President has the
Article VII – the article on the Executive sole authority to negotiate with other states.
Department – which states:
Nonetheless, while the President has the sole
No treaty or international agreement shall be authority to negotiate and enter into treaties, the
valid and effective unless concurred in by at Constitution provides a limitation to his power by
least two-thirds of all the Members of the Senate. requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the
The doctrine in PMPF v. Manglapus that the treaty entered into by him. x x x (Emphasis and
treaty-making power is exclusive to the underscoring supplied)
President, being the sole organ of the nation in
its external relations, was echoed in BAYAN v. While the power then to fix tariff rates and other
Executive Secretary56 where the Court held: taxes clearly belongs to Congress, and is
exercised by the President only by delegation of
By constitutional fiat and by the intrinsic nature that body, it has long been recognized that the
of his office, the President, as head of State, is power to enter into treaties is vested directly and
the sole organ and authority in the external exclusively in the President, subject only to the
affairs of the country. In many ways, the concurrence of at least two-thirds of all the
President is the chief architect of the nation's Members of the Senate for the validity of the
foreign policy; his "dominance in the field of treaty. In this light, the authority of the President
foreign relations is (then) conceded." Wielding to enter into trade agreements with foreign
vast powers and influence, his conduct in the nations provided under P.D. 146458 may be
 CONSTI LAW II ACJUCO FINALS 38

interpreted as an acknowledgment of a power would be released once the text thereof is settled
already inherent in its office. It may not be used and complete. There was no intimation that the
as basis to hold the President or its requested copies are confidential in nature by
representatives accountable to Congress for the reason of public policy. The response may not
conduct of treaty negotiations. thus be deemed a claim of privilege by the
standards of Senate v. Ermita, which recognizes
This is not to say, of course, that the President’s as claims of privilege only those which are
power to enter into treaties is unlimited but for accompanied by precise and certain reasons for
the requirement of Senate concurrence, since preserving the confidentiality of the information
the President must still ensure that all treaties being sought.
will substantively conform to all the relevant
provisions of the Constitution. Respondents’ failure to claim the privilege during
the House Committee hearings may not,
It follows from the above discussion that however, be construed as a waiver thereof by
Congress, while possessing vast legislative the Executive branch. As the immediately
powers, may not interfere in the field of treaty preceding paragraph indicates, what
negotiations. While Article VII, Section 21 respondents received from the House
provides for Senate concurrence, such pertains Committee and petitioner-Congressman Aguja
only to the validity of the treaty under were mere requests for information. And as
consideration, not to the conduct of negotiations priorly stated, the House Committee itself
attendant to its conclusion. Moreover, it is not refrained from pursuing its earlier resolution to
even Congress as a whole that has been given issue a subpoena duces tecum on account of
the authority to concur as a means of checking then Speaker Jose de Venecia’s alleged request
the treaty-making power of the President, but to Committee Chairperson Congressman Teves
only the Senate. to hold the same in abeyance.

Thus, as in the case of petitioners suing in their While it is a salutary and noble practice for
capacity as private citizens, petitioners- Congress to refrain from issuing subpoenas to
members of the House of Representatives fail to executive officials – out of respect for their office
present a "sufficient showing of need" that the – until resort to it becomes necessary, the fact
information sought is critical to the performance remains that such requests are not a compulsory
of the functions of Congress, functions that do process. Being mere requests, they do not
not include treaty-negotiation. strictly call for an assertion of executive
privilege.
Respondents’ alleged failure to timely claim
executive privilege The privilege is an exemption to Congress’
power of inquiry.59 So long as Congress itself
On respondents’ invocation of executive finds no cause to enforce such power, there is
privilege, petitioners find the same defective, not no strict necessity to assert the privilege. In this
having been done seasonably as it was raised light, respondents’ failure to invoke the privilege
only in their Comment to the present petition and during the House Committee investigations did
not during the House Committee hearings. not amount to a waiver thereof.

That respondents invoked the privilege for the The Court observes, however, that the claim of
first time only in their Comment to the present privilege appearing in respondents’ Comment to
petition does not mean that the claim of privilege this petition fails to satisfy in full the requirement
should not be credited. Petitioners’ position laid down in Senate v. Ermita that the claim
presupposes that an assertion of the privilege should be invoked by the President or through
should have been made during the House the Executive Secretary "by order of the
Committee investigations, failing which President."60 Respondents’ claim of privilege is
respondents are deemed to have waived it. being sustained, however, its flaw
notwithstanding, because of circumstances
When the House Committee and petitioner- peculiar to the case.
Congressman Aguja requested respondents for
copies of the documents subject of this case, The assertion of executive privilege by the
respondents replied that the negotiations were Executive Secretary, who is one of the
still on-going and that the draft of the JPEPA respondents herein, without him adding the
 CONSTI LAW II ACJUCO FINALS 39

phrase "by order of the President," shall be directly participate in the negotiations of the
considered as partially complying with the JPEPA, hence, they cannot be prevented from
requirement laid down in Senate v. Ermita. The gaining access to these documents.
requirement that the phrase "by order of the
President" should accompany the Executive On the other hand, We hold that this is one
Secretary’s claim of privilege is a new rule laid occasion where the following ruling in Agan v.
down for the first time in Senate v. Ermita, which PIATCO63 – and in other cases both before and
was not yet final and executory at the time since – should be applied:
respondents filed their Comment to the
petition.61 A strict application of this requirement This Court has long and consistently adhered to
would thus be unwarranted in this case. the legal maxim that those that cannot be done
directly cannot be done indirectly. To declare the
Response to the Dissenting Opinion of the Chief PIATCO contracts valid despite the clear
Justice statutory prohibition against a direct government
guarantee would not only make a mockery of
We are aware that behind the dissent of the what the BOT Law seeks to prevent -- which is
Chief Justice lies a genuine zeal to protect our to expose the government to the risk of incurring
people’s right to information against any abuse a monetary obligation resulting from a contract
of executive privilege. It is a zeal that We fully of loan between the project proponent and its
share. lenders and to which the Government is not a
party to -- but would also render the BOT Law
The Court, however, in its endeavor to guard useless for what it seeks to achieve –- to make
against the abuse of executive privilege, should use of the resources of the private sector in the
be careful not to veer towards the opposite "financing, operation and maintenance of
extreme, to the point that it would strike down as infrastructure and development projects" which
invalid even a legitimate exercise thereof. are necessary for national growth and
development but which the government,
We respond only to the salient arguments of the unfortunately, could ill-afford to finance at this
Dissenting Opinion which have not yet been point in time.64
sufficiently addressed above.
Similarly, while herein petitioners-members of
1. After its historical discussion on the allocation the House of Representatives may not have
of power over international trade agreements in been aiming to participate in the negotiations
the United States, the dissent concludes that "it directly, opening the JPEPA negotiations to their
will be turning somersaults with history to scrutiny – even to the point of giving them
contend that the President is the sole organ for access to the offers exchanged between the
external relations" in that jurisdiction. With Japanese and Philippine delegations – would
regard to this opinion, We make only the have made a mockery of what the Constitution
following observations: sought to prevent and rendered it useless for
what it sought to achieve when it vested the
There is, at least, a core meaning of the phrase power of direct negotiation solely with the
"sole organ of the nation in its external relations" President.
which is not being disputed, namely, that the
power to directly negotiate treaties and What the U.S. Constitution sought to prevent
international agreements is vested by our and aimed to achieve in defining the treaty-
Constitution only in the Executive. Thus, the making power of the President, which our
dissent states that "Congress has the power to Constitution similarly defines, may be gathered
regulate commerce with foreign nations but does from Hamilton’s explanation of why the U.S.
not have the power to negotiate international Constitution excludes the House of
agreements directly."62 Representatives from the treaty-making
process:
What is disputed is how this principle applies to
the case at bar. x x x The fluctuating, and taking its future
increase into account, the multitudinous
The dissent opines that petitioner-members of composition of that body, forbid us to expect in it
the House of Representatives, by asking for the those qualities which are essential to the proper
subject JPEPA documents, are not seeking to execution of such a trust. Accurate and
 CONSTI LAW II ACJUCO FINALS 40

comprehensive knowledge of foreign politics; a

steady and systematic adherence to the same Judicial deliberations do not lose their
views; a nice and uniform sensibility to national confidential character once a decision has been
character, decision, secrecy and dispatch; are promulgated by the courts. The same holds true
incompatible with a body so variable and so with respect to working drafts of opinions, which
numerous. The very complication of the are comparable to intra-agency
business by introducing a necessity of the recommendations. Such intra-agency
concurrence of so many different bodies, would recommendations are privileged even after the
of itself afford a solid objection. The greater position under consideration by the agency has
frequency of the calls upon the house of developed into a definite proposition, hence, the
representatives, and the greater length of time rule in this jurisdiction that agencies have the
which it would often be necessary to keep them duty to disclose only definite propositions, and
together when convened, to obtain their sanction not the inter-agency and intra-agency
in the progressive stages of a treaty, would be communications during the stage when common
source of so great inconvenience and expense, assertions are still being formulated.67
as alone ought to condemn the project.65
3. The dissent claims that petitioner-members of
These considerations a fortiori apply in this the House of Representatives have sufficiently
jurisdiction, since the Philippine Constitution, shown their need for the same documents to
unlike that of the U.S., does not even grant the overcome the privilege. Again, We disagree.
Senate the power to advise the Executive in the
making of treaties, but only vests in that body the The House Committee that initiated the
power to concur in the validity of the treaty after investigations on the JPEPA did not pursue its
negotiations have been concluded.66 Much earlier intention to subpoena the documents.
less, therefore, should it be inferred that the This strongly undermines the assertion that
House of Representatives has this power. access to the same documents by the House
Committee is critical to the performance of its
Since allowing petitioner-members of the House legislative functions. If the documents were
of Representatives access to the subject JPEPA indeed critical, the House Committee should
documents would set a precedent for future have, at the very least, issued a subpoena duces
negotiations, leading to the contravention of the tecum or, like what the Senate did in Senate v.
public interests articulated above which the Ermita, filed the present petition as a legislative
Constitution sought to protect, the subject body, rather than leaving it to the discretion of
documents should not be disclosed. individual Congressmen whether to pursue an
action or not. Such acts would have served as
2. The dissent also asserts that respondents can strong indicia that Congress itself finds the
no longer claim the diplomatic secrets privilege subject information to be critical to its legislative
over the subject JPEPA documents now that functions.
negotiations have been concluded, since their
reasons for nondisclosure cited in the June 23, Further, given that respondents have claimed
2005 letter of Sec. Ermita, and later in their executive privilege, petitioner-members of the
Comment, necessarily apply only for as long as House of Representatives should have, at least,
the negotiations were still pending; shown how its lack of access to the Philippine
and Japanese offers would hinder the intelligent
In their Comment, respondents contend that "the crafting of legislation. Mere assertion that the
negotiations of the representatives of the JPEPA covers a subject matter over which
Philippines as well as of Japan must be allowed Congress has the power to legislate would not
to explore alternatives in the course of the suffice. As Senate Select Committee v. Nixon68
negotiations in the same manner as judicial held, the showing required to overcome the
deliberations and working drafts of opinions are presumption favoring confidentiality turns, not
accorded strict confidentiality." That only on the nature and appropriateness of the
respondents liken the documents involved in the function in the performance of which the material
JPEPA negotiations to judicial deliberations and was sought, but also the degree to which the
working drafts of opinions evinces, by itself, that material was necessary to its fulfillment. This
they were claiming confidentiality not only until, petitioners failed to do.
but even after, the conclusion of the
negotiations.
 CONSTI LAW II ACJUCO FINALS 41

Furthermore, from the time the final text of the department which has control over the matter,
JPEPA including its annexes and attachments after actual personal consideration by that
was published, petitioner-members of the House officer."
of Representatives have been free to use it for
any legislative purpose they may see fit. Since The rule was thus laid down by this Court, not in
such publication, petitioners’ need, if any, adherence to any established precedent, but
specifically for the Philippine and Japanese with the aim of preventing the abuse of the
offers leading to the final version of the JPEPA, privilege in light of its highly exceptional nature.
has become even less apparent. The Court’s recognition that the Executive
Secretary also bears the power to invoke the
In asserting that the balance in this instance tilts privilege, provided he does so "by order of the
in favor of disclosing the JPEPA documents, the President," is meant to avoid laying down too
dissent contends that the Executive has failed to rigid a rule, the Court being aware that it was
show how disclosing them after the conclusion laying down a new restriction on executive
of negotiations would impair the performance of privilege. It is with the same spirit that the Court
its functions. The contention, with due respect, should not be overly strict with applying the
misplaces the onus probandi. While, in keeping same rule in this peculiar instance, where the
with the general presumption of transparency, claim of executive privilege occurred before the
the burden is initially on the Executive to provide judgment in Senate v. Ermita became final.
precise and certain reasons for upholding its
claim of privilege, once the Executive is able to 5. To show that PMPF v. Manglapus may not be
show that the documents being sought are applied in the present case, the dissent implies
covered by a recognized privilege, the burden that the Court therein erred in citing US v. Curtiss
shifts to the party seeking information to Wright72 and the book entitled The New
overcome the privilege by a strong showing of American Government and Its Work73 since
need. these authorities, so the dissent claims, may not
be used to calibrate the importance of the right
When it was thus established that the JPEPA to information in the Philippine setting.
documents are covered by the privilege for
diplomatic negotiations pursuant to PMPF v. The dissent argues that since Curtiss-Wright
Manglapus, the presumption arose that their referred to a conflict between the executive and
disclosure would impair the performance of legislative branches of government, the factual
executive functions. It was then incumbent on setting thereof was different from that of PMPF
petitioner- requesting parties to show that they v. Manglapus which involved a collision between
have a strong need for the information sufficient governmental power over the conduct of foreign
to overcome the privilege. They have not, affairs and the citizen’s right to information.
however.
That the Court could freely cite Curtiss-Wright –
4. Respecting the failure of the Executive a case that upholds the secrecy of diplomatic
Secretary to explicitly state that he is claiming negotiations against congressional demands for
the privilege "by order of the President," the information – in the course of laying down a
same may not be strictly applied to the privilege ruling on the public right to information only
claim subject of this case. serves to underscore the principle mentioned
earlier that the privileged character accorded to
When the Court in Senate v. Ermita limited the diplomatic negotiations does not ipso facto lose
power of invoking the privilege to the President all force and effect simply because the same
alone, it was laying down a new rule for which privilege is now being claimed under different
there is no counterpart even in the United States circumstances.
from which the concept of executive privilege
was adopted. As held in the 2004 case of PMPF v. Manglapus indeed involved a demand
Judicial Watch, Inc. v. Department of Justice,69 for information from private citizens and not an
citing In re Sealed Case,70 "the issue of whether executive-legislative conflict, but so did Chavez
a President must personally invoke the v. PEA74 which held that "the [public’s] right to
[presidential communications] privilege remains information . . . does not extend to matters
an open question." U.S. v. Reynolds,71 on the recognized as privileged information under the
other hand, held that "[t]here must be a formal separation of powers." What counts as
claim of privilege, lodged by the head of the privileged information in an executive-legislative
 CONSTI LAW II ACJUCO FINALS 42

conflict is thus also recognized as such in cases not be construed as a denial of the importance
involving the public’s right to information. of analyzing the context in which an executive
privilege controversy may happen to be placed.
Chavez v. PCGG75 also involved the public’s Rather, it affirms it, for it means that the specific
right to information, yet the Court recognized as need being shown by the party seeking
a valid limitation to that right the same privileged information in every particular instance is highly
information based on separation of powers – significant in determining whether to uphold a
closed-door Cabinet meetings, executive claim of privilege. This "need" is, precisely, part
sessions of either house of Congress, and the of the context in light of which every claim of
internal deliberations of the Supreme Court. privilege should be assessed.

These cases show that the Court has always Since, as demonstrated above, there are
regarded claims of privilege, whether in the common principles that should be applied to
context of an executive-legislative conflict or a executive privilege controversies across
citizen’s demand for information, as closely different contexts, the Court in PMPF v.
intertwined, such that the principles applicable to Manglapus did not err when it cited the Curtiss-
one are also applicable to the other. Wright case.

The reason is obvious. If the validity of claims of The claim that the book cited in PMPF v.
privilege were to be assessed by entirely Manglapus entitled The New American
different criteria in each context, this may give Government and Its Work could not have taken
rise to the absurd result where Congress would into account the expanded statutory right to
be denied access to a particular information information in the FOIA assumes that the
because of a claim of executive privilege, but the observations in that book in support of the
general public would have access to the same confidentiality of treaty negotiations would be
information, the claim of privilege different had it been written after the FOIA. Such
notwithstanding. assumption is, with due respect, at best,
speculative.
Absurdity would be the ultimate result if, for
instance, the Court adopts the "clear and As to the claim in the dissent that "[i]t is more
present danger" test for the assessment of doubtful if the same book be used to calibrate
claims of privilege against citizens’ demands for the importance of the right of access to
information. If executive information, when information in the Philippine setting considering
demanded by a citizen, is privileged only when its elevation as a constitutional right," we submit
there is a clear and present danger of a that the elevation of such right as a constitutional
substantive evil that the State has a right to right did not set it free from the legitimate
prevent, it would be very difficult for the restrictions of executive privilege which is itself
Executive to establish the validity of its claim in constitutionally-based.76 Hence, the comments
each instance. In contrast, if the demand comes in that book which were cited in PMPF v.
from Congress, the Executive merely has to Manglapus remain valid doctrine.
show that the information is covered by a
recognized privilege in order to shift the burden 6. The dissent further asserts that the Court has
on Congress to present a strong showing of never used "need" as a test to uphold or allow
need. This would lead to a situation where it inroads into rights guaranteed under the
would be more difficult for Congress to access Constitution. With due respect, we assert
executive information than it would be for private otherwise. The Court has done so before, albeit
citizens. without using the term "need."

We maintain then that when the Executive has In executive privilege controversies, the
already shown that an information is covered by requirement that parties present a "sufficient
executive privilege, the party demanding the showing of need" only means, in substance, that
information must present a "strong showing of they should show a public interest in favor of
need," whether that party is Congress or a disclosure sufficient in degree to overcome the
private citizen. claim of privilege.77 Verily, the Court in such
cases engages in a balancing of interests. Such
The rule that the same "showing of need" test a balancing of interests is certainly not new in
applies in both these contexts, however, should constitutional adjudication involving
 CONSTI LAW II ACJUCO FINALS 43

fundamental rights. Secretary of Justice v. information, a specific "showing of need" for

Lantion,78 which was cited in the dissent, such information is not a relevant consideration,
applied just such a test. but only whether the same is a matter of public
concern. When, however, the government has
Given that the dissent has clarified that it does claimed executive privilege, and it has
not seek to apply the "clear and present danger" established that the information is indeed
test to the present controversy, but the balancing covered by the same, then the party demanding
test, there seems to be no substantial dispute it, if it is to overcome the privilege, must show
between the position laid down in this ponencia that that the information is vital, not simply for the
and that reflected in the dissent as to what test satisfaction of its curiosity, but for its ability to
to apply. It would appear that the only effectively and reasonably participate in social,
disagreement is on the results of applying that political, and economic decision-making.79
test in this instance.
7. The dissent maintains that "[t]he treaty has
The dissent, nonetheless, maintains that "it thus entered the ultimate stage where the
suffices that information is of public concern for people can exercise their right to participate in
it to be covered by the right, regardless of the the discussion whether the Senate should
public’s need for the information," and that the concur in its ratification or not." (Emphasis
same would hold true even "if they simply want supplied) It adds that this right "will be diluted
to know it because it interests them." As has unless the people can have access to the
been stated earlier, however, there is no dispute subject JPEPA documents". What, to the
that the information subject of this case is a dissent, is a dilution of the right to participate in
matter of public concern. The Court has earlier decision-making is, to Us, simply a recognition
concluded that it is a matter of public concern, of the qualified nature of the public’s right to
not on the basis of any specific need shown by information. It is beyond dispute that the right to
petitioners, but from the very nature of the information is not absolute and that the doctrine
JPEPA as an international trade agreement. of executive privilege is a recognized limitation
on that right.
However, when the Executive has – as in this
case – invoked the privilege, and it has been Moreover, contrary to the submission that the
established that the subject information is right to participate in decision-making would be
indeed covered by the privilege being claimed, diluted, We reiterate that our people have been
can a party overcome the same by merely exercising their right to participate in the
asserting that the information being demanded discussion on the issue of the JPEPA, and they
is a matter of public concern, without any further have been able to articulate their different
showing required? Certainly not, for that would opinions without need of access to the JPEPA
render the doctrine of executive privilege of no negotiation documents.
force and effect whatsoever as a limitation on the
right to information, because then the sole test in Thus, we hold that the balance in this case tilts
such controversies would be whether an in favor of executive privilege.
information is a matter of public concern.
8. Against our ruling that the principles applied in
Moreover, in view of the earlier discussions, we U.S. v. Nixon, the Senate Select Committee
must bear in mind that, by disclosing the case, and In re Sealed Case, are similarly
documents of the JPEPA negotiations, the applicable to the present controversy, the
Philippine government runs the grave risk of dissent cites the caveat in the Nixon case that
betraying the trust reposed in it by the Japanese the U.S. Court was there addressing only the
representatives, indeed, by the Japanese President’s assertion of privilege in the context
government itself. How would the Philippine of a criminal trial, not a civil litigation nor a
government then explain itself when that congressional demand for information. What this
happens? Surely, it cannot bear to say that it just caveat means, however, is only that courts must
had to release the information because certain be careful not to hastily apply the ruling therein
persons simply wanted to know it "because it to other contexts. It does not, however,
interests them." absolutely mean that the principles applied in
that case may never be applied in such contexts.
Thus, the Court holds that, in determining
whether an information is covered by the right to
 CONSTI LAW II ACJUCO FINALS 44

Hence, U.S. courts have cited U.S. v. Nixon in denied, respondents’ claim of executive privilege
support of their rulings on claims of executive being valid.
privilege in contexts other than a criminal trial, as
in the case of Nixon v. Administrator of General Diplomatic negotiations have, since the Court
Services80 – which involved former President promulgated its Resolution in PMPF v.
Nixon’s invocation of executive privilege to Manglapus on September 13, 1988, been
challenge the constitutionality of the recognized as privileged in this jurisdiction and
"Presidential Recordings and Materials the reasons proffered by petitioners against the
Preservation Act"81 – and the above-mentioned application of the ruling therein to the present
In re Sealed Case which involved a claim of case have not persuaded the Court. Moreover,
privilege against a subpoena duces tecum petitioners – both private citizens and members
issued in a grand jury investigation. of the House of Representatives – have failed to
present a "sufficient showing of need" to
Indeed, in applying to the present case the overcome the claim of privilege in this case.
principles found in U.S. v. Nixon and in the other
cases already mentioned, We are merely That the privilege was asserted for the first time
affirming what the Chief Justice stated in his in respondents’ Comment to the present petition,
Dissenting Opinion in Neri v. Senate Committee and not during the hearings of the House Special
on Accountability82 – a case involving an Committee on Globalization, is of no moment,
executive-legislative conflict over executive since it cannot be interpreted as a waiver of the
privilege. That dissenting opinion stated that, privilege on the part of the Executive branch.
while Nixon was not concerned with the balance
between the President’s generalized interest in For reasons already explained, this Decision
confidentiality and congressional demands for shall not be interpreted as departing from the
information, "[n]onetheless the [U.S.] Court laid ruling in Senate v. Ermita that executive privilege
down principles and procedures that can serve should be invoked by the President or through
as torch lights to illumine us on the scope and the Executive Secretary "by order of the
use of Presidential communication privilege in President."
the case at bar."83 While the Court was divided
in Neri, this opinion of the Chief Justice was not WHEREFORE, the petition is DISMISSED.
among the points of disagreement, and We
similarly hold now that the Nixon case is a useful
guide in the proper resolution of the present
controversy, notwithstanding the difference in
context.

Verily, while the Court should guard against the

abuse of executive privilege, it should also give
full recognition to the validity of the privilege
whenever it is claimed within the proper bounds
of executive power, as in this case. Otherwise,
the Court would undermine its own credibility, for
it would be perceived as no longer aiming to
strike a balance, but seeking merely to water
down executive privilege to the point of
irrelevance.

Conclusion

To recapitulate, petitioners’ demand to be

furnished with a copy of the full text of the JPEPA
has become moot and academic, it having been
made accessible to the public since September
11, 2006. As for their demand for copies of the
Philippine and Japanese offers submitted during
the JPEPA negotiations, the same must be
 CONSTI LAW II ACJUCO FINALS 45

G.R. No. 183591 October 14 2008 (DELINEATION, RECOGNITION OF

ANCESTRAL DOMAINS)
PROVINCE OF NORTH COTABATO VS
GOVERNMENT OF THE REPUBLIC OF THE RULINGS:
PHILIPPINES 1. Yes, the petitions are ripe for
adjudication. The failure of the
FACTS: respondents to consult the local
government units or communities
On August 5, 2008, the Government of the affected constitutes a departure by
Republic of the Philippines and the Moro Islamic respondents from their mandate under
Liberation Front (MILF) were scheduled to sign EO No. 3. Moreover, the respondents
a Memorandum of Agreement of the Ancestral exceeded their authority by the mere act
Domain Aspect of the GRP - MILF Tripoli of guaranteeing amendments to the
Agreement on Peace of 2001 in Kuala Lumpur, Constitution. Any alleged violation of the
Malaysia. Constitution by any branch of
government is a proper matter for judicial
Invoking the right to information on matters of review.
public concern, the petitioners seek to compel
respondents to disclose and furnish them the 2. As the petitions involve constitutional
complete and official copies of the MA-AD and issues which are of paramount public
to prohibit the slated signing of the MOA-AD and interest or of transcendental importance,
the holding of public consultation thereon. They the Court grants the petitioners,
also pray that the MOA-AD be declared petitioners-in-intervention and
unconstitutional. The Court issued a TRO intervening respondents the requisite
enjoining the GRP from signing the same. locus standi in keeping with the liberal
stance adopted in David v. Macapagal-
ISSUES: Arroyo.
1. Whether or not the constitutionality and
the legality of the MOA is ripe for In Pimentel, Jr. v. Aguirre, this Court held:
adjudication; x x x [B]y the mere enactment of the questioned
law or the approval of the challenged action, the
2. Whether or not there is a violation of dispute is said to have ripened into a judicial
the people's right to information on controversy even without any other overt
matters of public concern (Art 3 Sec. act. Indeed, even a singular violation of the
7) under a state policy of full Constitution and/or the law is enough to awaken
disclosure of all its transactions judicial duty.x x x x
involving public interest (Art 2, Sec 28)
including public consultation under By the same token, when an act of the President,
RA 7160 (Local Government Code of who in our constitutional scheme is a coequal of
1991) Congress, is seriously alleged to have infringed
the Constitution and the laws x x x settling the
3. Whether or not the signing of the MOA, dispute becomes the duty and the responsibility
the Government of the Republic of the of the courts.
Philippines would be binding itself
That the law or act in question is not yet effective
a) to create and recognize the Bangsamoro does not negate ripeness.
Juridical Entity (BJE) as a separate state,
or a juridical, territorial or political 3. Yes. The Court finds that there is a
subdivision not recognized by law; grave violation of the Constitution
b) to revise or amend the Constitution and involved in the matters of public
existing laws to conform to the MOA; concern (Sec 7 Art III) under a state
c) to concede to or recognize the claim of policy of full disclosure of all its
the Moro Islamic Liberation Front for transactions involving public interest (Art
ancestral domain in violation of Republic 2, Sec 28) including public consultation
Act No. 8371 (THE INDIGENOUS under RA 7160 (Local Government Code
PEOPLES RIGHTS ACT OF 1997), of 1991).
particularly Section 3(g) & Chapter VII
 CONSTI LAW II ACJUCO FINALS 46

(Sec 7 Ar tIII) The right to information Philippine State, much less does it provide for a
guarantees the right of the people to transitory status that aims to prepare any part of
demand information, while Sec 28 Philippine territory for independence.
recognizes the duty of officialdom to give
information even if nobody demands. The The BJE is a far more powerful entity than the
complete and effective exercise of the autonomous region recognized in the
right to information necessitates that its Constitution. It is not merely an expanded
complementary provision on public version of the ARMM, the status of its
disclosure derive the same self- relationship with the national government being
executory nature, subject only to fundamentally different from that of the
reasonable safeguards or limitations as ARMM. Indeed, BJE is a state in all but name
may be provided by law. as it meets the criteria of a state laid down in
the Montevideo Convention, namely, a
The contents of the MOA-AD is a matter of permanent population, a defined territory, a
paramount public concern involving public government, and a capacity to enter into
interest in the highest order. In declaring that the relations with other states.
right to information contemplates steps and
negotiations leading to the consummation of the Even assuming arguendo that the MOA-AD
contract, jurisprudence finds no distinction as to would not necessarily sever any portion of
the executory nature or commercial character of Philippine territory, the spirit animating it – which
the agreement. has betrayed itself by its use of the concept of
association – runs counter to the national
E.O. No. 3 itself is replete with mechanics for sovereignty and territorial integrity of the
continuing consultations on both national and Republic.
local levels and for a principal forum for
consensus-building. In fact, it is the duty of the The defining concept underlying the relationship
Presidential Adviser on the Peace Process to between the national government and the BJE
conduct regular dialogues to seek relevant being itself contrary to the present Constitution,
information, comments, advice, and it is not surprising that many of the specific
recommendations from peace partners and provisions of the MOA-AD on the formation and
concerned sectors of society. powers of the BJE are in conflict with the
Constitution and the laws. The BJE is more of a
4. a) to create and recognize the state than an autonomous region. But even
Bangsamoro Juridical Entity (BJE) as a assuming that it is covered by the term
separate state, or a juridical, territorial or “autonomous region” in the constitutional
political subdivision not recognized by provision just quoted, the MOA-AD would still be
law; in conflict with it.

Yes. The provisions of the MOA indicate,

among other things, that the Parties aimed to b) to revise or amend the Constitution and
vest in the BJE the status of an associated existing laws to conform to the MOA:
state or, at any rate, a status closely
approximating it. The MOA-AD provides that “any provisions of
the MOA-AD requiring amendments to the
The concept of association is not recognized existing legal framework shall come into force
under the present Constitution. upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the
No province, city, or municipality, not even the legal framework,” implying an amendment of
ARMM, is recognized under our laws as having the Constitution to accommodate the MOA-
an “associative” relationship with the national AD. This stipulation, in effect, guaranteed to
government. Indeed, the concept implies powers the MILF the amendment of the Constitution .
that go beyond anything ever granted by the
Constitution to any local or regional It will be observed that the President has
government. It also implies the recognition of authority, as stated in her oath of office, only to
the associated entity as a state. The preserve and defend the Constitution. Such
Constitution, however, does not contemplate presidential power does not, however, extend to
any state in this jurisdiction other than the allowing her to change the Constitution, but
 CONSTI LAW II ACJUCO FINALS 47

simply to recommend proposed amendments or Republic Act No. 8371 or the Indigenous
revision. As long as she limits herself to Peoples Rights Act of 1997 provides for clear-
recommending these changes and submits to cut procedure for the recognition and delineation
the proper procedure for constitutional of ancestral domain, which entails, among other
amendments and revision, her mere things, the observance of the free and prior
recommendation need not be construed as an informed consent of the Indigenous Cultural
unconstitutional act. Communities/Indigenous Peoples. Notably, the
statute does not grant the Executive Department
The “suspensive clause” in the MOA-AD viewed or any government agency the power to
in light of the above-discussed standards. delineate and recognize an ancestral domain
claim by mere agreement or compromise.
Given the limited nature of the President’s
authority to propose constitutional Two, Republic Act No. 7160 or the Local
amendments, she cannot guarantee to any Government Code of 1991 requires all national
third party that the required amendments will offices to conduct consultations beforeany
eventually be put in place, nor even be project or program critical to the environment
submitted to a plebiscite. The most she could and human ecology including those that may call
do is submit these proposals as for the eviction of a particular group of people
recommendations either to Congress or the residing in such locality, is implemented therein.
people, in whom constituent powers are vested. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership
d) to concede to or recognize the claim of of a vast territory to the Bangsamoro people,
the Moro Islamic Liberation Front for which could pervasively and drastically result to
ancestral domain in violation of Republic the diaspora or displacement of a great number
Act No. 8371 (THE INDIGENOUS of inhabitants from their total environment.
PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII CONCLUSION:
(DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS) In sum, the Presidential Adviser on the Peace
e) Process committed grave abuse of discretion
This strand begins with the statement that it is when he failed to carry out the pertinent
“the birthright of all Moros and all Indigenous consultation process, as mandated by E.O. No.
peoples of Mindanao to identify themselves and 3, Republic Act No. 7160, and Republic Act No.
be accepted as ‘Bangsamoros.’” It defines 8371. The furtive process by which the MOA-AD
“Bangsamoro people” as the natives or original was designed and crafted runs contrary to and
inhabitants of Mindanao and its adjacent islands in excess of the legal authority, and amounts to
including Palawan and the Sulu archipelago at a whimsical, capricious, oppressive, arbitrary
the time of conquest or colonization, and their and despotic exercise thereof. It illustrates a
descendants whether mixed or of full blood, gross evasion of positive duty and a virtual
including their spouses. refusal to perform the duty enjoined.

Thus, the concept of “Bangsamoro,” as defined The MOA-AD cannot be reconciled with the
in this strand of the MOA-AD, includes not only present Constitution and laws. Not only its
“Moros” as traditionally understood even by specific provisions but the very concept
Muslims, but all indigenous peoples of Mindanao underlying them, namely, the associative
and its adjacent islands. The MOA-AD adds that relationship envisioned between the GRP and
the freedom of choice of indigenous peoples the BJE, are unconstitutional, for the concept
shall be respected. What this freedom of choice presupposes that the associated entity is a state
consists in has not been specifically defined. and implies that the same is on its way to
The MOA-AD proceeds to refer to the independence.
“Bangsamoro homeland,” the ownership of
which is vested exclusively in the Bangsamoro
people by virtue of their prior rights of
occupation. Both parties to the MOA-AD
acknowledge that ancestral domain does not
form part of the public domain.
 CONSTI LAW II ACJUCO FINALS 48

FREEDOM OF RELIGION Furthermore, to grant an exemption to a specific

religious minority poses a risk of collision course
G.R. No. 95770 December 29, 1995 with the "equal protection of the laws" clause in
respect of the non-exempt, and, in public
ROEL EBRALINAG et al., petitioners, schools, a collision course with the "non-
vs. establishment guarantee."
THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU, and MR. MANUEL F. Additionally the public respondent insists that
BIONGCOG, Cebu District Supervisor, this Court adopt a "neutral stance" by reverting
respondents. to its holding in Gerona declaring the flag as
being devoid of any religious significance. He
G.R. No. 95887 December 29, 1995 stresses that the issue here is not curtailment of
religious belief but regulation of the exercise of
MAY AMOLO, represented by her parents religious belief. Finally, he maintains that the
MR. & MRS. ISAIAS AMOLO et al., State's interests in the case at bench are
petitioners, constitutional and legal obligations to implement
vs. the law and the constitutional mandate to
THE DIVISION SUPERINTENDENT OF inculcate in the youth patriotism and nationalism
SCHOOLS OF CEBU, and ANTONIO A. and to encourage their involvement in public and
SANGUTAN, respondents. civic affairs, referring to the test devised by the
United States Supreme Court in U.S. vs.
R E SO L U T I O N O'Brien.1

KAPUNAN, J.: II

The State moves for a reconsideration of our All the petitioners in the original case2 were
decision dated March 1, 1993 granting private minor school children, and members of the sect,
respondents' petition for certiorari and Jehovah's Witnesses (assisted by their parents)
prohibition and annulling the expulsion orders who were expelled from their classes by various
issued by the public respondents therein on the public school authorities in Cebu for refusing to
ground that the said decision created an salute the flag, sing the national anthem and
exemption in favor of the members of the recite the patriotic pledge as required by
religious sect, the Jehovah's Witnesses, in Republic Act No. 1265 of July 11, 1955 and by
violation of the "Establishment Clause" of the Department Order No. 8, dated July 21, 1955
Constitution. The Solicitor General, on behalf of issued by the Department of Education. Aimed
the public respondent, furthermore contends primarily at private educational institutions which
that: did not observe the flag ceremony exercises,
Republic Act No. 1265 penalizes all educational
The accommodation by this Honorable Court to institutions for failure or refusal to observe the
a demand for special treatment in favor of a flag ceremony with public censure on first
minority sect even on the basis of a claim of offense and cancellation of the recognition or
religious freedom may be criticized as granting permit on second offense.
preference to the religious beliefs of said sect in
violation of the "non-establishment guarantee" The implementing regulations issued by the
provision of the Constitution. Surely, the Department of Education thereafter detailed the
decision of the Court constitutes a special favor manner of observance of the same. Immediately
which immunizes religious believers such as pursuant to these orders, school officials in
Jehovah's Witnesses to the law and the DECS Masbate expelled children belonging to the sect
rules and regulations by interposing the claim of the Jehovah's Witnesses from school for
that the conduct required by law and the rules failing or refusing to comply with the flag
and regulation (sic) are violative of their religious ceremony requirement. Sustaining these
beliefs. The decision therefore is susceptible to expulsion orders, this Court in the 1959 case of
the very criticism that the grant of exemption is a Gerona vs. Secretary of Education3 held that:
violation of the "non-establishment" provision of
the Constitution. The flag is not an image but a symbol of the
Republic of the Philippines, an emblem of
national sovereignty, of national unity and
 CONSTI LAW II ACJUCO FINALS 49

cohesion and of freedom and liberty which it and And yet, while members of Jehovah's
the Constitution guarantee and protect. Witnesses, on the basis of religious convictions,
Considering the complete separation of church refuse to perform an act (or acts) which they
and state in our system of government, the flag consider proscribed by the Bible, they contend
is utterly devoid of any religious significance. that such refusal should not be taken to indicate
Saluting the flag consequently does not involve disrespect for the symbols of the country or
any religious ceremony. . . . evidence that they are wanting in patriotism and
nationalism. They point out that as citizens, they
After all, the determination of whether a certain have an excellent record as law abiding
ritual is or is not a religious ceremony must rest members of society even if they do not
with the courts. It cannot be left to a religious demonstrate their refusal to conform to the
group or sect, much less to a follower of said assailed orders by overt acts of conformity. On
group or sect; otherwise, there would be the contrary, they aver that they show their
confusion and misunderstanding for there might respect through less demonstrative methods
be as many interpretations and meanings to be manifesting their allegiance, by their simple
given to a certain ritual or ceremony as there are obedience to the country's laws,7 by not
religious groups or sects or followers. engaging in antigovernment activities of any
kind,8 and by paying their taxes and dues to
Upholding religious freedom as a fundamental society as self-sufficient members of the
right deserving the "highest priority and amplest community.9 While they refuse to salute the flag,
protection among human rights," this Court, in they are willing to stand quietly and peacefully at
Ebralinag vs. Division Superintendent of attention, hands on their side, in order not to
Schools of Cebu4 re-examined our over two disrupt the ceremony or disturb those who
decades-old decision in Gerona and reversed believe differently.10
expulsion orders made by the public
respondents therein as violative of both the free The religious beliefs, practices and convictions
exercise of religion clause and the right of of the members of the sect as a minority are
citizens to education under the 1987 bound to be seen by others as odd and different
Constitution.5 and at divergence with the complex
requirements of contemporary societies,
From our decision of March 1, 1993, the public particularly those societies which require certain
respondents filed a motion for reconsideration practices as manifestations of loyalty and
on grounds hereinabove stated. After a careful patriotic behavior. Against those who believe
study of the grounds adduced in the that coerced loyalty and unity are mere shadows
government's Motion For Reconsideration of our of patriotism, the tendency to exact "a hydraulic
original decision, however, we find no cogent insistence on conformity to majoritarian
reason to disturb our earlier ruling. standards,"11 is seductive to the bureaucratic
mindset as a shortcut to patriotism.
The religious convictions and beliefs of the
members of the religious sect, the Jehovah's No doubt, the State possesses what the Solicitor
Witnesses are widely known and are equally General describes as the responsibility "to
widely disseminated in numerous books, inculcate in the minds of the youth the values of
magazines, brochures and leaflets distributed by patriotism and nationalism and to encourage
their members in their house to house their involvement in public and civic affairs." The
distribution efforts and in many public places. teaching of these values ranks at the very apex
Their refusal to render obeisance to any form or of education's "high responsibility" of shaping up
symbol which smacks of idolatry is based on the minds of the youth in those principles which
their sincere belief in the biblical injunction found would mold them into responsible and
in Exodus 20:4,5, against worshipping forms or productive members of our society. However,
idols other than God himself. The basic the government's interest in molding the young
assumption in their universal refusal to salute into patriotic and civic spirited citizens is "not
the flags of the countries in which they are found totally free from a balancing process"12 when it
is that such a salute constitutes an act of intrudes into other fundamental rights such as
religious devotion forbidden by God's law. This those specifically protected by the Free Exercise
assumption, while "bizarre" to others is firmly Clause, the constitutional right to education and
anchored in several biblical passages.6 the unassailable interest of parents to guide the
religious upbringing of their children in
 CONSTI LAW II ACJUCO FINALS 50

accordance with the dictates of their conscience religious doctrine or practice or an expression or
and their sincere religious beliefs.13 form of expression, this Court will not find it
Recognizing these values, Justice Carolina difficult to sustain a regulation. However,
Grino-Aquino, the writer of the original opinion, regulations involving this area are generally held
underscored that a generation of Filipinos which against the most exacting standards, and the
cuts its teeth on the Bill of Rights would find zone of protection accorded by the Constitution
abhorrent the idea that one may be compelled, cannot be violated, except upon a showing of a
on pain of expulsion, to salute the flag sing the clear and present danger of a substantive evil
national anthem and recite the patriotic pledge which the state has a right to protect.21 Stated
during a flag ceremony.14 "This coercion of differently, in the case of a regulation which
conscience has no place in a free society".15 appears to abridge a right to which the
fundamental law accords high significance it is
The State's contentions are therefore, the regulation, not the act (or refusal to act),
unacceptable, for no less fundamental than the which is the exception and which requires the
right to take part is the right to stand apart.16 In court's strictest scrutiny. In the case at bench,
the context of the instant case, the freedom of the government has not shown that refusal to do
religion enshrined in the Constitution should be the acts of conformity exacted by the assailed
seen as the rule, not the exception. To view the orders, which respondents point out attained
constitutional guarantee in the manner legislative cachet in the Administrative Code of
suggested by the petitioners would be to 1987, would pose a clear and present danger of
denigrate the status of a preferred freedom and a danger so serious and imminent, that it would
to relegate it to the level of an abstract principle prompt legitimate State intervention.
devoid of any substance and meaning in the
lives of those for whom the protection is In a case involving the Flag Protection Act of
addressed. As to the contention that the 1989, the U.S. Supreme Court held that the
exemption accorded by our decision benefits a "State's asserted interest in preserving the fag
privileged few, it is enough to re-emphasize that as a symbol of nationhood and national unity
"the constitutional protection of religious was an interest related to the suppression of free
freedom terminated disabilities, it did not create expression . . . because the State's concern with
new privileges. It gave religious equality, not civil protecting the flag's symbolic meaning is
immunity."17 The essence of the free exercise implicated only when a person's treatment of the
clause is freedom from conformity to religious flag communicates some message. 22 While the
dogma, not freedom from conformity to law very concept of ordered liberty precludes this
because of religious dogma.18 Moreover, the Court from allowing every individual to
suggestion implicit in the State's pleadings to the subjectively define his own standards on matters
effect that the flag ceremony requirement would of conformity in which society, as a whole has
be equally and evenly applied to all citizens important interests, the records of the case and
regardless of sect or religion and does not the long history of flag salute cases abundantly
thereby discriminate against any particular sect supports the religious quality of the claims
or denomination escapes the fact that "[a] adduced by the members of the sect Jehovah's
regulation, neutral on its face, may in its Witnesses. Their treatment of flag as a religious
application, nonetheless offend the symbol is well-founded and well-documented
constitutional requirement for governmental and is based on grounds religious principle. The
neutrality if it unduly burdens the free exercise of message conveyed by their refusal to participate
religion."19 in the flag ceremony is religious, shared by the
entire community of Jehovah's Witnesses and is
III intimately related to their theocratic beliefs and
convictions. The subsequent expulsion of
The ostensible interest shown by petitioners in members of the sect on the basis of the
preserving the flag as the symbol of the nation regulations assailed in the original petitions was
appears to be integrally related to petitioner's therefore clearly directed against religious
disagreement with the message conveyed by practice. It is obvious that the assailed orders
the refusal of members of the Jehovah's Witness and memoranda would gravely endanger the
sect to salute the flag or participate actively in free exercise of the religious beliefs of the
flag ceremonies on religious grounds.20 Where members of the sect and their minor children.
the governmental interest clearly appears to be
unrelated to the suppression of an idea, a
 CONSTI LAW II ACJUCO FINALS 51

Furthermore, the view that the flag is not a on the basis of their averment that "a
religious but a neutral, secular symbol government regulation of expressive conduct is
expresses a majoritarian view intended to stifle sufficiently justified if it is within the constitutional
the expression of power of the government (and) furthers an
the belief that an act of saluting the flag might important and substantial government
sometimes be — to some individuals — so interest"27 misses the whole point of the test
offensive as to be worth their giving up another devised by the United States Supreme Court in
constitutional right — the right to education. O'Brien, cited by respondent, because the Court
Individuals or groups of individuals get from a therein was emphatic in stating that "the
symbol the meaning they put to it.23 Compelling government interest (should be) unrelated to the
members of a religious sect to believe otherwise suppression of free expression." We have
on the pain of denying minor children the right to already stated that the interest in regulation in
an education is a futile and unconscionable the case at bench was clearly related to the
detour towards instilling virtues of loyalty and suppression of an expression directly connected
patriotism which are best instilled and with the freedom of religion and that
communicated by painstaking and non-coercive respondents have not shown to our satisfaction
methods. Coerced loyalties, after all, only serve that the restriction was prompted by a
to inspire the opposite. The methods utilized to compelling interest in public order which the
impose them breed resentment and dissent. state has a right to protect. Moreover, if we were
Those who attempt to coerce uniformity of to refer (as respondents did by referring to the
sentiment soon find out that the only path test in O'Brien) to the standards devised by the
towards achieving unity is by way of suppressing US Supreme Court in determining the validity or
dissent.24 In the end, such attempts only find the extent of restrictive regulations impinging on the
"unanimity of the graveyard."25 freedoms of the mind, then the O'Brien standard
is hardly appropriate because the standard
To the extent to which members of the devised in O'Brien only applies if the State's
Jehovah's Witnesses sect assiduously pursue regulation is not related to communicative
their belief in the flag's religious symbolic conduct. If a relationship exists, a more
meaning, the State cannot, without thereby demanding standard is applied.28
transgressing constitutionally protected
boundaries, impose the contrary view on the The responsibility of inculcating the values of
pretext of sustaining a policy designed to foster patriotism, nationalism, good citizenship, and
the supposedly far-reaching goal of instilling moral uprightness is a responsibility shared by
patriotism among the youth. While conceding to the State with parents and other societal
the idea — adverted to by the Solicitor General institutions such as religious sects and
— that certain methods of religious expression denominations. The manner in which such
may be prohibited26 to serve legitimate societal values are demonstrated in a plural society
purposes, refusal to participate in the flag occurs in ways so variable that government
ceremony hardly constitutes a form of religious cannot make claims to the exclusivity of its
expression so offensive and noxious as to methods of inculcating patriotism so all-
prompt legitimate State intervention. It is worth encompassing in scope as to leave no room for
repeating that the absence of a demonstrable appropriate parental or religious influences.
danger of a kind which the State is empowered Provided that those influences do not pose a
to protect militates against the extreme clear and present danger of a substantive evil to
disciplinary methods undertaken by school society and its institutions, expressions of
authorities in trying to enforce regulations diverse beliefs, no matter how upsetting they
designed to compel attendance in flag may seem to the majority, are the price we pay
ceremonies. Refusal of the children to for the freedoms we enjoy.
participate in the flag salute ceremony would not
interfere with or deny the rights of other school WHEREFORE, premises considered, the instant
children to do so. It bears repeating that their Motion is hereby DENIED.
absence from the ceremony hardly constitutes a
danger so grave and imminent as to warrant the SO ORDERED.
state's intervention.

Finally, the respondents' insistence on the

validity of the actions taken by the government
 CONSTI LAW II ACJUCO FINALS 52

A.M. No. P-02-1651 August 4, 2003 In a sworn letter-complaint dated July 27, 2000,
complainant Alejandro Estrada wrote to Judge
ALEJANDRO ESTRADA, Complainant, Jose F. Caoibes, Jr., presiding judge of Branch
vs. 253, Regional Trial Court of Las Piñas City,
SOLEDAD S. ESCRITOR, Respondent. requesting for an investigation of rumors that
respondent Soledad Escritor, court interpreter in
DECISION said court, is living with a man not her husband.
They allegedly have a child of eighteen to twenty
PUNO, J.: years old. Estrada is not personally related
either to Escritor or her partner and is a resident
The case at bar takes us to a most difficult area not of Las Piñas City but of Bacoor, Cavite.
of constitutional law where man stands Nevertheless, he filed the charge against
accountable to an authority higher than the Escritor as he believes that she is committing an
state. To be held on balance are the state’s immoral act that tarnishes the image of the court,
interest and the respondent’s religious freedom. thus she should not be allowed to remain
In this highly sensitive area of law, the task of employed therein as it might appear that the
balancing between authority and liberty is most court condones her act.5
delicate because to the person invoking religious
freedom, the consequences of the case are not Judge Caoibes referred the letter to Escritor who
only temporal. The task is not made easier by stated that "there is no truth as to the veracity of
the American origin of our religion clauses and the allegation" and challenged Estrada to
the wealth of U.S. jurisprudence on these "appear in the open and prove his allegation in
clauses for in the United States, there is the proper forum."6 Judge Caoibes set a
probably no more intensely controverted area of preliminary conference on October 12, 2000.
constitutional interpretation than the religion Escritor moved for the inhibition of Judge
clauses.1 The U.S. Supreme Court itself has Caoibes from hearing her case to avoid
acknowledged that in this constitutional area, suspicion and bias as she previously filed an
there is "considerable internal inconsistency in administrative complaint against him and said
the opinions of the Court."2 As stated by a case was still pending in the Office of the Court
professor of law, "(i)t is by now notorious that Administrator (OCA). Escritor’s motion was
legal doctrines and judicial decisions in the area denied. The preliminary conference proceeded
of religious freedom are in serious disarray. In with both Estrada and Escritor in attendance.
perhaps no other area of constitutional law have Estrada confirmed that he filed the letter-
confusion and inconsistency achieved such complaint for immorality against Escritor
undisputed sovereignty."3 Nevertheless, this because in his frequent visits to the Hall of
thicket is the only path to take to conquer the Justice of Las Piñas City, he learned from
mountain of a legal problem the case at bar conversations therein that Escritor was living
presents. Both the penetrating and panoramic with a man not her husband and that she had an
view this climb would provide will largely chart eighteen to twenty-year old son by this man. This
the course of religious freedom in Philippine prompted him to write to Judge Caoibes as he
jurisdiction. That the religious freedom question believed that employees of the judiciary should
arose in an administrative case involving only be respectable and Escritor’s live-in
one person does not alter the paramount arrangement did not command respect.7
importance of the question for the "constitution
commands the positive protection by Respondent Escritor testified that when she
government of religious freedom -not only for a entered the judiciary in 1999,8 she was already
minority, however small- not only for a majority, a widow, her husband having died in 1998.9 She
however large- but for each of us."4 admitted that she has been living with Luciano
Quilapio, Jr. without the benefit of marriage for
I. Facts twenty years and that they have a son. But as a
member of the religious sect known as the
The facts of the case will determine whether Jehovah’s Witnesses and the Watch Tower and
respondent will prevail in her plea of religious Bible Tract Society, their conjugal arrangement
freedom. It is necessary therefore to lay down is in conformity with their religious beliefs. In fact,
the facts in detail, careful not to omit the after ten years of living together, she executed
essentials. on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
 CONSTI LAW II ACJUCO FINALS 53

duly signed by both respondent and her mate in

DECLARATION OF PLEDGING marital relationship with the witnesses
FAITHFULNESS concurring their acceptance to the arrangement
as approved by the WATCH TOWER BIBLE and
I, Soledad S. Escritor, do hereby declare that I TRACT SOCIETY, Philippine Branch.
have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done all Same marital arrangement is recognized as a
within my ability to obtain legal recognition of this binding tie before "JEHOVAH" God and before
relationship by the proper public authorities and all persons to be held to and honored in full
that it is because of having been unable to do so accord with the principles of God’s Word.
that I therefore make this public declaration
pledging faithfulness in this marital relationship. xxx xxx xxx

I recognize this relationship as a binding tie Undersigned submits to the just, humane and
before ‘Jehovah’ God and before all persons to fair discretion of the Court with verification from
be held to and honored in full accord with the the WATCH TOWER BIBLE and TRACT
principles of God’s Word. I will continue to seek SOCIETY, Philippine Branch . . . to which
the means to obtain legal recognition of this undersigned believes to be a high authority in
relationship by the civil authorities and if at any relation to her case.13
future time a change in circumstances make this
possible, I promise to legalize this union. Deputy Court Administrator Christopher O. Lock
recommended that the case be referred to
Signed this 28th day of July 1991.10 Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Piñas City for investigation,
Escritor’s partner, Quilapio, executed a similar report and recommendation. In the course of
pledge on the same day.11 Both pledges were Judge Maceda’s investigation, Escritor again
executed in Atimonan, Quezon and signed by testified that her congregation allows her
three witnesses. At the time Escritor executed conjugal arrangement with Quilapio and it does
her pledge, her husband was still alive but living not consider it immoral. She offered to supply the
with another woman. Quilapio was likewise investigating judge some clippings which explain
married at that time, but had been separated in the basis of her congregation’s belief and
fact from his wife. During her testimony, Escritor practice regarding her conjugal arrangement.
volunteered to present members of her Escritor started living with Quilapio twenty years
congregation to confirm the truthfulness of their ago when her husband was still alive but living
"Declarations of Pledging Faithfulness," but with another woman. She met this woman who
Judge Caoibes deemed it unnecessary and confirmed to her that she was living with her
considered her identification of her signature (Escritor’s) husband.14
and the signature of Quilapio sufficient
authentication of the documents.12 Gregorio Salazar, a member of the Jehovah’s
Witnesses since 1985, also testified. He had
Judge Caoibes endorsed the complaint to been a presiding minister since 1991 and in such
Executive Judge Manuel B. Fernandez, Jr., who, capacity is aware of the rules and regulations of
in turn, endorsed the same to Court their congregation. He explained the import of
Administrator Alfredo L. Benipayo. On July 17, and procedure for executing a "Declaration of
2001, the Court, upon recommendation of Acting Pledging Faithfulness", viz:
Court Administrator Zenaida N. Elepaño,
directed Escritor to comment on the charge Q: Now, insofar as the pre-marital relationship is
against her. In her comment, Escritor reiterated concern (sic), can you cite some particular rules
her religious congregation’s approval of her and regulations in your congregation?
conjugal arrangement with Quilapio, viz:
A: Well, we of course, talk to the persons with
Herein respondent does not ignore alleged regards (sic) to all the parties involved and then
accusation but she reiterates to state with we request them to execute a Public Declaration
candor that there is no truth as to the veracity of of Pledge of faithfulness.
same allegation. Included herewith are
documents denominated as Declaration of Q: What is that document?
Pledging Faithfulness (Exhibit 1 and Exhibit 2)
 CONSTI LAW II ACJUCO FINALS 54

A: Declaration of Pledge of faithfulness. A: Can I sir, cite, what the Bible says, the basis
of that Pledge of Faithfulness as we Christians
Q: What are the relations of the document follow. The basis is herein stated in the Book of
Declaration of Pledge of faithfulness, who are Matthew, Chapter Five, Verse Twenty-two. So,
suppose (sic) to execute this document? in that verse of the Bible, Jesus said "that
everyone divorcing his wife, except on account
A: This must be signed, the document must be of fornication, makes her a subject for adultery,
signed by the elders of the congregation; the and whoever marries a divorced woman
couple, who is a member (sic) of the commits adultery.15
congregation, baptized member and true
member of the congregation. Escritor and Quilapio transferred to Salazar’s
Congregation, the Almanza Congregation in Las
Q: What standard rules and regulations do you Piñas, in May 2001. The declarations having
have in relation with this document? been executed in Atimonan, Quezon in 1991,
Salazar had no personal knowledge of the
A: Actually, sir, the signing of that document, ah, personal circumstances of Escritor and Quilapio
with the couple has consent to marital when they executed their declarations.
relationship (sic) gives the Christian However, when the two transferred to Almanza,
Congregation view that the couple has put Salazar inquired about their status from the
themselves on record before God and man that Atimonan Congregation, gathered comments of
they are faithful to each other. As if that relation the elders therein, and requested a copy of their
is validated by God. declarations. The Almanza Congregation
assumed that the personal circumstances of the
Q: From your explanation, Minister, do you couple had been considered by the Atimonan
consider it a pledge or a document between the Congregation when they executed their
parties, who are members of the congregation? declarations.

A: It is a pledge and a document. It is a Escritor and Quilapio’s declarations are

declaration, pledge of a (sic) pledge of recorded in the Watch Tower Central office.
faithfulness. They were executed in the usual and approved
form prescribed by the Watch Tower Bible and
Q: And what does pledge mean to you? Tract Society which was lifted from the article,
"Maintaining Marriage in Honor Before God and
A: It means to me that they have contracted, let Men," 16 in the March 15, 1977 issue of the
us say, I am the one who contracted with the Watch Tower magazine, entitled The
opposite member of my congregation, opposite Watchtower.
sex, and that this document will give us the right
to a marital relationship. The declaration requires the approval of the
elders of the Jehovah’s Witnesses congregation
Q: So, in short, when you execute a declaration and is binding within the congregation all over
of pledge of faithfulness, it is a preparation for the world except in countries where divorce is
you to enter a marriage? allowed. The Jehovah’s congregation requires
that at the time the declarations are executed,
A: Yes, Sir. the couple cannot secure the civil authorities’
approval of the marital relationship because of
Q: But it does not necessarily mean that the legal impediments. It is thus standard practice of
parties, cohabiting or living under the same roof? the congregation to check the couple’s marital
status before giving imprimatur to the conjugal
A: Well, the Pledge of faithfulness document is arrangement. The execution of the declaration
(sic) already approved as to the marital finds scriptural basis in Matthew 5:32 that when
relationship. the spouse commits adultery, the offended
spouse can remarry. The marital status of the
Q: Do you mean to say, Minister, by executing declarants and their respective spouses’
this document the contracting parties have the commission of adultery are investigated before
right to cohabit? the declarations are executed. Thus, in the case
of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her
 CONSTI LAW II ACJUCO FINALS 55

marital status before the declaration was means to . . . legalize their union." Thus, even
approved and the declaration is valid assuming arguendo that the declaration is valid
everywhere, including the Almanza and binding in her congregation, it is binding only
Congregation. That Escritor’s and Quilapio’s to her co-members in the congregation and
declarations were approved are shown by the serves only the internal purpose of displaying to
signatures of three witnesses, the elders in the the rest of the congregation that she and her
Atimonan Congregation. Salazar confirmed from mate are a respectable and morally upright
the congregation’s branch office that these three couple. Their religious belief and practice,
witnesses are elders in the Atimonan however, cannot override the norms of conduct
Congregation. Although in 1998 Escritor was required by law for government employees. To
widowed, thereby lifting the legal impediment to rule otherwise would create a dangerous
marry on her part, her mate is still not precedent as those who cannot legalize their
capacitated to remarry. Thus, their declarations live-in relationship can simply join the Jehovah’s
remain valid. Once all legal impediments for both Witnesses congregation and use their religion as
are lifted, the couple can already register their a defense against legal liability.19
marriage with the civil authorities and the validity
of the declarations ceases. The elders in the On the other hand, respondent Escritor
congregations can then solemnize their reiterates the validity of her conjugal
marriage as authorized by Philippine law. In arrangement with Quilapio based on the belief
sum, therefore, insofar as the congregation is and practice of her religion, the Jehovah’s
concerned, there is nothing immoral about the Witnesses. She quoted portions of the magazine
conjugal arrangement between Escritor and article entitled, "Maintaining Marriage Before
Quilapio and they remain members in good God and Men," in her memorandum signed by
standing in the congregation.17 herself, viz:

Salvador Reyes, a minister at the General de The Declaration of Pledging of Faithfulness

Leon, Valenzuela City Congregation of the (Exhibits "1" and "2") executed by the
Jehovah’s Witnesses since 1974 and member of respondent and her mate greatly affect the
the headquarters of the Watch Tower Bible and administrative liability of respondent. Jehovah’s
Tract Society of the Philippines, Inc., presented Witnesses admit and recognize (sic) the
the original copy of the magazine article entitled, supremacy of the proper public authorities in the
"Maintaining Marriage Before God and Men" to marriage arrangement. However, it is helpful to
which Escritor and Minister Salazar referred in understand the relative nature of Caesar’s
their testimonies. The article appeared in the authority regarding marriage. From country to
March 15, 1977 issue of the Watchtower country, marriage and divorce legislation
magazine published in Pennsylvania, U.S.A. presents a multitude of different angles and
Felix S. Fajardo, President of the Watch Tower aspects. Rather than becoming entangled in a
Bible and Tract Society of the Philippines, Inc., confusion of technicalities, the Christian, or the
authorized Reyes to represent him in one desiring to become a disciple of God’s Son,
authenticating the article. The article is can be guided by basic Scriptural principles that
distributed to the Jehovah’s Witnesses hold true in all cases.
congregations which also distribute them to the
public.18 God’s view is of first concern. So, first of all the
person must consider whether that one’s
The parties submitted their respective present relationship, or the relationship into
memoranda to the investigating judge. Both which he or she contemplates entering, is one
stated that the issue for resolution is whether or that could meet with God’s approval, or whether
not the relationship between respondent Escritor in itself, it violates the standards of God’s Word.
and Quilapio is valid and binding in their own Take, for example, the situation where a man
religious congregation, the Jehovah’s lives with a wife but also spends time living with
Witnesses. Complainant Estrada adds however, another woman as a concubine. As long as such
that the effect of the relationship to Escritor’s a state of concubinage prevails, the relationship
administrative liability must likewise be of the second woman can never be harmonized
determined. Estrada argued, through counsel, with Christian principles, nor could any
that the Declaration of Pledging Faithfulness declaration on the part of the woman or the man
recognizes the supremacy of the "proper public make it so. The only right course is cessation of
authorities" such that she bound herself "to seek the relationship. Similarly with an incestuous
 CONSTI LAW II ACJUCO FINALS 56

relationship with a member of one’s immediate chambers21 whom she claims was merely using
family, or a homosexual relationship or other petitioner to malign her.
such situation condemned by God’s Word. It is
not the lack of any legal validation that makes In his Report and Recommendation,
such relationships unacceptable; they are in investigating judge Maceda found Escritor’s
themselves unscriptural and hence, immoral. factual allegations credible as they were
Hence, a person involved in such a situation supported by testimonial and documentary
could not make any kind of "Declaration of evidence. He also noted that "(b)y strict Catholic
Faithfulness," since it would have no merit in standards, the live-in relationship of respondent
God’s eyes. with her mate should fall within the definition of
immoral conduct, to wit: ‘that which is willful,
If the relationship is such that it can have God’s flagrant, or shameless, and which shows a moral
approval, then, a second principle to consider is indifference to the opinion of the good and
that one should do all one can to establish the respectable members of the community’ (7
honorableness of one’s marital union in the eyes C.J.S. 959)’ (Delos Reyes vs. Aznar, 179 SCRA,
of all. (Heb. 13:4). If divorce is possible, then at p. 666)." He pointed out, however, that "the
such step should now be taken so that, having more relevant question is whether or not to exact
obtained the divorce (on whatever legal grounds from respondent Escritor, a member of
may be available), the present union can receive ‘Jehovah’s Witnesses,’ the strict moral
civil validation as a recognized marriage. standards of the Catholic faith in determining her
administrative responsibility in the case at
Finally, if the marital relationship is not one out bar."22 The investigating judge acknowledged
of harmony with the principles of God’s Word, that "religious freedom is a fundamental right
and if one has done all that can reasonably be which is entitled to the highest priority and the
done to have it recognized by civil authorities amplest protection among human rights, for it
and has been blocked in doing so, then, a involves the relationship of man to his Creator
Declaration Pledging Faithfulness can be (at p. 270, EBRALINAG supra, citing Chief
signed. In some cases, as has been noted, the Justice Enrique M. Fernando’s separate opinion
extreme slowness of official action may make in German vs. Barangan, 135 SCRA 514, 530-
accomplishing of legal steps a matter of many, 531)" and thereby recommended the dismissal
many years of effort. Or it may be that the costs of the complaint against Escritor.23
represent a crushingly heavy burden that the
individual would need years to be able to meet. After considering the Report and
In such cases, the declaration pledging Recommendation of Executive Judge Maceda,
faithfulness will provide the congregation with the Office of the Court Administrator, through
the basis for viewing the existing union as Deputy Court Administrator (DCA) Lock and with
honorable while the individual continues the approval of Court Administrator Presbitero
conscientiously to work out the legal aspects to Velasco, concurred with the factual findings of
the best of his ability. Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA
Keeping in mind the basic principles presented, Lock stressed that although Escritor had
the respondent as a Minister of Jehovah God, become capacitated to marry by the time she
should be able to approach the matter in a joined the judiciary as her husband had died a
balanced way, neither underestimating nor year before, "it is due to her relationship with a
overestimating the validation offered by the married man, voluntarily carried on, that
political state. She always gives primary concern respondent may still be subject to disciplinary
to God’s view of the union. Along with this, every action."24 Considering the ruling of the Court in
effort should be made to set a fine example of Dicdican v. Fernan, et al.25 that "court personnel
faithfulness and devotion to one’s mate, thus, have been enjoined to adhere to the exacting
keeping the marriage "honorable among all." standards of morality and decency in their
Such course will bring God’s blessing and result professional and private conduct in order to
to the honor and praise of the author of marriage, preserve the good name and integrity of the
Jehovah God. (1 Cor. 10:31-33)20 court of justice," DCA Lock found Escritor’s
defense of freedom of religion unavailing to
Respondent also brought to the attention of the warrant dismissal of the charge of immorality.
investigating judge that complainant’s Accordingly, he recommended that respondent
Memorandum came from Judge Caoibes’ be found guilty of immorality and that she be
 CONSTI LAW II ACJUCO FINALS 57

penalized with suspension of six months and IV. Old World Antecedents of the American
one day without pay with a warning that a Religion Clauses
repetition of a similar act will be dealt with more
severely in accordance with the Civil Service To understand the life that the religion clauses
Rules.26 have taken, it would be well to understand not
only its birth in the United States, but its
II. Issue conception in the Old World. One cannot
understand, much less intelligently criticize the
Whether or not respondent should be found approaches of the courts and the political
guilty of the administrative charge of "gross and branches to religious freedom in the recent past
immoral conduct." To resolve this issue, it is in the United States without a deep appreciation
necessary to determine the sub-issue of whether of the roots of these controversies in the ancient
or not respondent’s right to religious freedom and medieval world and in the American
should carve out an exception from the experience.27 This fresh look at the religion
prevailing jurisprudence on illicit relations for clauses is proper in deciding this case of first
which government employees are held impression.
administratively liable.
In primitive times, all of life may be said to have
III. Applicable Laws been religious. Every significant event in the
primitive man’s life, from birth to death, was
Respondent is charged with committing "gross marked by religious ceremonies. Tribal society
and immoral conduct" under Book V, Title I, survived because religious sanctions effectively
Chapter VI, Sec. 46(b)(5) of the Revised elicited adherence to social customs. A person
Administrative Code which provides, viz: who broke a custom violated a taboo which
would then bring upon him "the wrathful
Sec. 46. Discipline: General Provisions. - (a) No vengeance of a superhuman mysterious
officer or employee in the Civil Service shall be power."28 Distinction between the religious and
suspended or dismissed except for cause as non-religious would thus have been
provided by law and after due process. meaningless to him. He sought protection from
all kinds of evil - whether a wild beast or tribe
(b) The following shall be grounds for enemy and lightning or wind - from the same
disciplinary action: person. The head of the clan or the Old Man of
the tribe or the king protected his wards against
xxx xxx xxx both human and superhuman enemies. In time,
the king not only interceded for his people with
(5) Disgraceful and immoral conduct; xxx. the divine powers, but he himself was looked
upon as a divine being and his laws as divine
Not represented by counsel, respondent, in decrees.29
layman’s terms, invokes the religious beliefs and
practices and moral standards of her religion, Time came, however, when the function of
the Jehovah’s Witnesses, in asserting that her acting as intermediary between human and
conjugal arrangement with a man not her legal spiritual powers became sufficiently
husband does not constitute disgraceful and differentiated from the responsibility of leading
immoral conduct for which she should be held the tribe in war and policing it in peace as to
administratively liable. While not articulated by require the full-time services of a special priest
respondent, she invokes religious freedom class. This saw the birth of the social and
under Article III, Section 5 of the Constitution, communal problem of the competing claims of
which provides, viz: the king and priest. Nevertheless, from the
beginning, the king and not the priest was
Sec. 5. No law shall be made respecting an superior. The head of the tribe was the warrior,
establishment of religion, or prohibiting the free and although he also performed priestly
exercise thereof. The free exercise and functions, he carried out these functions
enjoyment of religious profession and worship, because he was the head and representative of
without discrimination or preference, shall the community.30
forever be allowed. No religious test shall be
required for the exercise of civil or political rights. There being no distinction between the religious
and the secular, the same authority that
 CONSTI LAW II ACJUCO FINALS 58

promulgated laws regulating relations between

man and man promulgated laws concerning Upon the monotheism of Moses was the
man’s obligations to the supernatural. This theocracy of Israel founded. This monotheism,
authority was the king who was the head of the more than anything else, charted not only the
state and the source of all law and who only future of religion in western civilization, but
delegated performance of rituals and sacrifice to equally, the future of the relationship between
the priests. The Code of Hammurabi, king of religion and state in the west. This fact is
Babylonia, imposed penalties for homicide, acknowledged by many writers, among whom is
larceny, perjury, and other crimes; regulated the Northcott who pointed out, viz:
fees of surgeons and the wages of masons and
tailors and prescribed rules for inheritance of Historically it was the Hebrew and Christian
property;31 and also catalogued the gods and conception of a single and universal God that
assigned them their places in the divine introduced a religious exclusivism leading to
hierarchy so as to put Hammurabi’s own god to compulsion and persecution in the realm of
a position of equality with existing gods.32 In religion. Ancient religions were regarded as
sum, the relationship of religion to the state confined to each separate people believing in
(king) in pre-Hebreic times may be characterized them, and the question of change from one
as a union of the two forces, with the state religious belief to another did not arise. It was not
almost universally the dominant partner.33 until an exclusive fellowship, that the questions
of proselytism, change of belief and liberty of
With the rise of the Hebrew state, a new term religion arose.37 (emphasis supplied)
had to be coined to describe the relation of the
Hebrew state with the Mosaic religion: The Hebrew theocracy existed in its pure form
theocracy. The authority and power of the state from Moses to Samuel. In this period, religion
was ascribed to God.34 The Mosaic creed was was not only superior to the state, but it was all
not merely regarded as the religion of the state, of the state. The Law of God as transmitted
it was (at least until Saul) the state itself. Among through Moses and his successors was the
the Hebrews, patriarch, prophet, and priest whole of government.
preceded king and prince. As man of God,
Moses decided when the people should travel With Saul, however, the state rose to be the rival
and when to pitch camp, when they should make and ultimately, the master, of religion. Saul and
war and when peace. Saul and David were David each received their kingdom from Samuel
made kings by the prophet Samuel, disciple of the prophet and disciple of Eli the priest, but
Eli the priest. Like the Code of Hammurabi, the soon the king dominated prophet and priest.
Mosaic code combined civil laws with religious Saul disobeyed and even sought to slay Samuel
mandates, but unlike the Hammurabi Code, the prophet of God.38 Under Solomon, the
religious laws were not of secondary subordination of religion to state became
importance. On the contrary, religious motivation complete; he used religion as an engine to
was primary and all-embracing: sacrifices were further the state’s purposes. He reformed the
made and Israel was prohibited from exacting order of priesthood established by Moses
usury, mistreating aliens or using false weights, because the high priest under that order
all because God commanded these. endorsed the claim of his rival to the throne.39

Moses of the Bible led not like the ancient kings. The subordination of religion to the state was
The latter used religion as an engine to advance also true in pre-Christian Rome which engaged
the purposes of the state. Hammurabi unified in emperor-worship. When Augustus became
Mesopotamia and established Babylon as its head of the Roman state and the priestly
capital by elevating its city-god to a primary hierarchy, he placed religion at a high esteem as
position over the previous reigning gods.35 part of a political plan to establish the real
Moses, on the other hand, capitalized on the religion of pre-Christian Rome - the worship of
natural yearnings of the Hebrew slaves for the head of the state. He set his great uncle
freedom and independence to further God’s Julius Caesar among the gods, and commanded
purposes. Liberation and Exodus were preludes that worship of Divine Julius should not be less
to Sinai and the receipt of the Divine Law. The than worship of Apollo, Jupiter and other gods.
conquest of Canaan was a preparation for the When Augustus died, he also joined the ranks of
building of the temple and the full worship of the gods, as other emperors before him.40
God.36
 CONSTI LAW II ACJUCO FINALS 59

The onset of Christianity, however, posed a Constantine considered Christianity a means of

difficulty to the emperor as the Christians’ unifying his complex empire. Within seven years
dogmatic exclusiveness prevented them from after the Edict of Milan, under the emperor’s
paying homage to publicly accepted gods. In the command, great Christian edifices were erected,
first two centuries after the death of Jesus, the clergy were freed from public burdens others
Christians were subjected to persecution. By the had to bear, and private heathen sacrifices were
time of the emperor Trajan, Christians were forbidden.
considered outlaws. Their crime was "hatred of
the human race", placing them in the same The favors granted to Christianity came at a
category as pirates and brigands and other price: state interference in religious affairs.
"enemies of mankind" who were subject to Constantine and his successors called and
summary punishments.41 dismissed church councils, and enforced unity of
belief and practice. Until recently the church had
In 284, Diocletian became emperor and sought been the victim of persecution and repression,
to reorganize the empire and make its but this time it welcomed the state’s persecution
administration more efficient. But the closely-knit and repression of the nonconformist and the
hierarchically controlled church presented a orthodox on the belief that it was better for
serious problem, being a state within a state over heretics to be purged of their error than to die
which he had no control. He had two options: unsaved.
either to force it into submission and break its
power or enter into an alliance with it and Both in theory as in practice, the partnership
procure political control over it. He opted for between church and state was not easy. It was
force and revived the persecution, destroyed the a constant struggle of one claiming dominance
churches, confiscated sacred books, imprisoned over the other. In time, however, after the
the clergy and by torture forced them to collapse and disintegration of the Roman
sacrifice.42 But his efforts proved futile. Empire, and while monarchical states were
gradually being consolidated among the
The later emperor, Constantine, took the second numerous feudal holdings, the church stood as
option of alliance. Constantine joined with the one permanent, stable and universal power.
Galerius and Licinius, his two co-rulers of the Not surprisingly, therefore, it claimed not merely
empire, in issuing an edict of toleration to equality but superiority over the secular states.
Christians "on condition that nothing is done by This claim, symbolized by Pope Leo’s crowning
them contrary to discipline."43 A year later, after of Charlemagne, became the church’s accepted
Galerius died, Constantine and Licius jointly principle of its relationship to the state in the
issued the epochal Edict of Milan (312 or 313), a Middle Ages. As viewed by the church, the union
document of monumental importance in the of church and state was now a union of the state
history of religious liberty. It provided "that liberty in the church. The rulers of the states did not
of worship shall not be denied to any, but that concede to this claim of supremacy. Thus, while
the mind and will of every individual shall be free Charlemagne received his crown from the Pope,
to manage divine affairs according to his own he himself crowned his own son as successor to
choice." (emphasis supplied) Thus, all restrictive nullify the inference of supremacy.45 The whole
statutes were abrogated and it was enacted "that history of medieval Europe was a struggle for
every person who cherishes the desire to supremacy between prince and Pope and the
observe the Christian religion shall freely and resulting religious wars and persecution of
unconditionally proceed to observe the same heretics and nonconformists. At about the
without let or hindrance." Furthermore, it was second quarter of the 13th century, the
provided that the "same free and open power to Inquisition was established, the purpose of
follow their own religion or worship is granted which was the discovery and extermination of
also to others, in accordance with the tranquillity heresy. Accused heretics were tortured with the
of our times, in order that every person may have approval of the church in the bull Ad extirpanda
free opportunity to worship the object of his issued by Pope Innocent IV in 1252.
choice."(emphasis supplied)44
The corruption and abuses of the Catholic
Before long, not only did Christianity achieve Church spurred the Reformation aimed at
equal status, but acquired privilege, then reforming the Catholic Church and resulting in
prestige, and eventually, exclusive power. the establishment of Protestant churches. While
Religion became an engine of state policy as Protestants are accustomed to ascribe to the
 CONSTI LAW II ACJUCO FINALS 60

Reformation the rise of religious liberty and its of the Quakers founded by George Fox in the
acceptance as the principle governing the 17th century, endorsed the supremacy and
relations between a democratic state and its freedom of the individual conscience. They
citizens, history shows that it is more accurate to regarded religion as outside the realm of political
say that the "same causes that gave rise to the governments.53 The English Baptists
Protestant revolution also resulted in the proclaimed that the "magistrate is not to meddle
widespread acceptance of the principle of with religion or matters of conscience, nor
religious liberty, and ultimately of the principle of compel men to this or that form of religion."54
separation of church and state."46 Pleas for
tolerance and freedom of conscience can Thus, out of the Reformation, three
without doubt be found in the writings of leaders rationalizations of church-state relations may be
of the Reformation. But just as Protestants living distinguished: the Erastian (after the German
in the countries of papists pleaded for toleration doctor Erastus), the theocratic, and the
of religion, so did the papists that lived where separatist. The first assumed state superiority in
Protestants were dominant.47 Papist and ecclesiastical affairs and the use of religion as
Protestant governments alike accepted the idea an engine of state policy as demonstrated by
of cooperation between church and state and Luther’s belief that civic cohesion could not exist
regarded as essential to national unity the without religious unity so that coercion to
uniformity of at least the outward manifestations achieve religious unity was justified. The second
of religion.48 Certainly, Luther, leader of the was founded on ecclesiastical supremacy and
Reformation, stated that "neither pope, nor the use of state machinery to further religious
bishop, nor any man whatever has the right of interests as promoted by Calvin. The third, which
making one syllable binding on a Christian man, was yet to achieve ultimate and complete
unless it be done with his own consent."49 But expression in the New World, was discernibly in
when the tables had turned and he was no its incipient form in the arguments of some
longer the hunted heretic, he likewise stated dissident minorities that the magistrate should
when he made an alliance with the secular not intermeddle in religious affairs.55 After the
powers that "(h)eretics are not to be disputed Reformation, Erastianism pervaded all Europe
with, but to be condemned unheard, and whilst except for Calvin’s theocratic Geneva. In
they perish by fire, the faithful ought to pursue England, perhaps more than in any other
the evil to its source, and bathe their hands in country, Erastianism was at its height. To
the blood of the Catholic bishops, and of the illustrate, a statute was enacted by Parliament in
Pope, who is a devil in disguise."50 To Luther, 1678, which, to encourage woolen trade,
unity among the peoples in the interests of the imposed on all clergymen the duty of seeing to it
state was an important consideration. Other that no person was buried in a shroud made of
personalities in the Reformation such as any substance other than wool.56 Under
Melanchton, Zwingli and Calvin strongly Elizabeth, supremacy of the crown over the
espoused theocracy or the use of the state as an church was complete: ecclesiastical offices were
engine to further religion. In establishing regulated by her proclamations, recusants were
theocracy in Geneva, Calvin made absence fined and imprisoned, Jesuits and proselytizing
from the sermon a crime, he included criticism of priests were put to death for high treason, the
the clergy in the crime of blasphemy punishable thirty-nine Articles of the Church of England
by death, and to eliminate heresy, he were adopted and English Protestantism
cooperated in the Inquisition.51 attained its present doctrinal status.57 Elizabeth
was to be recognized as "the only Supreme
There were, however, those who truly advocated Governor of this realm . . . as well in all spiritual
religious liberty. Erasmus, who belonged to the or ecclesiastical things or causes as temporal."
Renaissance than the Reformation, wrote that She and her successors were vested, in their
"(t)he terrible papal edict, the more terrible dominions, with "all manner of jurisdictions,
imperial edict, the imprisonments, the privileges, and preeminences, in any wise
confiscations, the recantations, the fagots and touching or concerning any spiritual or
burnings, all these things I can see accomplish ecclesiastical jurisdiction."58 Later, however,
nothing except to make the evil more Cromwell established the constitution in 1647
widespread."52 The minority or dissident sects which granted full liberty to all Protestant sects,
also ardently advocated religious liberty. The but denied toleration to Catholics.59 In 1689,
Anabaptists, persecuted and despised, along William III issued the Act of Toleration which
with the Socinians (Unitarians) and the Friends established a de facto toleration for all except
 CONSTI LAW II ACJUCO FINALS 61

Catholics. The Catholics achieved religious of non-belief in their doctrines, and failure to pay
liberty in the 19th century when the Roman taxes and tithes to support them.61
Catholic Relief Act of 1829 was adopted. The
Jews followed suit in 1858 when they were finally In 1784, James Madison captured in this
permitted to sit in Parliament.60 statement the entire history of church-state
relations in Europe up to the time the United
When the representatives of the American States Constitution was adopted, viz:
states met in Philadelphia in 1787 to draft the
constitutional foundation of the new republic, the Torrents of blood have been spilt in the world in
theocratic state which had flourished vain attempts of the secular arm to extinguish
intermittently in Israel, Judea, the Holy Roman religious discord, by proscribing all differences in
Empire and Geneva was completely gone. The religious opinions.62
prevailing church-state relationship in Europe
was Erastianism embodied in the system of In sum, this history shows two salient features:
jurisdictionalism whereby one faith was favored First, with minor exceptions, the history of
as the official state-supported religion, but other church-state relationships was characterized by
faiths were permitted to exist with freedom in persecution, oppression, hatred, bloodshed, and
various degrees. No nation had yet adopted as war, all in the name of the God of Love and of
the basis of its church-state relations the the Prince of Peace. Second, likewise with minor
principle of the mutual independence of religion exceptions, this history witnessed the
and government and the concomitant principle unscrupulous use of religion by secular powers
that neither might be used as an engine to to promote secular purposes and policies, and
further the policies of the other, although the the willing acceptance of that role by the
principle was in its seminal form in the vanguards of religion in exchange for the favors
arguments of some dissident minorities and and mundane benefits conferred by ambitious
intellectual leaders of the Renaissance. The princes and emperors in exchange for religion’s
religious wars of 16th and 17th century Europe invaluable service. This was the context in which
were a thing of the past by the time America the unique experiment of the principle of
declared its independence from the Old World, religious freedom and separation of church and
but their memory was still vivid in the minds of state saw its birth in American constitutional
the Constitutional Fathers as expressed by the democracy and in human history.63
United States Supreme Court, viz:
V. Factors Contributing to the Adoption
The centuries immediately before and of the American Religion Clauses
contemporaneous with the colonization of
America had been filled with turmoil, civil strife, Settlers fleeing from religious persecution in
and persecution generated in large part by Europe, primarily in Anglican-dominated
established sects determined to maintain their England, established many of the American
absolute political and religious supremacy. With colonies. British thought pervaded these
the power of government supporting them, at colonies as the immigrants brought with them
various times and places, Catholics had their religious and political ideas from England
persecuted Protestants, Protestants had and English books and pamphlets largely
persecuted Catholics, Protestant sects had provided their cultural fare.64 But although these
persecuted other protestant sects, Catholics of settlers escaped from Europe to be freed from
one shade of belief had persecuted Catholics of bondage of laws which compelled them to
another shade of belief, and all of these had from support and attend government favored
time to time persecuted Jews. In efforts to force churches, some of these settlers themselves
loyalty to whatever religious group happened to transplanted into American soil the oppressive
be on top and in league with the government of practices they escaped from. The charters
a particular time and place, men and women had granted by the English Crown to the individuals
been fined, cast in jail, cruelly tortured, and and companies designated to make the laws
killed. Among the offenses for which these which would control the destinies of the colonials
punishments had been inflicted were such things authorized them to erect religious
as speaking disrespectfully of the views of establishments, which all, whether believers or
ministers of government-established churches, not, were required to support or attend.65 At one
non-attendance at those churches, expressions time, six of the colonies established a state
religion. Other colonies, however, such as
 CONSTI LAW II ACJUCO FINALS 62

Rhode Island and Delaware tolerated a high scarcity of adherents. Only about four percent of
degree of religious diversity. Still others, which the entire population of the country had a church
originally tolerated only a single religion, affiliation at the time the republic was
eventually extended support to several different founded.70 This might be attributed to the
faiths.66 drifting to the American colonies of the
skepticism that characterized European
This was the state of the American colonies Enlightenment.71 Economic considerations
when the unique American experiment of might have also been a factor. The individualism
separation of church and state came about. The of the American colonist, manifested in the
birth of the experiment cannot be attributed to a multiplicity of sects, also resulted in much
single cause or event. Rather, a number of unaffiliated religion which treated religion as a
interdependent practical and ideological factors personal non-institutional matter. The
contributed in bringing it forth. Among these prevalence of lack of church affiliation
were the "English Act of Toleration of 1689, the contributed to religious liberty and
multiplicity of sects, the lack of church affiliation disestablishment as persons who were not
on the part of most Americans, the rise of connected with any church were not likely to
commercial intercourse, the exigencies of the persecute others for similar independence nor
Revolutionary War, the Williams-Penn tradition accede to compulsory taxation to support a
and the success of their experiments, the church to which they did not belong.72
writings of Locke, the social contract theory, the
Great Awakening, and the influence of European However, for those who were affiliated to
rationalism and deism."67 Each of these factors churches, the colonial policy regarding their
shall be briefly discussed. worship generally followed the tenor of the
English Act of Toleration of 1689. In England,
First, the practical factors. England’s policy of this Act conferred on Protestant dissenters the
opening the gates of the American colonies to right to hold public services subject to
different faiths resulted in the multiplicity of sects registration of their ministers and places of
in the colonies. With an Erastian justification, worship.73 Although the toleration accorded to
English lords chose to forego protecting what Protestant dissenters who qualified under its
was considered to be the true and eternal church terms was only a modest advance in religious
of a particular time in order to encourage trade freedom, it nevertheless was of some influence
and commerce. The colonies were large to the American experiment.74 Even then, for
financial investments which would be profitable practical considerations, concessions had to be
only if people would settle there. It would be made to other dissenting churches to ensure
difficult to engage in trade with persons one their cooperation in the War of Independence
seeks to destroy for religious belief, thus which thus had a unifying effect on the colonies.
tolerance was a necessity. This tended to
distract the colonies from their preoccupations Next, the ideological factors. First, the Great
over their religion and its exclusiveness, Awakening in mid-18th century, an evangelical
encouraging them "to think less of the Church religious revival originating in New England,
and more of the State and of commerce."68 The caused a break with formal church religion and
diversity brought about by the colonies’ open a resistance to coercion by established
gates encouraged religious freedom and non- churches. This movement emphasized an
establishment in several ways. First, as there emotional, personal religion that appealed
were too many dissenting sects to abolish, there directly to the individual, putting emphasis on the
was no alternative but to learn to live together. rights and duties of the individual conscience
Secondly, because of the daily exposure to and its answerability exclusively to God. Thus,
different religions, the passionate conviction in although they had no quarrel with orthodox
the exclusive rightness of one’s religion, which Christian theology as in fact they were
impels persecution for the sake of one’s religion, fundamentalists, this group became staunch
waned. Finally, because of the great diversity of advocates of separation of church and state.75
the sects, religious uniformity was not possible,
and without such uniformity, establishment could Then there was the Williams-Penn tradition.
not survive.69 Roger Williams was the founder of the colony of
Rhode Island where he established a community
But while there was a multiplicity of of Baptists, Quakers and other nonconformists.
denomination, paradoxically, there was a In this colony, religious freedom was not based
 CONSTI LAW II ACJUCO FINALS 63

on practical considerations but on the concept of

mutual independence of religion and Undeniably, John Locke and the social contract
government. In 1663, Rhode Island obtained a theory also contributed to the American
charter from the British crown which declared experiment. The social contract theory
that settlers have it "much on their heart to hold popularized by Locke was so widely accepted as
forth a livelie experiment that a most flourishing to be deemed self-evident truth in America’s
civil state may best be maintained . . . with full Declaration of Independence. With the doctrine
libertie in religious concernments."76 In of natural rights and equality set forth in the
Williams’ pamphlet, The Bloudy Tenent of Declaration of Independence, there was no
Persecution for cause of Conscience, discussed room for religious discrimination. It was difficult
in a Conference between Truth and Peace,77 he to justify inequality in religious treatment by a
articulated the philosophical basis for his new nation that severed its political bonds with
argument of religious liberty. To him, religious the English crown which violated the self-evident
freedom and separation of church and state did truth that all men are created equal.83
not constitute two but only one principle.
Religious persecution is wrong because it The social contract theory was applied by many
"confounds the Civil and Religious" and because religious groups in arguing against
"States . . . are proved essentially Civil. The establishment, putting emphasis on religion as a
"power of true discerning the true fear of God" is natural right that is entirely personal and not
not one of the powers that the people have within the scope of the powers of a political body.
transferred to Civil Authority.78 Williams’ Bloudy That Locke and the social contract theory were
Tenet is considered an epochal milestone in the influential in the development of religious
history of religious freedom and the separation freedom and separation is evident from the
of church and state.79 memorial presented by the Baptists to the
Continental Congress in 1774, viz:
William Penn, proprietor of the land that became
Pennsylvania, was also an ardent advocate of Men unite in society, according to the great Mr.
toleration, having been imprisoned for his Locke, with an intention in every one the better
religious convictions as a member of the to preserve himself, his liberty and property. The
despised Quakers. He opposed coercion in power of the society, or Legislature constituted
matters of conscience because "imposition, by them, can never be supposed to extend any
restraint and persecution for conscience sake, further than the common good, but is obliged to
highly invade the Divine prerogative." Aside from secure every one’s property. To give laws, to
his idealism, proprietary interests made receive obedience, to compel with the sword,
toleration in Pennsylvania necessary. He belong to none but the civil magistrate; and on
attracted large numbers of settlers by promising this ground we affirm that the magistrate’s power
religious toleration, thus bringing in immigrants extends not to establishing any articles of faith
both from the Continent and Britain. At the end or forms of worship, by force of laws; for laws are
of the colonial period, Pennsylvania had the of no force without penalties. The care of souls
greatest variety of religious groups. Penn was cannot belong to the civil magistrate, because
responsible in large part for the "Concessions his power consists only in outward force; but
and agreements of the Proprietors, Freeholders, pure and saving religion consists in the inward
and inhabitants of West Jersey, in America", a persuasion of the mind, without which nothing
monumental document in the history of civil can be acceptable to God.84 (emphasis
liberty which provided among others, for liberty supplied)
of conscience.80 The Baptist followers of
Williams and the Quakers who came after Penn The idea that religion was outside the jurisdiction
continued the tradition started by the leaders of of civil government was acceptable to both the
their denominations. Aside from the Baptists and religionist and rationalist. To the religionist, God
the Quakers, the Presbyterians likewise greatly or Christ did not desire that government have
contributed to the evolution of separation and that jurisdiction ("render unto Caesar that which
freedom.81 The Constitutional fathers who is Caesar’s"; "my kingdom is not of this world")
convened in Philadelphia in 1787, and Congress and to the rationalist, the power to act in the
and the states that adopted the First realm of religion was not one of the powers
Amendment in 1791 were very familiar with and conferred on government as part of the social
strongly influenced by the successful examples contract.85
of Rhode Island and Pennsylvania.82
 CONSTI LAW II ACJUCO FINALS 64

Not only the social contract theory drifted to the it is the mutual duty of all to practice Christian
colonies from Europe. Many of the leaders of the forbearance, love, and charity towards each
Revolutionary and post-revolutionary period other.92 (emphasis supplied)
were also influenced by European deism and
rationalism,86 in general, and some were The adoption of the Bill of Rights signified the
apathetic if not antagonistic to formal religious beginning of the end of establishment. Baptists,
worship and institutionalized religion. Jefferson, Presbyterians and Lutherans flooded the first
Paine, John Adams, Washington, Franklin, legislative assembly with petitions for abolition of
Madison, among others were reckoned to be establishment. While the majority of the
among the Unitarians or Deists. Unitarianism population were dissenters, a majority of the
and Deism contributed to the emphasis on legislature were churchmen. The legislature
secular interests and the relegation of historic compromised and enacted a bill in 1776
theology to the background.87 For these men of abolishing the more oppressive features of
the enlightenment, religion should be allowed to establishment and granting exemptions to the
rise and fall on its own, and the state must be dissenters, but not guaranteeing separation. It
protected from the clutches of the church whose repealed the laws punishing heresy and
entanglements has caused intolerance and absence from worship and requiring the
corruption as witnessed throughout history.88 dissenters to contribute to the support of the
Not only the leaders but also the masses establishment.93 But the dissenters were not
embraced rationalism at the end of the satisfied; they not only wanted abolition of
eighteenth century, accounting for the popularity support for the establishment, they opposed the
of Paine’s Age of Reason.89 compulsory support of their own religion as
others. As members of the established church
Finally, the events leading to religious freedom would not allow that only they would pay taxes
and separation in Virginia contributed while the rest did not, the legislature enacted in
significantly to the American experiment of the 1779 a bill making permanent the
First Amendment. Virginia was the "first state in establishment’s loss of its exclusive status and
the history of the world to proclaim the decree of its power to tax its members; but those who
absolute divorce between church and state."90 voted for it did so in the hope that a general
Many factors contributed to this, among which assessment bill would be passed. Without the
were that half to two-thirds of the population latter, the establishment would not survive.
were organized dissenting sects, the Great Thus, a bill was introduced in 1779 requiring
Awakening had won many converts, the every person to enroll his name with the county
established Anglican Church of Virginia found clerk and indicate which "society for the purpose
themselves on the losing side of the Revolution of Religious Worship" he wished to support. On
and had alienated many influential laymen with the basis of this list, collections were to be made
its identification with the Crown’s tyranny, and by the sheriff and turned over to the clergymen
above all, present in Virginia was a group of and teachers designated by the religious
political leaders who were devoted to liberty congregation. The assessment of any person
generally,91 who had accepted the social who failed to enroll in any society was to be
contract as self-evident, and who had been divided proportionately among the societies.94
greatly influenced by Deism and Unitarianism. The bill evoked strong opposition.
Among these leaders were Washington, Patrick
Henry, George Mason, James Madison and In 1784, another bill, entitled "Bill Establishing a
above the rest, Thomas Jefferson. Provision for Teachers of the Christian Religion"
was introduced requiring all persons "to pay a
The first major step towards separation in moderate tax or contribution annually for the
Virginia was the adoption of the following support of the Christian religion, or of some
provision in the Bill of Rights of the state’s first Christian church, denomination or communion of
constitution: Christians, or for some form of Christian
worship."95 This likewise aroused the same
That religion, or the duty which we owe to our opposition to the 1779 bill. The most telling blow
Creator, and the manner of discharging it, can against the 1784 bill was the monumental
be directed only by reason and conviction, not "Memorial and Remonstrance against Religious
by force or violence; and therefore, all men are Assessments" written by Madison and widely
equally entitled to the free exercise of religion distributed before the reconvening of legislature
according to the dictates of conscience; and that in the fall of 1785.96 It stressed natural rights,
 CONSTI LAW II ACJUCO FINALS 65

the government’s lack of jurisdiction over the xxx xxx xxx

domain of religion, and the social contract as the
ideological basis of separation while also citing Be it therefore enacted by the General
practical considerations such as loss of Assembly. That no man shall be compelled to
population through migration. He wrote, viz: frequent or support any religious worship, place
or ministry whatsoever, nor shall be enforced,
Because we hold it for a ‘fundamental and restrained, molested or burdened in his body or
undeniable truth,’ that religion, or the duty which goods, nor shall otherwise suffer on account of
we owe to our creator, and the manner of his religious opinions or beliefs, but that all men
discharging it, can be directed only by reason shall be free to profess, and by argument to
and conviction, not by force or violence. The maintain, their opinions in matters of religion,
religion, then, of every man, must be left to the and that the same shall in no wise diminish,
conviction and conscience of every man; and it enlarge or affect their civil capacities.98
is the right of every man to exercise it as these (emphases supplied)
may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the This statute forbade any kind of taxation in
opinions of men, depending only on the support of religion and effectually ended any
evidence contemplated in their own minds, thought of a general or particular establishment
cannot follow the dictates of other men; it is in Virginia.99 But the passage of this law was
unalienable, also, because what is here a right obtained not only because of the influence of the
towards men, is a duty towards the creator. It is great leaders in Virginia but also because of
the duty of every man to render the creator such substantial popular support coming mainly from
homage, and such only as he believes to be the two great dissenting sects, namely the
acceptable to him; this duty is precedent, both in Presbyterians and the Baptists. The former were
order of time and degree of obligation, to the never established in Virginia and an
claims of civil society. Before any man can be underprivileged minority of the population. This
considered as a member of civil society, he must made them anxious to pull down the existing
be considered as a subject of the governor of the state church as they realized that it was
universe; and if a member of civil society, who impossible for them to be elevated to that
enters into any subordinate association, must privileged position. Apart from these
always do it with a reservation of his duty to the expediential considerations, however, many of
general authority, much more must every man the Presbyterians were sincere advocates of
who becomes a member of any particular civil separation100 grounded on rational, secular
society do it with the saving his allegiance to the arguments and to the language of natural
universal sovereign.97 (emphases supplied) religion.101 Influenced by Roger Williams, the
Baptists, on the other hand, assumed that
Madison articulated in the Memorial the widely religion was essentially a matter of concern of
held beliefs in 1785 as indicated by the great the individual and his God, i.e., subjective,
number of signatures appended to the Memorial. spiritual and supernatural, having no relation
The assessment bill was speedily defeated. with the social order.102 To them, the Holy
Ghost was sufficient to maintain and direct the
Taking advantage of the situation, Madison Church without governmental assistance and
called up a much earlier 1779 bill of Jefferson state-supported religion was contrary ti the spirit
which had not been voted on, the "Bill for of the Gospel.103 Thus, separation was
Establishing Religious Freedom", and it was necessary.104 Jefferson’s religious freedom
finally passed in January 1786. It provided, viz: statute was a milestone in the history of religious
freedom. The United States Supreme Court has
Well aware that Almighty God hath created the not just once acknowledged that the provisions
mind free; that all attempts to influence it by of the First Amendment of the U.S. Constitution
temporal punishments or burdens, or by civil had the same objectives and intended to afford
incapacitations, tend not only to beget habits of the same protection against government
hypocrisy and meanness, and are a departure interference with religious liberty as the Virginia
from the plan of the Holy Author of our religion, Statute of Religious Liberty.
who being Lord both of body and mind, yet
chose not to propagate it by coercions on either, Even in the absence of the religion clauses, the
as was in his Almighty power to do; principle that government had no power to
legislate in the area of religion by restricting its
 CONSTI LAW II ACJUCO FINALS 66

free exercise or establishing it was implicit in the centuries ago, in matters of social life which have
Constitution of 1787. This could be deduced a significant moral dimension, government was
from the prohibition of any religious test for the handmaid of religion, today religion, in its
federal office in Article VI of the Constitution and social responsibilities, as contrasted with
the assumed lack of power of Congress to act on personal faith and collective worship, is the
any subject not expressly mentioned in the handmaid of government."111 With government
Constitution.105 However, omission of an regulation of individual conduct having become
express guaranty of religious freedom and other more pervasive, inevitably some of those
natural rights nearly prevented the ratification of regulations would reach conduct that for some
the Constitution.106 In the ratifying conventions individuals are religious. As a result,
of almost every state, some objection was increasingly, there may be inadvertent collisions
expressed to the absence of a restriction on the between purely secular government actions and
Federal Government as regards legislation on religion clause values.112
religion.107 Thus, in 1791, this restriction was
made explicit with the adoption of the religion Parallel to this expansion of government has
clauses in the First Amendment as they are been the expansion of religious organizations in
worded to this day, with the first part usually population, physical institutions, types of
referred to as the Establishment Clause and the activities undertaken, and sheer variety of
second part, the Free Exercise Clause, viz: denominations, sects and cults. Churches run
day-care centers, retirement homes, hospitals,
Congress shall make no law respecting an schools at all levels, research centers,
establishment of religion or prohibiting the free settlement houses, halfway houses for
exercise thereof. prisoners, sports facilities, theme parks,
publishing houses and mass media programs. In
VI. Religion Clauses in the United States: these activities, religious organizations
complement and compete with commercial
Concept, Jurisprudence, Standards enterprises, thus blurring the line between many
types of activities undertaken by religious groups
With the widespread agreement regarding the and secular activities. Churches have also
value of the First Amendment religion clauses concerned themselves with social and political
comes an equally broad disagreement as to issues as a necessary outgrowth of religious
what these clauses specifically require, permit faith as witnessed in pastoral letters on war and
and forbid. No agreement has been reached by peace, economic justice, and human life, or in
those who have studied the religion clauses as ringing affirmations for racial equality on
regards its exact meaning and the paucity of religious foundations. Inevitably, these
records in Congress renders it difficult to developments have brought about substantial
ascertain its meaning.108 Consequently, the entanglement of religion and government.
jurisprudence in this area is volatile and fraught Likewise, the growth in population density,
with inconsistencies whether within a Court mobility and diversity has significantly changed
decision or across decisions. the environment in which religious organizations
and activities exist and the laws affecting them
One source of difficulty is the difference in the are made. It is no longer easy for individuals to
context in which the First Amendment was live solely among their own kind or to shelter
adopted and in which it is applied today. In the their children from exposure to competing
1780s, religion played a primary role in social life values. The result is disagreement over what
- i.e., family responsibilities, education, health laws should require, permit or prohibit;113 and
care, poor relief, and other aspects of social life agreement that if the rights of believers as well
with significant moral dimension - while as non-believers are all to be respected and
government played a supportive and indirect given their just due, a rigid, wooden
role by maintaining conditions in which these interpretation of the religion clauses that is blind
activities may be carried out by religious or to societal and political realities must be
religiously-motivated associations. Today, avoided.114
government plays this primary role and religion
plays the supportive role.109 Government runs Religion cases arise from different
even family planning, sex education, adoption circumstances. The more obvious ones arise
and foster care programs.110 Stated otherwise from a government action which purposely aids
and with some exaggeration, "(w)hereas two or inhibits religion. These cases are easier to
 CONSTI LAW II ACJUCO FINALS 67

resolve as, in general, these actions are plainly

unconstitutional. Still, this kind of cases poses The definition was clearly theistic which was
difficulty in ascertaining proof of intent to aid or reflective of the popular attitudes in 1890.
inhibit religion.115 The more difficult religion
clause cases involve government action with a In 1944, the Court stated in United States v.
secular purpose and general applicability which Ballard122 that the free exercise of religion
incidentally or inadvertently aids or burdens "embraces the right to maintain theories of life
religious exercise. In Free Exercise Clause and of death and of the hereafter which are rank
cases, these government actions are referred to heresy to followers of the orthodox faiths."123
as those with "burdensome effect" on religious By the 1960s, American pluralism in religion had
exercise even if the government action is not flourished to include non-theistic creeds from
religiously motivated.116 Ideally, the legislature Asia such as Buddhism and Taoism.124 In
would recognize the religions and their practices 1961, the Court, in Torcaso v. Watkins,125
and would consider them, when practical, in expanded the term "religion" to non-theistic
enacting laws of general application. But when beliefs such as Buddhism, Taoism, Ethical
the legislature fails to do so, religions that are Culture, and Secular Humanism. Four years
threatened and burdened turn to the courts for later, the Court faced a definitional problem in
protection.117 Most of these free exercise United States v. Seeger126 which involved four
claims brought to the Court are for exemption, men who claimed "conscientious objector"
not invalidation of the facially neutral law that has status in refusing to serve in the Vietnam War.
a "burdensome" effect.118 One of the four, Seeger, was not a member of
any organized religion opposed to war, but when
With the change in political and social context specifically asked about his belief in a Supreme
and the increasing inadvertent collisions Being, Seeger stated that "you could call (it) a
between law and religious exercise, the belief in a Supreme Being or God. These just do
definition of religion for purposes of interpreting not happen to be the words that I use." Forest
the religion clauses has also been modified to Peter, another one of the four claimed that after
suit current realities. Defining religion is a difficult considerable meditation and reflection "on
task for even theologians, philosophers and values derived from the Western religious and
moralists cannot agree on a comprehensive philosophical tradition," he determined that it
definition. Nevertheless, courts must define would be "a violation of his moral code to take
religion for constitutional and other legal human life and that he considered this belief
purposes.119 It was in the 1890 case of Davis v. superior to any obligation to the state." The
Beason120 that the United States Supreme Court avoided a constitutional question by
Court first had occasion to define religion, viz: broadly interpreting not the Free Exercise
Clause, but the statutory definition of religion in
The term ‘religion’ has reference to one’s views the Universal Military Training and Service Act of
of his relations to his Creator, and to the 1940 which exempt from combat anyone "who,
obligations they impose of reverence for his by reason of religious training and belief, is
being and character, and of obedience to his will. conscientiously opposed to participation in war
It is often confounded with the cultus or form of in any form." Speaking for the Court, Justice
worship of a particular sect, but is Clark ruled, viz:
distinguishable from the latter. The First
Amendment to the Constitution, in declaring that Congress, in using the expression ‘Supreme
Congress shall make no law respecting the Being’ rather than the designation ‘God,’ was
establishment of religion, or forbidding the free merely clarifying the meaning of religious
exercise thereof, was intended to allow tradition and belief so as to embrace all religions
everyone under the jurisdiction of the United and to exclude essentially political, sociological,
States to entertain such notions respecting his or philosophical views (and) the test of belief ‘in
relations to his Maker and the duties they impose relation to a Supreme Being’ is whether a given
as may be approved by his judgment and belief that is sincere and meaningful occupies a
conscience, and to exhibit his sentiments in such place in the life of its possessor parallel to the
form of worship as he may think proper, not orthodox belief in God. (emphasis supplied)
injurious to the equal rights of others, and to
prohibit legislation for the support of any The Court was convinced that Seeger, Peter and
religious tenets, or the modes of worship of any the others were conscientious objectors
sect.121 possessed of such religious belief and training.
 CONSTI LAW II ACJUCO FINALS 68

Amendment is captured if it were to read as

Federal and state courts have expanded the "Congress shall make no law respecting an
definition of religion in Seeger to include even establishment of religion or otherwise prohibiting
non-theistic beliefs such as Taoism or Zen the free exercise thereof" because the
Buddhism. It has been proposed that basically, fundamental and single purpose of the two
a creed must meet four criteria to qualify as religious clauses is to "avoid any infringement on
religion under the First Amendment. First, there the free exercise of religions"137 Thus, the
must be belief in God or some parallel belief that Establishment Clause mandates separation of
occupies a central place in the believer’s life. church and state to protect each from the other,
Second, the religion must involve a moral code in service of the larger goal of preserving
transcending individual belief, i.e., it cannot be religious liberty. The effect of the separation is to
purely subjective. Third, a demonstrable limit the opportunities for any religious group to
sincerity in belief is necessary, but the court capture the state apparatus to the disadvantage
must not inquire into the truth or reasonableness of those of other faiths, or of no faith at all138
of the belief.127 Fourth, there must be some because history has shown that religious fervor
associational ties,128 although there is also a conjoined with state power is likely to tolerate far
view that religious beliefs held by a single person less religious disagreement and disobedience
rather than being part of the teachings of any from those who hold different beliefs than an
kind of group or sect are entitled to the protection enlightened secular state.139 In the words of the
of the Free Exercise Clause.129 U.S. Supreme Court, the two clauses are
interrelated, viz: "(t)he structure of our
Defining religion is only the beginning of the government has, for the preservation of civil
difficult task of deciding religion clause cases. liberty, rescued the temporal institutions from
Having hurdled the issue of definition, the court religious interference. On the other hand, it has
then has to draw lines to determine what is or is secured religious liberty from the invasion of the
not permissible under the religion clauses. In this civil authority."140
task, the purpose of the clauses is the yardstick.
Their purpose is singular; they are two sides of In upholding religious liberty as the end goal in
the same coin.130 In devoting two clauses to religious clause cases, the line the court draws
religion, the Founders were stating not two to ensure that government does not establish
opposing thoughts that would cancel each other and instead remains neutral toward religion is
out, but two complementary thoughts that apply not absolutely straight. Chief Justice Burger
in different ways in different circumstances.131 explains, viz:
The purpose of the religion clauses - both in the
restriction it imposes on the power of the The course of constitutional neutrality in this
government to interfere with the free exercise of area cannot be an absolutely straight line;
religion and the limitation on the power of rigidity could well defeat the basic purpose of
government to establish, aid, and support these provisions, which is to insure that no
religion - is the protection and promotion of religion be sponsored or favored, none
religious liberty.132 The end, the goal, and the commanded and none inhibited.141 (emphasis
rationale of the religion clauses is this liberty.133 supplied)
Both clauses were adopted to prevent
government imposition of religious orthodoxy; Consequently, U.S. jurisprudence has produced
the great evil against which they are directed is two identifiably different,142 even opposing,
government-induced homogeneity.134 The strains of jurisprudence on the religion clauses:
Free Exercise Clause directly articulates the separation (in the form of strict separation or the
common objective of the two clauses and the tamer version of strict neutrality or separation)
Establishment Clause specifically addresses a and benevolent neutrality or accommodation. A
form of interference with religious liberty with view of the landscape of U.S. religion clause
which the Framers were most familiar and for cases would be useful in understanding these
which government historically had demonstrated two strains, the scope of protection of each
a propensity.135 In other words, free exercise is clause, and the tests used in religious clause
the end, proscribing establishment is a cases. Most of these cases are cited as
necessary means to this end to protect the rights authorities in Philippine religion clause cases.
of those who might dissent from whatever
religion is established.136 It has even been A. Free Exercise Clause
suggested that the sense of the First
 CONSTI LAW II ACJUCO FINALS 69

The Court first interpreted the Free Exercise So here, as a law of the organization of society
Clause in the 1878 case of Reynolds v. United under the exclusive dominion of the United
States.143 This landmark case involved States, it is provided that plural marriages shall
Reynolds, a Mormon who proved that it was his not be allowed. Can a man excuse his practices
religious duty to have several wives and that the to the contrary because of his religious belief?
failure to practice polygamy by male members of To permit this would be to make the professed
his religion when circumstances would permit doctrines of religious belief superior to the law of
would be punished with damnation in the life to the land, and in effect to permit every citizen to
come. Reynolds’ act of contracting a second become a law unto himself. Government could
marriage violated Section 5352, Revised exist only in name under such
Statutes prohibiting and penalizing bigamy, for circumstances.146
which he was convicted. The Court affirmed
Reynolds’ conviction, using what in The construct was thus simple: the state was
jurisprudence would be called the belief-action absolutely prohibited by the Free Exercise
test which allows absolute protection to belief Clause from regulating individual religious
but not to action. It cited Jefferson’s Bill beliefs, but placed no restriction on the ability of
Establishing Religious Freedom which, the state to regulate religiously motivated
according to the Court, declares "the true conduct. It was logical for belief to be accorded
distinction between what properly belongs to the absolute protection because any statute
Church and what to the State."144 The bill, designed to prohibit a particular religious belief
making a distinction between belief and action, unaccompanied by any conduct would most
states in relevant part, viz: certainly be motivated only by the legislature’s
preference of a competing religious belief. Thus,
That to suffer the civil magistrate to intrude his all cases of regulation of belief would amount to
powers into the field of opinion, and to restrain regulation of religion for religious reasons
the profession or propagation of principles on violative of the Free Exercise Clause. On the
supposition of their ill tendency, is a dangerous other hand, most state regulations of conduct
fallacy which at once destroys all religious are for public welfare purposes and have nothing
liberty; to do with the legislature’s religious preferences.
Any burden on religion that results from state
that it is time enough for the rightful purposes of regulation of conduct arises only when particular
civil government for its officers to interfere when individuals are engaging in the generally
principles break out into overt acts against regulated conduct because of their particular
peace and good order.145 (emphasis supplied) religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action
The Court then held, viz: test. As long as the Court found that regulation
address action rather than belief, the Free
Congress was deprived of all legislative power Exercise Clause did not pose any problem.147
over mere opinion, but was left free to reach The Free Exercise Clause thus gave no
actions which were in violation of social duties or protection against the proscription of actions
subversive of good order. . . even if considered central to a religion unless the
legislature formally outlawed the belief itself.148
Laws are made for the government of actions,
and while they cannot interfere with mere This belief-action distinction was held by the
religious belief and opinions, they may with Court for some years as shown by cases where
practices. Suppose one believed that human the Court upheld other laws which burdened the
sacrifice were a necessary part of religious practice of the Mormon religion by imposing
worship, would it be seriously contended that the various penalties on polygamy such as the Davis
civil government under which he lived could not case and Church of Latter Day Saints v. United
interfere to prevent a sacrifice? Or if a wife States.149 However, more than a century since
religiously believed it was her duty to burn Reynolds was decided, the Court has expanded
herself upon the funeral pile of her dead the scope of protection from belief to speech and
husband, would it be beyond the power of the conduct. But while the belief-action test has
civil government to prevent her carrying her been abandoned, the rulings in the earlier Free
belief into practice? Exercise cases have gone unchallenged. The
belief-action distinction is still of some
importance though as there remains an absolute
 CONSTI LAW II ACJUCO FINALS 70

prohibition of governmental proscription of

beliefs.150 Thus the Amendment embraces two concepts -
freedom to believe and freedom to act. The first
The Free Exercise Clause accords absolute is absolute but, in the nature of things, the
protection to individual religious convictions and second cannot be. Conduct remains subject to
beliefs151 and proscribes government from regulation for the protection of society. . . In
questioning a person’s beliefs or imposing every case, the power to regulate must be so
penalties or disabilities based solely on those exercised as not, in attaining a permissible end,
beliefs. The Clause extends protection to both unduly to infringe the protected freedom.
beliefs and unbelief. Thus, in Torcaso v. (emphasis supplied)156
Watkins,152 a unanimous Court struck down a
state law requiring as a qualification for public The Court stated, however, that government had
office an oath declaring belief in the existence of the power to regulate the times, places, and
God. The protection also allows courts to look manner of solicitation on the streets and assure
into the good faith of a person in his belief, but the peace and safety of the community.
prohibits inquiry into the truth of a person’s
religious beliefs. As held in United States v. Three years after Cantwell, the Court in Douglas
Ballard,153 "(h)eresy trials are foreign to the v. City of Jeanette,157 ruled that police could not
Constitution. Men may believe what they cannot prohibit members of the Jehovah’s Witnesses
prove. They may not be put to the proof of their from peaceably and orderly proselytizing on
religious doctrines or beliefs." Sundays merely because other citizens
complained. In another case likewise involving
Next to belief which enjoys virtually absolute the Jehovah’s Witnesses, Niemotko v.
protection, religious speech and expressive Maryland,158 the Court unanimously held
religious conduct are accorded the highest unconstitutional a city council’s denial of a permit
degree of protection. Thus, in the 1940 case of to the Jehovah’s Witnesses to use the city park
Cantwell v. Connecticut,154 the Court struck for a public meeting. The city council’s refusal
down a state law prohibiting door-to-door was because of the "unsatisfactory" answers of
solicitation for any religious or charitable cause the Jehovah’s Witnesses to questions about
without prior approval of a state agency. The law Catholicism, military service, and other issues.
was challenged by Cantwell, a member of the The denial of the public forum was considered
Jehovah’s Witnesses which is committed to blatant censorship. While protected, religious
active proselytizing. The Court invalidated the speech in the public forum is still subject to
state statute as the prior approval necessary reasonable time, place and manner regulations
was held to be a censorship of religion prohibited similar to non-religious speech. Religious
by the Free Exercise Clause. The Court held, proselytizing in congested areas, for example,
viz: may be limited to certain areas to maintain the
safe and orderly flow of pedestrians and
In the realm of religious faith, and in that of vehicular traffic as held in the case of Heffron v.
political belief, sharp differences arise. In both International Society for Krishna
fields the tenets of one may seem the rankest Consciousness.159
error to his neighbor. To persuade others to his
point of view, the pleader, as we know, resorts The least protected under the Free Exercise
to exaggeration, to vilification of men who have Clause is religious conduct, usually in the form
been, or are, prominent in church or state, and of unconventional religious practices. Protection
even to false statement. But the people of this in this realm depends on the character of the
nation have ordained in the light of history, that, action and the government rationale for
in spite of the probability of excesses and regulating the action.160 The Mormons’
abuses, these liberties are, in the long view, religious conduct of polygamy is an example of
essential to enlightened opinion and right unconventional religious practice. As discussed
conduct on the part of citizens of a in the Reynolds case above, the Court did not
democracy.155 afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again
Cantwell took a step forward from the protection involving Mormons, where the Court held, viz:
afforded by the Reynolds case in that it not only "(c)rime is not the less odious because
affirmed protection of belief but also freedom to sanctioned by what any particular sect may
act for the propagation of that belief, viz: designate as religion."161
 CONSTI LAW II ACJUCO FINALS 71

the issue of religious conduct as the Court said,

The belief-action test in Reynolds and Davis "(n)or does the issue as we see it turn on one’s
proved unsatisfactory. Under this test, regulation possession of particular religious views or the
of religiously dictated conduct would be upheld sincerity with which they are held. While religion
no matter how central the conduct was to the supplies appellees’ motive for enduring the
exercise of religion and no matter how discomforts of making the issue in this case,
insignificant was the government’s non-religious many citizens who do not share these religious
regulatory interest so long as the government is views hold such a compulsory rite to infringe
proscribing action and not belief. Thus, the Court constitutional liberty of the individual." (emphasis
abandoned the simplistic belief-action distinction supplied)165 The Court pronounced, however,
and instead recognized the deliberate- that, "freedoms of speech and of press, of
inadvertent distinction, i.e., the distinction assembly, and of worship . . . are susceptible
between deliberate state interference of only of restriction only to prevent grave and
religious exercise for religious reasons which immediate danger to interests which the state
was plainly unconstitutional and government’s may lawfully protect."166 The Court seemed to
inadvertent interference with religion in pursuing recognize the extent to which its approach in
some secular objective.162 In the 1940 case of Gobitis subordinated the religious liberty of
Minersville School District v. Gobitis,163 the political minorities - a specially protected
Court upheld a local school board requirement constitutional value - to the common everyday
that all public school students participate in a economic and public welfare objectives of the
daily flag salute program, including the majority in the legislature. This time, even
Jehovah’s Witnesses who were forced to salute inadvertent interference with religion must pass
the American flag in violation of their religious judicial scrutiny under the Free Exercise Clause
training, which considered flag salute to be with only grave and immediate danger sufficing
worship of a "graven image." The Court to override religious liberty. But the seeds of this
recognized that the general requirement of heightened scrutiny would only grow to a full
compulsory flag salute inadvertently burdened flower in the 1960s.167
the Jehovah Witnesses’ practice of their religion,
but justified the government regulation as an Nearly a century after Reynolds employed the
appropriate means of attaining national unity, belief-action test, the Warren Court began the
which was the "basis of national security." Thus, modern free exercise jurisprudence.168 A two-
although the Court was already aware of the part balancing test was established in Braunfeld
deliberate-inadvertent distinction in government v. Brown169 where the Court considered the
interference with religion, it continued to hold constitutionality of applying Sunday closing laws
that the Free Exercise Clause presented no to Orthodox Jews whose beliefs required them
problem to interference with religion that was to observe another day as the Sabbath and
inadvertent no matter how serious the abstain from commercial activity on Saturday.
interference, no matter how trivial the state’s Chief Justice Warren, writing for the Court, found
non-religious objectives, and no matter how that the law placed a severe burden on
many alternative approaches were available to Sabattarian retailers. He noted, however, that
the state to pursue its objectives with less impact since the burden was the indirect effect of a law
on religion, so long as government was acting in with a secular purpose, it would violate the Free
pursuit of a secular objective. Exercise Clause only if there were alternative
ways of achieving the state’s interest. He
Three years later, the Gobitis decision was employed a two-part balancing test of validity
overturned in West Virginia v. Barnette164 where the first step was for plaintiff to show that
which involved a similar set of facts and issue. the regulation placed a real burden on his
The Court recognized that saluting the flag, in religious exercise. Next, the burden would be
connection with the pledges, was a form of upheld only if the state showed that it was
utterance and the flag salute program was a pursuing an overriding secular goal by the
compulsion of students to declare a belief. The means which imposed the least burden on
Court ruled that "compulsory unification of religious practices.170 The Court found that the
opinions leads only to the unanimity of the state had an overriding secular interest in setting
graveyard" and exempt the students who were aside a single day for rest, recreation and
members of the Jehovah’s Witnesses from tranquility and there was no alternative means of
saluting the flag. A close scrutiny of the case, pursuing this interest but to require Sunday as a
however, would show that it was decided not on uniform rest day.
 CONSTI LAW II ACJUCO FINALS 72

exemption from the Saturday work requirement

Two years after came the stricter compelling that caused her disqualification from claiming
state interest test in the 1963 case of Sherbert v. the unemployment benefits. The Court reasoned
Verner.171 This test was similar to the two-part that upholding the denial of Sherbert’s benefits
balancing test in Braunfeld,172 but this latter test would force her to choose between receiving
stressed that the state interest was not merely benefits and following her religion. This choice
any colorable state interest, but must be placed "the same kind of burden upon the free
paramount and compelling to override the free exercise of religion as would a fine imposed
exercise claim. In this case, Sherbert, a Seventh against (her) for her Saturday worship." This
Day Adventist, claimed unemployment germinal case of Sherbert firmly established the
compensation under the law as her employment exemption doctrine, 175 viz:
was terminated for refusal to work on Saturdays
on religious grounds. Her claim was denied. She It is certain that not every conscience can be
sought recourse in the Supreme Court. In laying accommodated by all the laws of the land; but
down the standard for determining whether the when general laws conflict with scruples of
denial of benefits could withstand constitutional conscience, exemptions ought to be granted
scrutiny, the Court ruled, viz: unless some ‘compelling state interest’
intervenes.
Plainly enough, appellee’s conscientious
objection to Saturday work constitutes no Thus, in a short period of twenty-three years
conduct prompted by religious principles of a from Gobitis to Sherbert (or even as early as
kind within the reach of state legislation. If, Braunfeld), the Court moved from the doctrine
therefore, the decision of the South Carolina that inadvertent or incidental interferences with
Supreme Court is to withstand appellant’s religion raise no problem under the Free
constitutional challenge, it must be either Exercise Clause to the doctrine that such
because her disqualification as a beneficiary interferences violate the Free Exercise Clause in
represents no infringement by the State of her the absence of a compelling state interest - the
constitutional rights of free exercise, or because highest level of constitutional scrutiny short of a
any incidental burden on the free exercise of holding of a per se violation. Thus, the problem
appellant’s religion may be justified by a posed by the belief-action test and the
‘compelling state interest in the regulation of a deliberate-inadvertent distinction was
subject within the State’s constitutional power to addressed.176
regulate. . .’ NAACP v. Button, 371 US 415, 438
9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis Throughout the 1970s and 1980s under the
supplied) Warren, and afterwards, the Burger Court, the
rationale in Sherbert continued to be applied. In
The Court stressed that in the area of religious Thomas v. Review Board177 and Hobbie v.
liberty, it is basic that it is not sufficient to merely Unemployment Appeals Division,178 for
show a rational relationship of the substantial example, the Court reiterated the exemption
infringement to the religious right and a colorable doctrine and held that in the absence of a
state interest. "(I)n this highly sensitive compelling justification, a state could not
constitutional area, ‘[o]nly the gravest abuses, withhold unemployment compensation from an
endangering paramount interests, give occasion employee who resigned or was discharged due
for permissible limitation.’ Thomas v. Collins, to unwillingness to depart from religious
323 US 516, 530, 89 L ed 430, 440, 65 S Ct practices and beliefs that conflicted with job
315."174 The Court found that there was no requirements. But not every governmental
such compelling state interest to override refusal to allow an exemption from a regulation
Sherbert’s religious liberty. It added that even if which burdens a sincerely held religious belief
the state could show that Sherbert’s exemption has been invalidated, even though strict or
would pose serious detrimental effects to the heightened scrutiny is applied. In United States
unemployment compensation fund and v. Lee,179 for instance, the Court using strict
scheduling of work, it was incumbent upon the scrutiny and referring to Thomas, upheld the
state to show that no alternative means of federal government’s refusal to exempt Amish
regulations would address such detrimental employers who requested for exemption from
effects without infringing religious liberty. The paying social security taxes on wages on the
state, however, did not discharge this burden. ground of religious beliefs. The Court held that
The Court thus carved out for Sherbert an "(b)ecause the broad public interest in
 CONSTI LAW II ACJUCO FINALS 73

maintaining a sound tax system is of such a high establishment of any religion. The values
order, religious belief in conflict with the payment underlying these two provisions relating to
of taxes affords no basis for resisting the religion have been zealously protected,
tax."180 It reasoned that unlike in Sherbert, an sometimes even at the expense of other
exemption would significantly impair interests of admittedly high social importance. . .
government’s achievement of its objective - "the
fiscal vitality of the social security system;" The essence of all that has been said and written
mandatory participation is indispensable to on the subject is that only those interests of the
attain this objective. The Court noted that if an highest order and those not otherwise served
exemption were made, it would be hard to justify can overbalance legitimate claims to the free
not allowing a similar exemption from general exercise of religion. . .
federal taxes where the taxpayer argues that his
religious beliefs require him to reduce or . . . our decisions have rejected the idea that that
eliminate his payments so that he will not religiously grounded conduct is always outside
contribute to the government’s war-related the protection of the Free Exercise Clause. It is
activities, for example. true that activities of individuals, even when
religiously based, are often subject to regulation
The strict scrutiny and compelling state interest by the States in the exercise of their undoubted
test significantly increased the degree of power to promote the health, safety, and general
protection afforded to religiously motivated welfare, or the Federal government in the
conduct. While not affording absolute immunity exercise of its delegated powers . . . But to agree
to religious activity, a compelling secular that religiously grounded conduct must often be
justification was necessary to uphold public subject to the broad police power of the State is
policies that collided with religious practices. not to deny that there are areas of conduct
Although the members of the Court often protected by the Free Exercise Clause of the
disagreed over which governmental interests First Amendment and thus beyond the power of
should be considered compelling, thereby the State to control, even under regulations of
producing dissenting and separate opinions in general applicability. . . .This case, therefore,
religious conduct cases, this general test does not become easier because respondents
established a strong presumption in favor of the were convicted for their "actions" in refusing to
free exercise of religion.181 send their children to the public high school; in
this context belief and action cannot be neatly
Heightened scrutiny was also used in the 1972 confined in logic-tight compartments. . . 183
case of Wisconsin v. Yoder182 where the Court
upheld the religious practice of the Old Order The onset of the 1990s, however, saw a major
Amish faith over the state’s compulsory high setback in the protection afforded by the Free
school attendance law. The Amish parents in Exercise Clause. In Employment Division,
this case did not permit secular education of their Oregon Department of Human Resources v.
children beyond the eighth grade. Chief Justice Smith,184 the sharply divided Rehnquist Court
Burger, writing for the majority, held, viz: dramatically departed from the heightened
scrutiny and compelling justification approach
It follows that in order for Wisconsin to compel and imposed serious limits on the scope of
school attendance beyond the eighth grade protection of religious freedom afforded by the
against a claim that such attendance interferes First Amendment. In this case, the well-
with the practice of a legitimate religious belief, it established practice of the Native American
must appear either that the State does not deny Church, a sect outside the Judeo-Christian
the free exercise of religious belief by its mainstream of American religion, came in
requirement, or that there is a state interest of conflict with the state’s interest in prohibiting the
sufficient magnitude to override the interest use of illicit drugs. Oregon’s controlled
claiming protection under the Free Exercise substances statute made the possession of
Clause. Long before there was general peyote a criminal offense. Two members of the
acknowledgement of the need for universal church, Smith and Black, worked as drug
education, the Religion Clauses had specially rehabilitation counselors for a private social
and firmly fixed the right of free exercise of service agency in Oregon. Along with other
religious beliefs, and buttressing this church members, Smith and Black ingested
fundamental right was an equally firm, even if peyote, a hallucinogenic drug, at a sacramental
less explicit, prohibition against the ceremony practiced by Native Americans for
 CONSTI LAW II ACJUCO FINALS 74

hundreds of years. The social service agency incompatible with our Nation’s fundamental
fired Smith and Black citing their use of peyote commitment to religious liberty." This portion of
as "job-related misconduct". They applied for her concurring opinion was supported by
unemployment compensation, but the Oregon Justices Brennan, Marshall and Blackmun who
Employment Appeals Board denied their dissented from the Court’s decision. Justice
application as they were discharged for job- O’Connor asserted that "(t)he compelling state
related misconduct. Justice Scalia, writing for interest test effectuates the First Amendment’s
the majority, ruled that "if prohibiting the exercise command that religious liberty is an independent
of religion . . . is . . . merely the incidental effect liberty, that it occupies a preferred position, and
of a generally applicable and otherwise valid that the Court will not permit encroachments
law, the First Amendment has not been upon this liberty, whether direct or indirect,
offended." In other words, the Free Exercise unless required by clear and compelling
Clause would be offended only if a particular government interest ‘of the highest order’."
religious practice were singled out for Justice Blackmun registered a separate
proscription. The majority opinion relied heavily dissenting opinion, joined by Justices Brennan
on the Reynolds case and in effect, equated and Marshall. He charged the majority with
Oregon’s drug prohibition law with the anti- "mischaracterizing" precedents and
polygamy statute in Reynolds. The relevant "overturning. . . settled law concerning the
portion of the majority opinion held, viz: Religion Clauses of our Constitution." He
pointed out that the Native American Church
We have never invalidated any governmental restricted and supervised the sacramental use of
action on the basis of the Sherbert test except peyote. Thus, the state had no significant health
the denial of unemployment compensation. or safety justification for regulating the
sacramental drug use. He also observed that
Even if we were inclined to breathe into Sherbert Oregon had not attempted to prosecute Smith or
some life beyond the unemployment Black, or any Native Americans, for that matter,
compensation field, we would not apply it to for the sacramental use of peyote. In conclusion,
require exemptions from a generally applicable he said that "Oregon’s interest in enforcing its
criminal law. . . drug laws against religious use of peyote (was)
not sufficiently compelling to outweigh
We conclude today that the sounder approach, respondents’ right to the free exercise of their
and the approach in accord with the vast majority religion."
of our precedents, is to hold the test inapplicable
to such challenges. The government’s ability to The Court went back to the Reynolds and
enforce generally applicable prohibitions of Gobitis doctrine in Smith. The Court’s standard
socially harmful conduct, like its ability to carry in Smith virtually eliminated the requirement that
out other aspects of public policy, "cannot the government justify with a compelling state
depend on measuring the effects of a interest the burdens on religious exercise
governmental action on a religious objector’s imposed by laws neutral toward religion. The
spiritual development." . . .To make an Smith doctrine is highly unsatisfactory in several
individual’s obligation to obey such a law respects and has been criticized as exhibiting a
contingent upon the law’s coincidence with his shallow understanding of free exercise
religious beliefs except where the State’s jurisprudence.185 First, the First amendment
interest is "compelling" - permitting him, by virtue was intended to protect minority religions from
of his beliefs, "to become a law unto himself," . . the tyranny of the religious and political majority.
. - contradicts both constitutional tradition and A deliberate regulatory interference with minority
common sense. religious freedom is the worst form of this
tyranny. But regulatory interference with a
Justice O’Connor wrote a concurring opinion minority religion as a result of ignorance or
pointing out that the majority’s rejection of the sensitivity of the religious and political majority is
compelling governmental interest test was the no less an interference with the minority’s
most controversial part of the decision. Although religious freedom. If the regulation had instead
she concurred in the result that the Free restricted the majority’s religious practice, the
Exercise Clause had not been offended, she majoritarian legislative process would in all
sharply criticized the majority opinion as a probability have modified or rejected the
dramatic departure "from well-settled First regulation. Thus, the imposition of the political
Amendment jurisprudence. . . and . . . (as) majority’s non-religious objectives at the
 CONSTI LAW II ACJUCO FINALS 75

expense of the minority’s religious interests grounds, a direct congressional challenge of

implements the majority’s religious viewpoint at final judicial authority on a question of
the expense of the minority’s. Second, constitutional interpretation.
government impairment of religious liberty would
most often be of the inadvertent kind as in Smith After Smith came Church of the Lukumi Babalu
considering the political culture where direct and Aye, Inc. v. City of Hialeah193 which was ruled
deliberate regulatory imposition of religious consistent with the Smith doctrine. This case
orthodoxy is nearly inconceivable. If the Free involved animal sacrifice of the Santeria, a blend
Exercise Clause could not afford protection to of Roman Catholicism and West African
inadvertent interference, it would be left almost religions brought to the Carribean by East
meaningless. Third, the Reynolds-Gobitis-Smith African slaves. An ordinance made it a crime to
doctrine simply defies common sense. The state "unnecessarily kill, torment, torture, or mutilate
should not be allowed to interfere with the most an animal in public or private ritual or ceremony
deeply held fundamental religious convictions of not for the primary purpose of food
an individual in order to pursue some trivial state consumption." The ordinance came as a
economic or bureaucratic objective. This is response to the local concern over the sacrificial
especially true when there are alternative practices of the Santeria. Justice Kennedy,
approaches for the state to effectively pursue its writing for the majority, carefully pointed out that
objective without serious inadvertent impact on the questioned ordinance was not a generally
religion.186 applicable criminal prohibition, but instead
singled out practitioners of the Santeria in that it
Thus, the Smith decision has been criticized not forbade animal slaughter only insofar as it took
only for increasing the power of the state over place within the context of religious rituals.
religion but as discriminating in favor of
mainstream religious groups against smaller, It may be seen from the foregoing cases that
more peripheral groups who lack legislative under the Free Exercise Clause, religious belief
clout,187 contrary to the original theory of the is absolutely protected, religious speech and
First Amendment.188 Undeniably, claims for proselytizing are highly protected but subject to
judicial exemption emanate almost invariably restraints applicable to non-religious speech,
from relatively politically powerless minority and unconventional religious practice receives
religions and Smith virtually wiped out their less protection; nevertheless conduct, even if its
judicial recourse for exemption.189 Thus, the violates a law, could be accorded protection as
Smith decision elicited much negative public shown in Wisconsin.194
reaction especially from the religious
community, and commentaries insisted that the B. Establishment Clause
Court was allowing the Free Exercise Clause to
disappear.190 So much was the uproar that a The Court’s first encounter with the
majority in Congress was convinced to enact the Establishment Clause was in the 1947 case of
Religious Freedom Restoration Act (RFRA) of Everson v. Board of Education.195 Prior cases
1993. The RFRA prohibited government at all had made passing reference to the
levels from substantially burdening a person’s Establishment Clause196 and raised
free exercise of religion, even if such burden establishment questions but were decided on
resulted from a generally applicable rule, unless other grounds.197 It was in the Everson case
the government could demonstrate a compelling that the U.S. Supreme Court adopted
state interest and the rule constituted the least Jefferson’s metaphor of "a wall of separation
restrictive means of furthering that interest.191 between church and state" as encapsulating the
RFRA, in effect, sought to overturn the meaning of the Establishment Clause. The often
substance of the Smith ruling and restore the and loosely used phrase "separation of church
status quo prior to Smith. Three years after the and state" does not appear in the U.S.
RFRA was enacted, however, the Court, dividing Constitution. It became part of U.S.
6 to 3, declared the RFRA unconstitutional in jurisprudence when the Court in the 1878 case
City of Boerne v. Flores.192 The Court ruled that of Reynolds v. United States198 quoted
"RFRA contradicts vital principles necessary to Jefferson’s famous letter of 1802 to the Danbury
maintain separation of powers and the federal Baptist Association in narrating the history of the
balance." It emphasized the primacy of its role religion clauses, viz:
as interpreter of the Constitution and
unequivocally rejected, on broad institutional
 CONSTI LAW II ACJUCO FINALS 76

Believing with you that religion is a matter which called, or whatever form they may adopt to teach
lies solely between man and his God; that he or practice religion. Neither a state nor the
owes account to none other for his faith or his Federal Government can, openly or secretly
worship; that the legislative powers of the participate in the affairs of any religious
Government reach actions only, and not organizations or groups and vice versa. In the
opinions, I contemplate with sovereign words of Jefferson, the clause against
reverence that act of the whole American people establishment of religion by law was intended to
which declared that their Legislature should erect "a wall of separation between Church and
‘make no law respecting an establishment of State."202
religion or prohibiting the free exercise thereof,’
thus building a wall of separation between The Court then ended the opinion, viz:
Church and State.199 (emphasis supplied)
The First Amendment has erected a wall
Chief Justice Waite, speaking for the majority, between church and state. That wall must be
then added, "(c)oming as this does from an kept high and impregnable. We could not
acknowledged leader of the advocates of the approve the slightest breach. New Jersey has
measure, it may be accepted almost as an not breached it here.203
authoritative declaration of the scope and effect
of the amendment thus secured."200 By 1971, the Court integrated the different
elements of the Court’s Establishment Clause
The interpretation of the Establishment Clause jurisprudence that evolved in the 1950s and
has in large part been in cases involving 1960s and laid down a three-pronged test in
education, notably state aid to private religious Lemon v. Kurtzman204 in determining the
schools and prayer in public schools.201 In constitutionality of policies challenged under the
Everson v. Board of Education, for example, the Establishment Clause. This case involved a
issue was whether a New Jersey local school Pennsylvania statutory program providing
board could reimburse parents for expenses publicly funded reimbursement for the cost of
incurred in transporting their children to and from teachers’ salaries, textbooks, and instructional
Catholic schools. The reimbursement was part materials in secular subjects and a Rhode Island
of a general program under which all parents of statute providing salary supplements to teachers
children in public schools and nonprofit private in parochial schools. The Lemon test requires a
schools, regardless of religion, were entitled to challenged policy to meet the following criteria to
reimbursement for transportation costs. Justice pass scrutiny under the Establishment Clause.
Hugo Black, writing for a sharply divided Court, "First, the statute must have a secular legislative
justified the reimbursements on the child benefit purpose; second, its primary or principal effect
theory, i.e., that the school board was merely must be one that neither advances nor inhibits
furthering the state’s legitimate interest in getting religion (Board of Education v. Allen, 392 US
children "regardless of their religion, safely and 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923
expeditiously to and from accredited schools." [1968]); finally, the statute must not foster ‘an
The Court, after narrating the history of the First excessive entanglement with religion.’ (Walz
Amendment in Virginia, interpreted the v.Tax Commission, 397 US 664, 668, 25 L Ed 2d
Establishment Clause, viz: 697, 701, 90 S Ct 1409 [1970])" (emphasis
supplied)205 Using this test, the Court held that
The ‘establishment of religion’ clause of the First the Pennsylvania statutory program and Rhode
Amendment means at least this: Neither a state Island statute were unconstitutional as fostering
nor the Federal Government can set up a excessive entanglement between government
church. Neither can pass laws which aid one and religion.
religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a The most controversial of the education cases
person to go to or remain away from church involving the Establishment Clause are the
against his will or force him to profess a belief or school prayer decisions. "Few decisions of the
disbelief in any religion. No person can be modern Supreme Court have been criticized
punished for entertaining or professing religious more intensely than the school prayer decisions
beliefs or disbeliefs, for church attendance or of the early 1960s."206 In the 1962 case of
non-attendance. No tax in any amount, large or Engel v. Vitale,207 the Court invalidated a New
small, can be levied to support any religious York Board of Regents policy that established
activities or institutions, whatever they may be the voluntary recitation of a brief generic prayer
 CONSTI LAW II ACJUCO FINALS 77

by children in the public schools at the start of public school students to observe a moment of
each school day. The majority opinion written by silence "for the purpose of meditation or
Justice Black stated that "in this country it is no voluntary prayer" at the start of each school day.
part of the business of government to compose
official prayers for any group of the American Religious instruction in public schools has also
people to recite as part of a religious program pressed the Court to interpret the Establishment
carried on by government." In fact, history shows Clause. Optional religious instruction within
that this very practice of establishing public school premises and instructional time
governmentally composed prayers for religious were declared offensive of the Establishment
services was one of the reasons that caused Clause in the 1948 case of McCollum v. Board
many of the early colonists to leave England and of Education,213 decided just a year after the
seek religious freedom in America. The Court seminal Everson case. In this case, interested
called to mind that the first and most immediate members of the Jewish, Roman Catholic and a
purpose of the Establishment Clause rested on few Protestant faiths obtained permission from
the belief that a union of government and religion the Board of Education to offer classes in
tends to destroy government and to degrade religious instruction to public school students in
religion. The following year, the Engel decision grades four to nine. Religion classes were
was reinforced in Abington School District v. attended by pupils whose parents signed printed
Schempp208 and Murray v. Curlett209 where cards requesting that their children be permitted
the Court struck down the practice of Bible to attend. The classes were taught in three
reading and the recitation of the Lord’s prayer in separate groups by Protestant teachers,
the Pennsylvania and Maryland schools. The Catholic priests and a Jewish rabbi and were
Court held that to withstand the strictures of the held weekly from thirty to forty minutes during
Establishment Clause, a statute must have a regular class hours in the regular classrooms of
secular legislative purpose and a primary effect the school building. The religious teachers were
that neither advances nor inhibits religion. It employed at no expense to the school
reiterated, viz: authorities but they were subject to the approval
and supervision of the superintendent of
The wholesome ‘neutrality’ of which this Court’s schools. Students who did not choose to take
cases speak thus stems from a recognition of the religious instruction were required to leave their
teachings of history that powerful sects or classrooms and go to some other place in the
groups might bring about a fusion of school building for their secular studies while
governmental and religious functions or a those who were released from their secular
concert or dependency of one upon the other to study for religious instruction were required to
the end that official support of the State of attend the religious classes. The Court held that
Federal Government would be placed behind the use of tax-supported property for religious
the tenets of one or of all orthodoxies. This the instruction and the close cooperation between
Establishment Clause prohibits. And a further the school authorities and the religious council in
reason for neutrality is found in the Free promoting religious education amounted to a
Exercise Clause, which recognizes the value of prohibited use of tax-established and tax-
religious training, teaching and observance and, supported public school system to aid religious
more particularly, the right of every person to groups spread their faith. The Court rejected the
freely choose his own course with reference claim that the Establishment Clause only
thereto, free of any compulsion from the prohibited government preference of one
state.210 religion over another and not an impartial
governmental assistance of all religions. In
The school prayer decisions drew furious Zorach v. Clauson,214 however, the Court
reactions. Religious leaders and conservative upheld released time programs allowing
members of Congress and resolutions passed students in public schools to leave campus upon
by several state legislatures condemned these parental permission to attend religious services
decisions.211 On several occasions, while other students attended study hall. Justice
constitutional amendments have been Douglas, the writer of the opinion, stressed that
introduced in Congress to overturn the school "(t)he First Amendment does not require that in
prayer decisions. Still, the Court has maintained every and all respects there shall be a
its position and has in fact reinforced it in the separation of Church and State." The Court
1985 case of Wallace v. Jaffree212 where the distinguished Zorach from McCollum, viz:
Court struck down an Alabama law that required
 CONSTI LAW II ACJUCO FINALS 78

In the McCollum case the classrooms were used Supreme Being." (Zorach c. Clauson, 343 US
for religious instruction and the force of the 306, 313 [1952])219 (emphasis supplied)
public school was used to promote that
instruction. . . We follow the McCollum case. But Some view the Marsh ruling as a mere
we cannot expand it to cover the present aberration as the Court would "inevitably be
released time program unless separation of embarrassed if it were to attempt to strike down
Church and State means that public institutions a practice that occurs in nearly every legislature
can make no adjustments of their schedules to in the United States, including the U.S.
accommodate the religious needs of the people. Congress."220 That Marsh was not an
We cannot read into the Bill of Rights such a aberration is suggested by subsequent cases. In
philosophy of hostility to religion.215 the 1984 case of Lynch v. Donnelly,221 the
Court upheld a city-sponsored nativity scene in
In the area of government displays or Rhode Island. By a 5-4 decision, the majority
affirmations of belief, the Court has given leeway opinion hardly employed the Lemon test and
to religious beliefs and practices which have again relied on history and the fact that the
acquired a secular meaning and have become creche had become a "neutral harbinger of the
deeply entrenched in history. For instance, in holiday season" for many, rather than a symbol
McGowan v. Maryland,216 the Court upheld of Christianity.
laws that prohibited certain businesses from
operating on Sunday despite the obvious The Establishment Clause has also been
religious underpinnings of the restrictions. Citing interpreted in the area of tax exemption. By
the secular purpose of the Sunday closing laws tradition, church and charitable institutions have
and treating as incidental the fact that this day of been exempt from local property taxes and their
rest happened to be the day of worship for most income exempt from federal and state income
Christians, the Court held, viz: taxes. In the 1970 case of Walz v. Tax
Commission,222 the New York City Tax
It is common knowledge that the first day of the Commission’s grant of property tax exemptions
week has come to have special significance as to churches as allowed by state law was
a rest day in this country. People of all religions challenged by Walz on the theory that this
and people with no religion regard Sunday as a required him to subsidize those churches
time for family activity, for visiting friends and indirectly. The Court upheld the law stressing its
relatives, for later sleeping, for passive and neutrality, viz:
active entertainments, for dining out, and the
like.217 It has not singled out one particular church or
religious group or even churches as such;
In the 1983 case of Marsh v. Chambers,218 the rather, it has granted exemptions to all houses
Court refused to invalidate Nebraska’s policy of of religious worship within a broad class of
beginning legislative sessions with prayers property owned by non-profit, quasi-public
offered by a Protestant chaplain retained at the corporations . . . The State has an affirmative
taxpayers’ expense. The majority opinion did not policy that considers these groups as beneficial
rely on the Lemon test and instead drew heavily and stabilizing influences in community life and
from history and the need for accommodation of finds this classification useful, desirable, and in
popular religious beliefs, viz: the public interest.223

In light of the unambiguous and unbroken history The Court added that the exemption was not
of more than 200 years, there can be no doubt establishing religion but "sparing the exercise of
that the practice of opening legislative sessions religion from the burden of property taxation
with prayer has become the fabric of our society. levied on private profit institutions"224 and
To invoke Divine guidance on a public body preventing excessive entanglement between
entrusted with making the laws is not, in these state and religion. At the same time, the Court
circumstances, an "establishment" of religion or acknowledged the long-standing practice of
a step toward establishment; it is simply a religious tax exemption and the Court’s
tolerable acknowledgement of beliefs widely traditional deference to legislative bodies with
held among the people of this country. As respect to the taxing power, viz:
Justice Douglas observed, "(w)e are a religious
people whose institutions presuppose a (f)ew concepts are more deeply embedded in
the fabric of our national life, beginning with pre-
 CONSTI LAW II ACJUCO FINALS 79

Revolutionary colonial times, than for the But the purpose of the overview is not to review
government to exercise . . . this kind of the entirety of the U.S. religion clause
benevolent neutrality toward churches and jurisprudence nor to extract the prevailing case
religious exercise generally so long as none was law regarding particular religious beliefs or
favored over others and none suffered conduct colliding with particular government
interference.225 (emphasis supplied) regulations. Rather, the cases discussed above
suffice to show that, as legal scholars observe,
C. Strict Neutrality v. Benevolent Neutrality this area of jurisprudence has demonstrated two
main standards used by the Court in deciding
To be sure, the cases discussed above, while religion clause cases: separation (in the form of
citing many landmark decisions in the religious strict separation or the tamer version of strict
clauses area, are but a small fraction of the neutrality or separation) and benevolent
hundreds of religion clauses cases that the U.S. neutrality or accommodation. The weight of
Supreme Court has passed upon. Court rulings current authority, judicial and in terms of sheer
contrary to or making nuances of the above volume, appears to lie with the separationists,
cases may be cited. Professor McConnell strict or tame.227 But the accommodationists
poignantly recognizes this, viz: have also attracted a number of influential
scholars and jurists.228 The two standards
Thus, as of today, it is constitutional for a state producing two streams of jurisprudence branch
to hire a Presbyterian minister to lead the out respectively from the history of the First
legislature in daily prayers (Marsh v. Chambers, Amendment in England and the American
463 US783, 792-93[1983]), but unconstitutional colonies and climaxing in Virginia as narrated in
for a state to set aside a moment of silence in this opinion and officially acknowledged by the
the schools for children to pray if they want to Court in Everson, and from American societal
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is life which reveres religion and practices age-old
unconstitutional for a state to require employers religious traditions. Stated otherwise, separation
to accommodate their employees’ work - strict or tame - protects the principle of church-
schedules to their sabbath observances (Estate state separation with a rigid reading of the
of Thornton v. Caldor, Inc., 472 US 703, 709-10 principle while benevolent neutrality protects
[1985]) but constitutionally mandatory for a state religious realities, tradition and established
to require employers to pay workers practice with a flexible reading of the
compensation when the resulting inconsistency principle.229 The latter also appeals to history in
between work and sabbath leads to discharge (. support of its position, viz:
. .Sherbert v. Verner, 374 US 398, 403-4 [1963]).
It is constitutional for the government to give The opposing school of thought argues that the
money to religiously-affiliated organizations to First Congress intended to allow government
teach adolescents about proper sexual behavior support of religion, at least as long as that
(Bowen v. Kendrick, 487 US 589, 611 [1988]), support did not discriminate in favor of one
but not to teach them science or history (Lemon particular religion. . . the Supreme Court has
v. Kurtzman, 403 US 602, 618-619 [1971]). It is overlooked many important pieces of history.
constitutional for the government to provide Madison, for example, was on the congressional
religious school pupils with books (Board of committee that appointed a chaplain, he
Education v. Allen, 392 US 236, 238 [1968]), but declared several national days of prayer and
not with maps (Wolman v. Walter, 433 US 229, fasting during his presidency, and he sponsored
249-51 [1977]); with bus rides to religious Jefferson’s bill for punishing Sabbath breakers;
schools (Everson v. Board of Education, 330 US moreover, while president, Jefferson allowed
1, 17 [1947]), but not from school to a museum federal support of religious missions to the
on a field trip (Wolman v. Walter, 433 US 229, Indians. . . And so, concludes one recent book,
252-55 [1977]); with cash to pay for state- ‘there is no support in the Congressional records
mandated standardized tests (Committee for that either the First Congress, which framed the
Pub. Educ. and Religious Liberty v. Regan, 444 First Amendment, or its principal author and
US 646, 653-54 [1980]), but not to pay for safety- sponsor, James Madison, intended that
related maintenance (Committee for Pub. Educ Amendment to create a state of complete
v. Nyquist, 413 US 756, 774-80 [1973]). It is a independence between religion and
mess.226 government. In fact, the evidence in the public
documents goes the other way.230 (emphasis
supplied)
 CONSTI LAW II ACJUCO FINALS 80

with religion.237 This approach erects an

To succinctly and poignantly illustrate the absolute barrier to formal interdependence of
historical basis of benevolent neutrality that religion and state. Religious institutions could
gives room for accommodation, less than not receive aid, whether direct or indirect, from
twenty-four hours after Congress adopted the the state. Nor could the state adjust its secular
First Amendment’s prohibition on laws programs to alleviate burdens the programs
respecting an establishment of religion, placed on believers.238 Only the complete
Congress decided to express its thanks to God separation of religion from politics would
Almighty for the many blessings enjoyed by the eliminate the formal influence of religious
nation with a resolution in favor of a presidential institutions and provide for a free choice among
proclamation declaring a national day of political views thus a strict "wall of separation" is
Thanksgiving and Prayer. Only two members of necessary.239 Strict separation faces
Congress opposed the resolution, one on the difficulties, however, as it is deeply embedded in
ground that the move was a "mimicking of history and contemporary practice that
European customs, where they made a mere enormous amounts of aid, both direct and
mockery of thanksgivings", the other on indirect, flow to religion from government in
establishment clause concerns. Nevertheless, return for huge amounts of mostly indirect aid
the salutary effect of thanksgivings throughout from religion. Thus, strict separationists are
Western history was acknowledged and the caught in an awkward position of claiming a
motion was passed without further recorded constitutional principle that has never existed
discussion.231 Thus, accommodationists also and is never likely to.240
go back to the framers to ascertain the meaning
of the First Amendment, but prefer to focus on A tamer version of the strict separationist view,
acts rather than words. Contrary to the claim of the strict neutrality or separationist view is
separationists that rationalism pervaded largely used by the Court, showing the Court’s
America in the late 19th century and that tendency to press relentlessly towards a more
America was less specifically Christian during secular society.241 It finds basis in the Everson
those years than at any other time before or case where the Court declared that Jefferson’s
since,232 accommodationaists claim that "wall of separation" encapsulated the meaning
American citizens at the time of the of the First Amendment but at the same time
Constitution’s origins were a remarkably held that the First Amendment "requires the
religious people in particularly Christian state to be neutral in its relations with groups of
terms.233 religious believers and non-believers; it does not
require the state to be their adversary. State
The two streams of jurisprudence - separationist power is no more to be used so as to handicap
or accommodationist - are anchored on a religions than it is to favor them." (emphasis
different reading of the "wall of separation." The supplied)242 While the strict neutrality approach
strict separtionist view holds that Jefferson is not hostile to religion, it is strict in holding that
meant the "wall of separation" to protect the religion may not be used as a basis for
state from the church. Jefferson was a man of classification for purposes of governmental
the Enlightenment Era of the eighteenth century, action, whether the action confers rights or
characterized by the rationalism and privileges or imposes duties or obligations. Only
anticlericalism of that philosophic bent.234 He secular criteria may be the basis of government
has often been regarded as espousing Deism or action. It does not permit, much less require,
the rationalistic belief in a natural religion and accommodation of secular programs to religious
natural law divorced from its medieval belief.243 Professor Kurland wrote, viz:
connection with divine law, and instead adhering
to a secular belief in a universal harmony.235 The thesis proposed here as the proper
Thus, according to this Jeffersonian view, the construction of the religion clauses of the first
Establishment Clause being meant to protect the amendment is that the freedom and separation
state from the church, the state’s hostility clauses should be read as a single precept that
towards religion allows no interaction between government cannot utilize religion as a standard
the two.236 In fact, when Jefferson became for action or inaction because these clauses
President, he refused to proclaim fast or prohibit classification in terms of religion either to
thanksgiving days on the ground that these are confer a benefit or to impose a burden.244
religious exercises and the Constitution
prohibited the government from intermeddling
 CONSTI LAW II ACJUCO FINALS 81

The Court has repeatedly declared that religious government and religion are growing and
freedom means government neutrality in expanding their spheres of involvement and
religious matters and the Court has also activity, resulting in the intersection of
repeatedly interpreted this policy of neutrality to government and religion at many points.250
prohibit government from acting except for
secular purposes and in ways that have primarily Consequently, the Court has also decided cases
secular effects.245 employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation
Prayer in public schools is an area where the is buttressed by a different view of the "wall of
Court has applied strict neutrality and refused to separation" associated with Williams, founder of
allow any form of prayer, spoken or silent, in the the Rhode Island colony. In Mark DeWolfe
public schools as in Engel and Schempp.246 Howe’s classic, The Garden and the Wilderness,
The McCollum case prohibiting optional religious he asserts that to the extent the Founders had a
instruction within public school premises during wall of separation in mind, it was unlike the
regular class hours also demonstrates strict Jeffersonian wall that is meant to protect the
neutrality. In these education cases, the Court state from the church; instead, the wall is meant
refused to uphold the government action as they to protect the church from the state,251 i.e., the
were based not on a secular but on a religious "garden" of the church must be walled in for its
purpose. Strict neutrality was also used in own protection from the "wilderness" of the
Reynolds and Smith which both held that if world252 with its potential for corrupting those
government acts in pursuit of a generally values so necessary to religious
applicable law with a secular purpose that commitment.253 Howe called this the
merely incidentally burdens religious exercise, "theological" or "evangelical" rationale for
the First Amendment has not been offended. church-state separation while the wall espoused
However, if the strict neutrality standard is by "enlightened" statesmen such as Jefferson
applied in interpreting the Establishment Clause, and Madison, was a "political" rationale seeking
it could de facto void religious expression in the to protect politics from intrusions by the
Free Exercise Clause. As pointed out by Justice church.254 But it has been asserted that this
Goldberg in his concurring opinion in Schempp, contrast between the Williams and Jeffersonian
strict neutrality could lead to "a brooding and positions is more accurately described as a
pervasive devotion to the secular and a passive, difference in kinds or styles of religious thinking,
or even active, hostility to the religious" which is not as a conflict between "religious" and "secular
prohibited by the Constitution.247 Professor (political)"; the religious style was biblical and
Laurence Tribe commented in his authoritative evangelical in character while the secular style
treatise, viz: was grounded in natural religion, more generic
and philosophical in its religious orientation.255
To most observers. . . strict neutrality has
seemed incompatible with the very idea of a free The Williams wall is, however, breached for the
exercise clause. The Framers, whatever specific church is in the state and so the remaining
applications they may have intended, clearly purpose of the wall is to safeguard religious
envisioned religion as something special; they liberty. Williams’ view would therefore allow for
enacted that vision into law by guaranteeing the interaction between church and state, but is
free exercise of religion but not, say, of strict with regard to state action which would
philosophy or science. The strict neutrality threaten the integrity of religious
approach all but erases this distinction. Thus it is commitment.256 His conception of separation is
not surprising that the Supreme Court has not total such that it provides basis for certain
rejected strict neutrality, permitting and interactions between church and state dictated
sometimes mandating religious by apparent necessity or practicality.257 This
classifications.248 "theological" view of separation is found in
Williams’ writings, viz:
The separationist approach, whether strict or
tame, is caught in a dilemma because while the . . . when they have opened a gap in the hedge
Jeffersonian wall of separation "captures the or wall of separation between the garden of the
spirit of the American ideal of church-state church and the wilderness of the world, God hath
separation", in real life church and state are not ever broke down the wall itself, removed the
and cannot be totally separate.249 This is all the candlestick, and made his garden a wilderness,
more true in contemporary times when both the as this day. And that therefore if He will eer
 CONSTI LAW II ACJUCO FINALS 82

please to restore His garden and paradise again, the schedule of public events, it follows the best
it must of necessity be walled in peculiarly unto of our traditions. For it then respects the religious
Himself from the world. . .258 nature of our people and accommodates the
public service to their spiritual needs. To hold
Chief Justice Burger spoke of benevolent that it may not would be to find in the Constitution
neutrality in Walz, viz: a requirement that the government show a
callous indifference to religious groups. . . But we
The general principle deducible from the First find no constitutional requirement which makes
Amendment and all that has been said by the it necessary for government to be hostile to
Court is this: that we will not tolerate either religion and to throw its weight against efforts to
governmentally established religion or widen their effective scope of religious
governmental interference with religion. Short of influence.261 (emphases supplied)
those expressly proscribed governmental acts
there is room for play in the joints productive of Benevolent neutrality is congruent with the
a benevolent neutrality which will permit sociological proposition that religion serves a
religious exercise to exist without sponsorship function essential to the survival of society itself,
and without interference.259 (emphasis thus there is no human society without one or
supplied) more ways of performing the essential function
of religion. Although for some individuals there
The Zorach case expressed the doctrine of may be no felt need for religion and thus it is
accommodation,260 viz: optional or even dispensable, for society it is not,
which is why there is no human society without
The First Amendment, however, does not say one or more ways of performing the essential
that in every and all respects there shall be a function of religion. Even in ostensibly atheistic
separation of Church and State. Rather, it societies, there are vigorous underground
studiously defines the manner, the specific religion(s) and surrogate religion(s) in their
ways, in which there shall be no concert or union ideology.262 As one sociologist wrote:
or dependency one or the other. That is the
common sense of the matter. Otherwise, the It is widely held by students of society that there
state and religion would be aliens to each other are certain functional prerequisites without
- hostile, suspicious, and even unfriendly. which society would not continue to exist. At first
Churches could not be required to pay even glance, this seems to be obvious - scarcely more
property taxes. Municipalities would not be than to say that an automobile could not exist,
permitted to render police or fire protection to as a going system, without a carburetor. . . Most
religious groups. Policemen who helped writers list religion among the functional
parishioners into their places of worship would prerequisites.263
violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the Another noted sociologist, Talcott Parsons,
messages of the Chief Executive; the wrote: "There is no known human society
proclamations making Thanksgiving Day a without something which modern social
holiday; "so help me God" in our courtroom scientists would classify as a religion…Religion
oaths- these and all other references to the is as much a human universal as language."264
Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the Benevolent neutrality thus recognizes that
First Amendment. A fastidious atheist or religion plays an important role in the public life
agnostic could even object to the supplication of the United States as shown by many
with which the Court opens each session: ‘God traditional government practices which, to strict
save the United States and this Honorable neutrality, pose Establishment Clause
Court. questions. Among these are the inscription of "In
God We Trust" on American currency, the
xxx xxx xxx recognition of America as "one nation under
God" in the official pledge of allegiance to the
We are a religious people whose institutions flag, the Supreme Court’s time-honored practice
presuppose a Supreme Being. We guarantee of opening oral argument with the invocation
the freedom to worship as one chooses. . . When "God save the United States and this honorable
the state encourages religious instruction or Court," and the practice of Congress and every
cooperates with religious authorities by adjusting state legislature of paying a chaplain, usually of
 CONSTI LAW II ACJUCO FINALS 83

a particular Protestant denomination to lead considerations, without regard to the religious

representatives in prayer.265 These practices consequences of its actions. The debate
clearly show the preference for one theological between accommodation and strict neutrality is
viewpoint -the existence of and potential for at base a question of means: "Is the freedom of
intervention by a god - over the contrary religion best achieved when the government is
theological viewpoint of atheism. Church and conscious of the effects of its action on the
government agencies also cooperate in the various religious practices of its people, and
building of low-cost housing and in other forms seeks to minimize interferences with those
of poor relief, in the treatment of alcoholism and practices? Or is it best advanced through a
drug addiction, in foreign aid and other policy of ‘religious blindness’ - keeping
government activities with strong moral government aloof from religious practices and
dimension.266 The persistence of these de facto issues?" An accommodationist holds that it is
establishments are in large part explained by the good public policy, and sometimes
fact that throughout history, the evangelical constitutionally required, for the state to make
theory of separation, i.e., Williams’ wall, has conscious and deliberate efforts to avoid
demanded respect for these de facto interference with religious freedom. On the other
establishments.267 But the separationists have hand, the strict neutrality adherent believes that
a different explanation. To characterize these as it is good public policy, and also constitutionally
de jure establishments according to the principle required, for the government to avoid religion-
of the Jeffersonian wall, the U.S. Supreme specific policy even at the cost of inhibiting
Court, the many dissenting and concurring religious exercise.271
opinions explain some of these practices as "‘de
minimis’ instances of government endorsement There are strong and compelling reasons,
or as historic governmental practices that have however, to take the accommodationist position
largely lost their religious significance or at least rather than the strict neutrality position. First, the
have proven not to lead the government into accommodationist interpretation is most
further involvement with religion.268 consistent with the language of the First
Amendment. The religion clauses contain two
With religion looked upon with benevolence and parallel provisions, both specifically directed at
not hostility, benevolent neutrality allows "religion." The government may not "establish"
accommodation of religion under certain religion and neither may government "prohibit" it.
circumstances. Accommodations are Taken together, the religion clauses can be read
government policies that take religion most plausibly as warding off two equal and
specifically into account not to promote the opposite threats to religious freedom -
government’s favored form of religion, but to government action that promotes the (political)
allow individuals and groups to exercise their majority’s favored brand of religion and
religion without hindrance. Their purpose or government action that impedes religious
effect therefore is to remove a burden on, or practices not favored by the majority. The
facilitate the exercise of, a person’s or substantive end in view is the preservation of the
institution’s religion. As Justice Brennan autonomy of religious life and not just the formal
explained, the "government [may] take religion process value of ensuring that government does
into account…to exempt, when possible, from not act on the basis of religious bias. On the
generally applicable governmental regulation other hand, strict neutrality interprets the religion
individuals whose religious beliefs and practices clauses as allowing government to do whatever
would otherwise thereby be infringed, or to it desires to or for religion, as long as it does the
create without state involvement an atmosphere same to or for comparable secular entities.
in which voluntary religious exercise may Thus, for example, if government prohibits all
flourish."269 (emphasis supplied) alcoholic consumption by minors, it can prohibit
Accommodation is forbearance and not alliance. minors from taking part in communion.
it does not reflect agreement with the minority, Paradoxically, this view would make the religion
but respect for the conflict between the temporal clauses violate the religion clauses, so to speak,
and spiritual authority in which the minority finds since the religion clauses single out religion by
itself.270 name for special protection. Second, the
accommodationist position best achieves the
Accommodation is distinguished from strict purposes of the First Amendment. The principle
neutrality in that the latter holds that government underlying the First Amendment is that freedom
should base public policy solely on secular to carry out one’s duties to a Supreme Being is
 CONSTI LAW II ACJUCO FINALS 84

an inalienable right, not one dependent on the accommodation, many otherwise beneficial laws
grace of legislature. Although inalienable, it is would interfere severely with religious freedom.
necessarily limited by the rights of others, Aside from laws against serving alcoholic
including the public right of peace and good beverages to minors conflicting with celebration
order. Nevertheless it is a substantive right and of communion, regulations requiring hard hats in
not merely a privilege against discriminatory construction areas can effectively exclude
legislation. The accomplishment of the purpose Amish and Sikhs from the workplace, or
of the First Amendment requires more than the employment anti-discrimination laws can conflict
"religion blindness" of strict neutrality. With the with the Roman Catholic male priesthood,
pervasiveness of government regulation, among others. Exemptions from such laws are
conflicts with religious practices become easy to craft and administer and contribute much
frequent and intense. Laws that are suitable for to promoting religious freedom at little cost to
secular entities are sometimes inappropriate for public policy. Without exemptions, legislature
religious entities, thus the government must would be frequently forced to choose between
make special provisions to preserve a degree of violating religious conscience of a segment of
independence for religious entities for them to the population or dispensing with legislation it
carry out their religious missions according to considers beneficial to society as a whole.
their religious beliefs. Otherwise, religion will Exemption seems manifestly more reasonable
become just like other secular entities subject to than either of the alternative: no exemption or no
pervasive regulation by majoritarian institutions. law.272
Third, the accommodationist interpretation is
particularly necessary to protect adherents of Benevolent neutrality gives room for different
minority religions from the inevitable effects of kinds of accommodation: those which are
majoritarianism, which include ignorance and constitutionally compelled, i.e., required by the
indifference and overt hostility to the minority. In Free Exercise Clause; and those which are
a democratic republic, laws are inevitably based discretionary or legislative, i.e., and those not
on the presuppositions of the majority, thus not required by the Free Exercise Clause but
infrequently, they come into conflict with the nonetheless permitted by the Establishment
religious scruples of those holding different Clause.273 Some Justices of the Supreme
world views, even in the absence of a deliberate Court have also used the term accommodation
intent to interfere with religious practice. At to describe government actions that
times, this effect is unavoidable as a practical acknowledge or express prevailing religious
matter because some laws are so necessary to sentiments of the community such as display of
the common good that exceptions are a religious symbol on public property or the
intolerable. But in other instances, the injury to delivery of a prayer at public ceremonial
religious conscience is so great and the events.274 Stated otherwise, using benevolent
advancement of public purposes so small or neutrality as a standard could result to three
incomparable that only indifference or hostility situations of accommodation: those where
could explain a refusal to make exemptions. accommodation is required, those where it is
Because of plural traditions, legislators and permissible, and those where it is prohibited. In
executive officials are frequently willing to make the first situation, accommodation is required to
such exemptions when the need is brought to preserve free exercise protections and not
their attention, but this may not always be the unconstitutionally infringe on religious liberty or
case when the religious practice is either create penalties for religious freedom. Contrary
unknown at the time of enactment or is for some to the Smith declaration that free exercise
reason unpopular. In these cases, a exemptions are "intentional government
constitutional interpretation that allows advancement", these exemptions merely relieve
accommodations prevents needless injury to the the prohibition on the free exercise thus allowing
religious consciences of those who can have an the burdened religious adherent to be left alone.
influence in the legislature; while a constitutional The state must create exceptions to laws of
interpretation that requires accommodations general applicability when these laws threaten
extends this treatment to religious faiths that are religious convictions or practices in the absence
less able to protect themselves in the political of a compelling state interest.275 By allowing
arena. Fourth, the accommodationist position is such exemptions, the Free Exercise Clause
practical as it is a commonsensical way to deal does not give believers the right or privilege to
with the various needs and beliefs of different choose for themselves to override socially-
faiths in a pluralistic nation. Without prescribed decision; it allows them to obey
 CONSTI LAW II ACJUCO FINALS 85

spiritual rather than temporal authority276 for have an interest in encouraging religious values
those who seriously invoke the Free Exercise and avoiding threats to those values through the
Clause claim to be fulfilling a solemn duty. burden of property taxes. Other examples are
Religious freedom is a matter less of rights than the Zorach case allowing released time in public
duties; more precisely, it is a matter of rights schools and Marsh allowing payment of
derived from duties. To deny a person or a legislative chaplains from public funds. Finally, in
community the right to act upon such a duty can the situation where accommodation is
be justified only by appeal to a yet more prohibited, establishment concerns prevail over
compelling duty. Of course, those denied will potential accommodation interests. To say that
usually not find the reason for the denial there are valid exemptions buttressed by the
compelling. "Because they may turn out to be Free Exercise Clause does not mean that all
right about the duty in question, and because, claims for free exercise exemptions are
even if they are wrong, religion bears witness to valid.282 An example where accommodation
that which transcends the political order, such was prohibited is McCollum where the Court
denials should be rare and painfully ruled against optional religious instruction in the
reluctant."277 public school premises.283 In effect, the last
situation would arrive at a strict neutrality
The Yoder case is an example where the Court conclusion.
held that the state must accommodate the
religious beliefs of the Amish who objected to In the first situation where accommodation is
enrolling their children in high school as required required, the approach follows this basic
by law. The Sherbert case is another example framework:
where the Court held that the state
unemployment compensation plan must If the plaintiff can show that a law or government
accommodate the religious convictions of practice inhibits the free exercise of his religious
Sherbert.278 In these cases of "burdensome beliefs, the burden shifts to the government to
effect", the modern approach of the Court has demonstrate that the law or practice is
been to apply strict scrutiny, i.e., to declare the necessary to the accomplishment of some
burden as permissible, the Court requires the important (or ‘compelling’) secular objective and
state to demonstrate that the regulation which that it is the least restrictive means of achieving
burdens the religious exercise pursues a that objective. If the plaintiff meets this burden
particularly important or compelling government and the government does not, the plaintiff is
goal through the least restrictive means. If the entitled to exemption from the law or practice at
state’s objective could be served as well or issue. In order to be protected, the claimant’s
almost as well by granting an exemption to those beliefs must be ‘sincere’, but they need not
whose religious beliefs are burdened by the necessarily be consistent, coherent, clearly
regulation, such an exemption must be articulated, or congruent with those of the
given.279 This approach of the Court on claimant’s religious denomination. ‘Only beliefs
"burdensome effect" was only applied since the rooted in religion are protected by the Free
1960s. Prior to this time, the Court took the Exercise Clause’; secular beliefs, however
separationist view that as long as the state was sincere and conscientious, do not suffice.284
acting in pursuit of non-religious ends and
regulating conduct rather than pure religious In other words, a three-step process (also
beliefs, the Free Exercise Clause did not pose a referred to as the "two-step balancing process"
hindrance such as in Reynolds.280 In the supra when the second and third steps are
second situation where accommodation is combined) as in Sherbert is followed in weighing
permissible, the state may, but is not required to, the state’s interest and religious freedom when
accommodate religious interests. The Walz case these collide. Three questions are answered in
illustrates this situation where the Court upheld this process. First, "(h)as the statute or
the constitutionality of tax exemption given by government action created a burden on the free
New York to church properties, but did not rule exercise of religion?" The courts often look into
that the state was required to provide tax the sincerity of the religious belief, but without
exemptions. The Court declared that "(t)he limits inquiring into the truth of the belief because the
of permissible state accommodation to religion Free Exercise Clause prohibits inquiring about
are by no means co-extensive with the its truth as held in Ballard and Cantwell. The
noninterference mandated by the Free Exercise sincerity of the claimant’s belief is ascertained to
Clause."281 The Court held that New York could avoid the mere claim of religious beliefs to
 CONSTI LAW II ACJUCO FINALS 86

escape a mandatory regulation. As evidence of it must precisely show how and to what extent
sincerity, the U.S. Supreme Court has those objectives will be undermined if
considered historical evidence as in Wisconsin exemptions are granted.289 The person
where the Amish people had held a long- claiming religious freedom, on the other hand,
standing objection to enrolling their children in will endeavor to show that the interest is not
ninth and tenth grades in public high schools. In legitimate or that the purpose, although
another case, Dobkin v. District of Columbia,285 legitimate, is not compelling compared to
the Court denied the claim of a party who infringement of religious liberty. This step
refused to appear in court on Saturday alleging involves balancing, i.e., weighing the interest of
he was a Sabbatarian, but the Court noted that the state against religious liberty to determine
he regularly conducted business on Saturday. which is more compelling under the particular
Although it is true that the Court might set of facts. The greater the state’s interests, the
erroneously deny some claims because of a more central the religious belief would have to
misjudgment of sincerity, this is not as argument be to overcome it. In assessing the state interest,
to reject all claims by not allowing the court will have to determine the importance
accommodation as a rule. There might be injury of the secular interest and the extent to which
to the particular claimant or to his religious that interest will be impaired by an exemption for
community, but for the most part, the injustice is the religious practice. Should the court find the
done only in the particular case.286 Aside from interest truly compelling, there will be no
the sincerity, the court may look into the requirement that the state diminish the
centrality of those beliefs, assessing them not on effectiveness of its regulation by granting the
an objective basis but in terms of the opinion and exemption.290
belief of the person seeking exemption. In
Wisconsin, for example, the Court noted that the Third, the court asks: "(h)as the state in
Amish people’s convictions against becoming achieving its legitimate purposes used the least
involved in public high schools were central to intrusive means possible so that the free
their way of life and faith. Similarly, in Sherbert, exercise is not infringed any more than
the Court concluded that the prohibition against necessary to achieve the legitimate goal of the
Saturday work was a "cardinal principle."287 state?"291 The analysis requires the state to
Professor Lupu puts to task the person claiming show that the means in which it is achieving its
exemption, viz: legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its
On the claimant’s side, the meaning and legitimate state end that imposes as little as
significance of the relevant religious practice possible on religious liberties. In Cantwell, for
must be demonstrated. Religious command example, the Court invalidated the license
should outweigh custom, individual conscience requirement for the door-to-door solicitation as it
should count for more than personal was a forbidden burden on religious liberty,
convenience, and theological principle should be noting that less drastic means of insuring peace
of greater significance than institutional ease. and tranquility existed. As a whole, in carrying
Sincerity matters, (footnote omitted) and out the compelling state interest test, the Court
longevity of practice - both by the individual and should give careful attention to context, both
within the individual’s religious tradition - religious and regulatory, to achieve refined
reinforces sincerity. Most importantly, the law of judgment.292
free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern, In sum, as shown by U.S. jurisprudence on
Western, aboriginal and otherwise - as religion clause cases, the competing values of
constitutionally equal to their Christian secular government and religious freedom
counterparts, and accepting of the intensity and create tensions that make constitutional law on
scope of fundamentalist creed.288 the subject of religious liberty unsettled,
mirroring the evolving views of a dynamic
Second, the court asks: "(i)s there a sufficiently society.293
compelling state interest to justify this
infringement of religious liberty?" In this step, the VII. Religion Clauses in the Philippines
government has to establish that its purposes
are legitimate for the state and that they are A. History
compelling. Government must do more than
assert the objectives at risk if exemption is given;
 CONSTI LAW II ACJUCO FINALS 87

Before our country fell under American rule, the minister of religion shall be forced upon the
blanket of Catholicism covered the archipelago. community or upon any citizen of the Islands,
There was a union of church and state and that, on the other hand, no minister of religion
Catholicism was the state religion under the shall be interfered with or molested in following
Spanish Constitution of 1876. Civil authorities his calling.299
exercised religious functions and the friars
exercised civil powers.294 Catholics alone This provision was based on the First
enjoyed the right of engaging in public Amendment of the United States Constitution.
ceremonies of worship.295 Although the Likewise, the Instructions declared that "(t)he
Spanish Constitution itself was not extended to separation between State and Church shall be
the Philippines, Catholicism was also the real, entire and absolute."300
established church in our country under the
Spanish rule. Catholicism was in fact protected Thereafter, every organic act of the Philippines
by the Spanish Penal Code of 1884 which was contained a provision on freedom of religion.
in effect in the Philippines. Some of the offenses Similar to the religious freedom clause in the
in chapter six of the Penal Code entitled "Crimes Instructions, the Philippine Bill of 1902 provided
against Religion and Worship" referred to crimes that:
against the state religion.296 The coming of the
Americans to our country, however, changed No law shall be made respecting an
this state-church scheme for with the advent of establishment of religion or prohibiting the free
this regime, the unique American experiment of exercise thereof, and that free exercise and
"separation of church and state" was transported enjoyment of religious worship, without
to Philippine soil. discrimination or preference, shall forever be
allowed.
Even as early as the conclusion of the Treaty of
Paris between the United States and Spain on In U.S. v. Balcorta,301 the Court stated that the
December 10, 1898, the American guarantee of Philippine Bill of 1902 "caused the complete
religious freedom had been extended to the separation of church and state, and the abolition
Philippines. The Treaty provided that "the of all special privileges and all restrictions
inhabitants of the territories over which Spain theretofor conferred or imposed upon any
relinquishes or cedes her sovereignty shall be particular religious sect."302
secured in the free exercise of religion."297
Even the Filipinos themselves guaranteed The Jones Law of 1916 carried the same
religious freedom a month later or on January provision, but expanded it with a restriction
22, 1899 upon the adoption of the Malolos against using public money or property for
Constitution of the Philippine Republic under religious purposes, viz:
General Emilio Aguinaldo. It provided that "the
State recognizes the liberty and equality of all That no law shall be made respecting an
religion (de todos los cultos) in the same manner establishment of religion or prohibiting the free
as the separation of the Church and State." But exercise thereof, and that the free exercise and
the Malolos Constitution and government was enjoyment of religious profession and worship
short-lived as the Americans took over the without discrimination or preference, shall
reigns of government.298 forever be allowed; and no religious test shall be
required for the exercise of civil or political rights.
With the Philippines under the American regime, No public money or property shall ever be
President McKinley issued Instructions to the appropriated, applied, donated, or used, directly
Second Philippine Commission, the body or indirectly, for the use, benefit, or support of
created to take over the civil government in the any sect, church, denomination, sectarian
Philippines in 1900. The Instructions guaranteed institution, or system of religion, or for the use,
religious freedom, viz: benefit or support of any priest, preacher,
minister, or other religious teachers or dignitary
That no law shall be made respecting the as such.
establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and This was followed by the Philippine
enjoyment of religious profession and worship Independence Law or Tydings-McDuffie Law of
without discrimination or preference shall forever 1934 which guaranteed independence to the
be allowed ... that no form of religion and no Philippines and authorized the drafting of a
 CONSTI LAW II ACJUCO FINALS 88

Philippine constitution. It enjoined Filipinos to forever be allowed. No religious test shall be

include freedom of religion in drafting their required for the exercise of civil or political rights.
constitution preparatory to the grant of
independence. The law prescribed that This time, however, the General Provisions in
"(a)bsolute toleration of religious sentiment shall Article XV added in Section 15 that "(t)he
be secured and no inhabitant or religious separation of church and state shall be
organization shall be molested in person or inviolable."
property on account of religious belief or mode
of worship."303 Without discussion by the 1986 Constitutional
Commission, the 1973 religious clauses were
The Constitutional Convention then began reproduced in the 1987 Constitution under the
working on the 1935 Constitution. In their Bill of Rights in Article III, Section 5.307
proceedings, Delegate Jose P. Laurel as Likewise, the provision on separation of church
Chairman of the Committee on Bill of Rights and state was included verbatim in the 1987
acknowledged that "(i)t was the Treaty of Paris Constitution, but this time as a principle in
of December 10, 1898, which first introduced Section 6, Article II entitled Declaration of
religious toleration in our country. President Principles and State Policies.
McKinley’s Instructions to the Second Philippine
Commission reasserted this right which later Considering the American origin of the
was incorporated into the Philippine Bill of 1902 Philippine religion clauses and the intent to
and in the Jones Law."304 In accordance with adopt the historical background, nature, extent
the Tydings-McDuffie Law, the 1935 and limitations of the First Amendment of the
Constitution provided in the Bill of Rights, Article U.S. Constitution when it was included in the
IV, Section 7, viz: 1935 Bill of Rights, it is not surprising that nearly
all the major Philippine cases involving the
Sec. 7. No law shall be made respecting an religion clauses turn to U.S. jurisprudence in
establishment of religion, or prohibiting the free explaining the nature, extent and limitations of
exercise thereof, and the free exercise and these clauses. However, a close scrutiny of
enjoyment of religious profession and worship, these cases would also reveal that while U.S.
without discrimination or preference, shall jurisprudence on religion clauses flows into two
forever be allowed. No religious test shall be main streams of interpretation - separation and
required for the exercise of civil or political rights. benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the
This provision, borrowed from the Jones Law, most part, benevolent neutrality which gives
was readily approved by the Convention.305 In room for accommodation.
his speech as Chairman of the Committee on Bill
of Rights, Delegate Laurel said that B. Jurisprudence
modifications in phraseology of the Bill of Rights
in the Jones Law were avoided whenever In revisiting the landscape of Philippine
possible because "the principles must remain jurisprudence on the religion clauses, we begin
couched in a language expressive of their with the definition of "religion". "Religion" is
historical background, nature, extent and derived from the Middle English religioun, from
limitations as construed and interpreted by the Old French religion, from Latin religio, vaguely
great statesmen and jurists that vitalized referring to a "bond between man and the
them."306 gods."308 This pre-Christian term for the cult
and rituals of pagan Rome was first
The 1973 Constitution which superseded the Christianized in the Latin translation of the
1935 Constitution contained an almost identical Bible.309 While the U.S. Supreme Court has
provision on religious freedom in the Bill of had to take up the challenge of defining the
Rights in Article IV, Section 8, viz: parameters and contours of "religion" to
determine whether a non-theistic belief or act is
Sec. 8. No law shall be made respecting an covered by the religion clauses, this Court has
establishment of religion, or prohibiting the free not been confronted with the same issue. In
exercise thereof. The free exercise and Philippine jurisprudence, religion, for purposes
enjoyment of religious profession and worship, of the religion clauses, has thus far been
without discrimination or preference, shall interpreted as theistic. In 1937, the Philippine
case of Aglipay v. Ruiz310 involving the
 CONSTI LAW II ACJUCO FINALS 89

Establishment Clause, defined "religion" as a as ordinarily required of those engaged in the

"profession of faith to an active power that binds business of general merchandise under the
and elevates man to his Creator." Twenty years city’s ordinances. Plaintiff argued that this
later, the Court cited the Aglipay definition in amounted to "religious censorship and
American Bible Society v. City of Manila,311 a restrained the free exercise and enjoyment of
case involving the Free Exercise clause. The religious profession, to wit: the distribution and
latter also cited the American case of Davis in sale of bibles and other religious literature to the
defining religion, viz: "(i)t has reference to one’s people of the Philippines."
views of his relations to His Creator and to the
obligations they impose of reverence to His After defining religion, the Court, citing Tanada
being and character and obedience to His Will." and Fernando, made this statement, viz:
The Beason definition, however, has been
expanded in U.S. jurisprudence to include non- The constitutional guaranty of the free exercise
theistic beliefs. and enjoyment of religious profession and
worship carries with it the right to disseminate
1. Free Exercise Clause religious information. Any restraint of such right
can only be justified like other restraints of
Freedom of choice guarantees the liberty of the freedom of expression on the grounds that there
religious conscience and prohibits any degree of is a clear and present danger of any substantive
compulsion or burden, whether direct or indirect, evil which the State has the right to prevent.
in the practice of one’s religion. The Free (Tanada and Fernando on the Constitution of the
Exercise Clause principally guarantees Philippines, vol. 1, 4th ed., p. 297) (emphasis
voluntarism, although the Establishment Clause supplied)
also assures voluntarism by placing the burden
of the advancement of religious groups on their This was the Court’s maiden unequivocal
intrinsic merits and not on the support of the affirmation of the "clear and present danger" rule
state.312 in the religious freedom area, and in Philippine
jurisprudence, for that matter.315 The case did
In interpreting the Free Exercise Clause, the not clearly show, however, whether the Court
realm of belief poses no difficulty. The early case proceeded to apply the test to the facts and
of Gerona v. Secretary of Education313 is issues of the case, i.e., it did not identify the
instructive on the matter, viz: secular value the government regulation sought
to protect, whether the religious speech posed a
The realm of belief and creed is infinite and clear and present danger to this or other secular
limitless bounded only by one’s imagination and value protected by government, or whether there
thought. So is the freedom of belief, including was danger but it could not be characterized as
religious belief, limitless and without bounds. clear and present. It is one thing to apply the test
One may believe in most anything, however and find that there is no clear and present
strange, bizarre and unreasonable the same danger, and quite another not to apply the test
may appear to others, even heretical when altogether.
weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief Instead, the Court categorically held that the
and the exercise of said belief, there is quite a questioned ordinances were not applicable to
stretch of road to travel.314 plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for
The difficulty in interpretation sets in when belief profit. To add, the Court, citing Murdock v.
is externalized into speech and action. Pennsylvania,316 ruled that applying the
ordinance requiring it to secure a license and
Religious speech comes within the pale of the pay a license fee or tax would impair its free
Free Exercise Clause as illustrated in the exercise of religious profession and worship and
American Bible Society case. In that case, its right of dissemination of religious beliefs "as
plaintiff American Bible Society was a foreign, the power to tax the exercise of a privilege is the
non-stock, non-profit, religious missionary power to control or suppress its enjoyment."
corporation which sold bibles and gospel Thus, in American Bible Society, the "clear and
portions of the bible in the course of its ministry. present danger" rule was laid down but it was not
The defendant City of Manila required plaintiff to clearly applied.
secure a mayor’s permit and a municipal license
 CONSTI LAW II ACJUCO FINALS 90

In the much later case of Tolentino v. Secretary

of Finance,317 also involving the sale of The Court then proceeded to determine if the
religious books, the Court distinguished the acts involved constituted a religious ceremony in
American Bible Society case from the facts and conflict with the beliefs of the petitioners with the
issues in Tolentino and did not apply the following justification:
American Bible Society ruling. In Tolentino, the
Philippine Bible Society challenged the validity After all, the determination of whether a certain
of the registration provisions of the Value Added ritual is or is not a religious ceremony must rest
Tax (VAT) Law as a prior restraint. The Court with the courts. It cannot be left to a religious
held, however, that the fixed amount of group or sect, much less to a follower of said
registration fee was not imposed for the exercise group or sect; otherwise, there would be
of a privilege like a license tax which American confusion and misunderstanding for there might
Bible Society ruled was violative of religious be as many interpretations and meaning to be
freedom. Rather, the registration fee was merely given to a certain ritual or ceremony as there are
an administrative fee to defray part of the cost of religious groups or sects or followers, all
registration which was a central feature of the depending upon the meaning which they, though
VAT system. Citing Jimmy Swaggart Ministries in all sincerity and good faith, may want to give
v. Board of Equalization,318 the Court also to such ritual or ceremony.321
declared prefatorily that "the Free Exercise of
Religion Clause does not prohibit imposing a It was held that the flag was not an image, the
generally applicable sales and use tax on the flag salute was not a religious ceremony, and
sale of religious materials by a religious there was nothing objectionable about the
organization." In the Court’s resolution of the singing of the national anthem as it speaks only
motion for reconsideration of the Tolentino of love of country, patriotism, liberty and the
decision, the Court noted that the burden on glory of suffering and dying for it. The Court
religious freedom caused by the tax was just upheld the questioned Order and the expulsion
similar to any other economic imposition that of petitioner’s children, stressing that:
might make the right to disseminate religious
doctrines costly. Men may differ and do differ on religious beliefs
and creeds, government policies, the wisdom
Two years after American Bible Society came and legality of laws, even the correctness of
the 1959 case of Gerona v. Secretary of judicial decisions and decrees; but in the field of
Education,319 this time involving conduct love of country, reverence for the flag, national
expressive of religious belief colliding with a rule unity and patriotism, they can hardly afford to
prescribed in accordance with law. In this case, differ, for these are matters in which they are
petitioners were members of the Jehovah’s mutually and vitally interested, for to them, they
Witnesses. They challenged a Department mean national existence and survival as a nation
Order issued by the Secretary of Education or national extinction.322
implementing Republic Act No. 1265 which
prescribed compulsory flag ceremonies in all In support of its ruling, the Court cited Justice
public schools. In violation of the Order, Frankfurter’s dissent in the Barnette case, viz:
petitioner’s children refused to salute the
Philippine flag, sing the national anthem, or The constitutional protection of religious
recite the patriotic pledge, hence they were freedom x x x gave religious equality, not civil
expelled from school. Seeking protection under immunity. Its essence is freedom from
the Free Exercise Clause, petitioners claimed conformity to religious dogma, not freedom from
that their refusal was on account of their religious conformity to law because of religious
belief that the Philippine flag is an image and dogma.323
saluting the same is contrary to their religious
belief. The Court stated, viz: It stated in categorical terms, viz:

. . . If the exercise of religious belief clashes with The freedom of religious belief guaranteed by
the established institutions of society and with the Constitution does not and cannot mean
the law, then the former must yield to the latter. exemption from or non-compliance with
The Government steps in and either restrains reasonable and non-discriminatory laws, rules
said exercise or even prosecutes the one and regulations promulgated by competent
exercising it. (emphasis supplied)320 authority.324
 CONSTI LAW II ACJUCO FINALS 91

infringement of religious freedom may be

Thus, the religious freedom doctrines one can justified, and only to the smallest extent
derive from Gerona are: (1) it is incumbent upon necessary.327 (emphasis supplied)
the Court to determine whether a certain ritual is
religious or not; (2) religious freedom will not be As regards the Establishment Clause issue, the
upheld if it clashes with the established Court after citing the constitutional provision on
institutions of society and with the law such that establishment and free exercise of religion,
when a law of general applicability (in this case declared, viz:
the Department Order) incidentally burdens the
exercise of one’s religion, one’s right to religious The constitutional provisions not only prohibits
freedom cannot justify exemption from legislation for the support of any religious tenets
compliance with the law. The Gerona ruling was or the modes of worship of any sect, thus
reiterated in Balbuna, et al. v. Secretary of forestalling compulsion by law of the acceptance
Education, et al.325 of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed.
Fifteen years after Gerona came the 1974 case 1148, 1153), but also assures the free exercise
of Victoriano v. Elizalde Rope Workers of one’s chosen form of religion within limits of
Union.326 In this unanimously decided en banc utmost amplitude. It has been said that the
case, Victoriano was a member of the Iglesia ni religion clauses of the Constitution are all
Cristo which prohibits the affiliation of its designed to protect the broadest possible liberty
members with any labor organization. He of conscience, to allow each man to believe as
worked in the Elizalde Rope Factory, Inc. and his conscience directs, to profess his beliefs,
was a member of the Elizalde Rope Workers and to live as he believes he ought to live,
Union which had with the company a closed consistent with the liberty of others and with the
shop provision pursuant to Republic Act No. 875 common good. (footnote omitted). Any
allowing closed shop arrangements. legislation whose effect or purpose is to impede
Subsequently, Republic Act No. 3350 was the observance of one or all religions, or to
enacted exempting from the application and discriminate invidiously between the religions, is
coverage of a closed shop agreement invalid, even though the burden may be
employees belonging to any religious sect which characterized as being only indirect. (Sherbert v.
prohibits affiliation of their members with any Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
labor organization. Victoriano resigned from the 1970) But if the state regulates conduct by
union after Republic Act No. 3350 took effect. enacting, within its power, a general law which
The union notified the company of Victoriano’s has for its purpose and effect to advance the
resignation, which in turn notified Victoriano that state’s secular goals, the statute is valid despite
unless he could make a satisfactory its indirect burden on religious observance,
arrangement with the union, the company would unless the state can accomplish its purpose
be constrained to dismiss him from the service. without imposing such burden. (Braunfeld v.
Victoriano sought to enjoin the company and the Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct.
union from dismissing him. The court having 144; McGowan v. Maryland, 366 U.S. 420, 444-
granted the injunction, the union came to this 5 and 449)328 (emphasis supplied)
Court on questions of law, among which was
whether Republic Act No. 3350 was Quoting Aglipay v. Ruiz,329 the Court held that
unconstitutional for impairing the obligation of "government is not precluded from pursuing
contracts and for granting an exemption valid objectives secular in character even if the
offensive of the Establishment Clause. With incidental result would be favorable to a religion
respect to the first issue, the Court ruled, viz: or sect." It also cited Board of Education v.
Allen,330 which held that in order to withstand
Religious freedom, although not unlimited, is a the strictures of constitutional prohibition, a
fundamental personal right and liberty statute must have a secular legislative purpose
(Schneider v. Irgington, 308 U.S. 147, 161, 84 and a primary effect that neither advances nor
L.ed.155, 164, 60 S.Ct. 146) and has a preferred inhibits religion. Using these criteria in upholding
position in the hierarchy of values. Contractual Republic Act No. 3350, the Court pointed out,
rights, therefore, must yield to freedom of viz:
religion. It is only where unavoidably necessary
to prevent an immediate and grave danger to the (Republic Act No. 3350) was intended to serve
security and welfare of the community that the secular purpose of advancing the
 CONSTI LAW II ACJUCO FINALS 92

constitutional right to the free exercise of highlighting the importance of the protection of
religion, by averting that certain persons be religious freedom as the secular purpose of
refused work, or be dismissed from work, or be Republic Act No. 3350. Upholding religious
dispossessed of their right to work and of being freedom was a secular purpose insofar as it
impeded to pursue a modest means of relieved the burden on religious freedom caused
livelihood, by reason of union security by another law, i.e, the Industrial Peace Act
agreements. . . . The primary effects of the providing for union shop agreements. The first
exemption from closed shop agreements in two tests were only mentioned in Victoriano but
favor of members of religious sects that prohibit were not applied by the Court to the facts and
their members from affiliating with a labor issues of the case. The third, the "compelling
organization, is the protection of said employees state interest" test was employed by the Court to
against the aggregate force of the collective determine whether the exemption provided by
bargaining agreement, and relieving certain Republic Act No. 3350 was not unconstitutional.
citizens of a burden on their religious beliefs, and It upheld the exemption, stating that there was
. . . eliminating to a certain extent economic no "compelling state interest" to strike it down.
insecurity due to unemployment.331 However, after careful consideration of the
Sherbert case from which Victoriano borrowed
The Court stressed that "(a)lthough the this test, the inevitable conclusion is that the
exemption may benefit those who are members "compelling state interest" test was not
of religious sects that prohibit their members appropriate and could not find application in the
from joining labor unions, the benefit upon the Victoriano case. In Sherbert, appellant Sherbert
religious sects is merely incidental and invoked religious freedom in seeking exemption
indirect."332 In enacting Republic Act No. 3350, from the provisions of the South Carolina
Congress merely relieved the exercise of Unemployment Compensation Act which
religion by certain persons of a burden imposed disqualified her from claiming unemployment
by union security agreements which Congress benefits. It was the appellees, members of the
itself also imposed through the Industrial Peace South Carolina Employment Commission, a
Act. The Court concluded the issue of exemption government agency, who propounded the state
by citing Sherbert which laid down the rule that interest to justify overriding Sherbert’s claim of
when general laws conflict with scruples of religious freedom. The U.S. Supreme Court,
conscience, exemptions ought to be granted considering Sherbert’s and the Commission’s
unless some "compelling state interest" arguments, found that the state interest was not
intervenes. The Court then abruptly added that sufficiently compelling to prevail over Sherbert’s
"(i)n the instant case, We see no compelling free exercise claim. This situation did not obtain
state interest to withhold exemption."333 in the Victoriano case where it was the
government itself, through Congress, which
A close look at Victoriano would show that the provided the exemption in Republic Act No.
Court mentioned several tests in determining 3350 to allow Victoriano’s exercise of religion.
when religious freedom may be validly limited. Thus, the government could not argue against
First, the Court mentioned the test of "immediate the exemption on the basis of a compelling state
and grave danger to the security and welfare of interest as it would be arguing against itself;
the community" and "infringement of religious while Victoriano would not seek exemption from
freedom only to the smallest extent necessary" the questioned law to allow the free exercose of
to justify limitation of religious freedom. Second, religion as the law in fact provides such an
religious exercise may be indirectly burdened by exemption. In sum, although Victoriano involved
a general law which has for its purpose and a religious belief and conduct, it did not involve
effect the advancement of the state’s secular a free exercise issue where the Free Exercise
goals, provided that there is no other means by Clause is invoked to exempt him from the burden
which the state can accomplish this purpose imposed by a law on his religious freedom.
without imposing such burden. Third, the Court
referred to the "compelling state interest" test Victoriano was reiterated in several cases
which grants exemptions when general laws involving the Iglesia ni Cristo, namely Basa, et
conflict with religious exercise, unless a al. v. Federacion Obrera de la Industria
compelling state interest intervenes. Tabaquera y Otros Trabajadores de
Filipinas,334 Anucension v. National Labor
It is worth noting, however, that the first two tests Union, et al.,335 and Gonzales, et al. v. Central
were mentioned only for the purpose of Azucarera de Tarlac Labor Union.336
 CONSTI LAW II ACJUCO FINALS 93

would be cited as a test in religious freedom

Then came German v. Barangan in 1985 at the cases. His dissent stated in relevant part, viz:
height of the anti-administration rallies.
Petitioners were walking to St. Jude Church A brief restatement of the applicable
within the Malacanang security area to pray for constitutional principles as set forth in the
"an end to violence" when they were barred by landmark case of J.B.L. Reyes v. Bagatsing (125
the police. Invoking their constitutional freedom SCRA 553[1983]) should guide us in resolving
of religious worship and locomotion, they came the issues.
to the Court on a petition for mandamus to allow
them to enter and pray inside the St. Jude 1. The right to freely exercise one’s religion is
Chapel. The Court was divided on the issue. The guaranteed in Section 8 of our Bill of Rights.
slim majority of six recognized their freedom of (footnote omitted) Freedom of worship,
religion but noted their absence of good faith and alongside with freedom of expression and
concluded that they were using their religious speech and peaceable assembly "along with the
liberty to express their opposition to the other intellectual freedoms, are highly ranked in
government. Citing Cantwell, the Court our scheme of constitutional values. It cannot be
distinguished between freedom to believe and too strongly stressed that on the judiciary - even
freedom to act on matters of religion, viz: more so than on the other departments - rests
the grave and delicate responsibility of assuring
. . . Thus the (First) amendment embraces two respect for and deference to such preferred
concepts - freedom to believe and freedom to rights. No verbal formula, no sanctifying phrase
act. The first is absolute, but in the nature of can, of course, dispense with what has been so
things, the second cannot be.337 felicitously termed by Justice Holmes ‘as the
sovereign prerogative of judgment.’
The Court reiterated the Gerona ruling, viz: Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of
In the case at bar, petitioners are not denied or such rights, enjoying as they do precedence and
restrained of their freedom of belief or choice of primacy.’ (J.B.L. Reyes, 125 SCRA at pp. 569-
their religion, but only in the manner by which 570)
they had attempted to translate the same to
action. This curtailment is in accord with the 2. In the free exercise of such preferred rights,
pronouncement of this Court in Gerona v. there is to be no prior restraint although there
Secretary of Education (106 Phil. 2), thus: may be subsequent punishment of any illegal
acts committed during the exercise of such basic
. . . But between the freedom of belief and the rights. The sole justification for a prior restraint
exercise of said belief, there is quite a stretch of or limitation on the exercise of these basic rights
road to travel. If the exercise of said religious is the existence of a grave and present danger
belief clashes with the established institutions of of a character both grave and imminent, of a
society and with the law, then the former must serious evil to public safety, public morals, public
yield and give way to the latter. The government health or any other legitimate public interest, that
steps in and either restrains said exercise or the State has a right (and duty) to prevent (Idem,
even prosecutes the one exercising it. (italics at pp. 560-561).339 (emphasis supplied)
supplied)
The J.B.L. Reyes v. Bagatsing case from which
The majority found that the restriction imposed this portion of Justice Teehankee’s dissent was
upon petitioners was "necessary to maintain the taken involved the rights to free speech and
smooth functioning of the executive branch of assembly, and not the exercise of religious
the government, which petitioners’ mass action freedom. At issue in that case was a permit
would certainly disrupt"338 and denied the sought by retired Justice J.B.L. Reyes, on behalf
petition. Thus, without considering the tests of the Anti-Bases Coalition, from the City of
mentioned in Victoriano, German went back to Manila to hold a peaceful march and rally from
the Gerona rule that religious freedom will not be the Luneta to the gates of the U.S. Embassy.
upheld if it clashes with the established Nevertheless Bagatsing was used by Justice
institutions of society and the law. Teehankee in his dissent which had overtones
of petitioner German and his companions’ right
Then Associate Justice Teehankee registered a to assemble and petition the government for
dissent which in subsequent jurisprudence redress of grievances.340
 CONSTI LAW II ACJUCO FINALS 94

will bring about the very situation that this Court

In 1993, the issue on the Jehovah’s Witnesses’ has feared in Gerona. Forcing a small religious
participation in the flag ceremony again came group, through the iron hand of the law, to
before the Court in Ebralinag v. The Division participate in a ceremony that violates their
Superintendent of Schools.341 A unanimous religious beliefs, will hardly be conducive to love
Court overturned the Gerona ruling after three of country or respect for duly constituted
decades. Similar to Gerona, this case involved authorities.343
several Jehovah’s Witnesses who were expelled
from school for refusing to salute the flag, sing Barnette also found its way to the opinion, viz:
the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of Furthermore, let it be noted that coerced unity
1987. In resolving the same religious freedom and loyalty even to the country, x x x- assuming
issue as in Gerona, the Court this time that such unity and loyalty can be attained
transported the "grave and imminent danger" through coercion- is not a goal that is
test laid down in Justice Teehankee’s dissent in constitutionally obtainable at the expense of
German, viz: religious liberty. A desirable end cannot be
promoted by prohibited means. (Meyer vs.
The sole justification for a prior restraint or Nebraska, 262 U.S. 390, 67 L. ed. 1042,
limitation on the exercise of religious freedom 1046).344
(according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German Towards the end of the decision, the Court also
v. Barangan, 135 SCRA 514, 517) is the cited the Victoriano case and its use of the
existence of a grave and present danger of a "compelling state interest" test in according
character both grave and imminent, of a serious exemption to the Jehovah’s Witnesses, viz:
evil to public safety, public morals, public health
or any other legitimate public interest, that the In Victoriano vs. Elizalde Rope Workers’ Union,
State has a right (and duty) to prevent. Absent 59 SCRA 54, 72-75, we upheld the exemption of
such a threat to public safety, the expulsion of members of the Iglesia ni Cristo, from the
the petitioners from the schools is not coverage of a closed shop agreement between
justified.342 (emphasis supplied) their employer and a union because it would
violate the teaching of their church not to join any
The Court added, viz: group:

We are not persuaded that by exempting the ‘x x x It is certain that not every conscience can
Jehovah’s Witnesses from saluting the flag, be accommodated by all the laws of the land; but
singing the national anthem and reciting the when general laws conflict with scruples of
patriotic pledge, this religious group which conscience, exemptions ought to be granted
admittedly comprises a ‘small portion of the unless some ‘compelling state interest’
school population’ will shake up our part of the intervenes.’ (Sherbert vs. Verner, 374 U.S. 398,
globe and suddenly produce a nation ‘untaught 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)’
and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country We hold that a similar exemption may be
and admiration for national heroes’ (Gerona v. accorded to the Jehovah’s Witnesses with
Secretary of Education, 106 Phil. 224). After all, regard to the observance of the flag ceremony
what the petitioners seek only is exemption from out of respect for their religious beliefs, however
the flag ceremony, not exclusion from the public ‘bizarre’ those beliefs may seem to others.345
schools where they may study the Constitution,
the democratic way of life and form of The Court annulled the orders expelling
government, and learn not only the arts, petitioners from school.
sciences, Philippine history and culture but also
receive training for a vocation or profession and Thus, the "grave and imminent danger" test laid
be taught the virtues of ‘patriotism, respect for down in a dissenting opinion in German which
human rights, appreciation of national heroes, involved prior restraint of religious worship with
the rights and duties of citizenship, and moral overtones of the right to free speech and
and spiritual values’ (Sec. 3[2], Art. XIV, 1987 assembly, was transported to Ebralinag which
Constitution) as part of the curricula. Expelling or did not involve prior restraint of religious
banning the petitioners from Philippine schools worship, speech or assembly. Although, it might
 CONSTI LAW II ACJUCO FINALS 95

be observed that the Court faintly implied that that freedom to believe is absolute but freedom
Ebralinag also involved the right to free speech to act on one’s belief, where it affects the public,
when in its preliminary remarks, the Court stated is subject to the authority of the state. The
that compelling petitioners to participate in the commentary quoted Justice Frankfurter’s
flag ceremony "is alien to the conscience of the dissent in Barnette which was quoted in Gerona,
present generation of Filipinos who cut their viz: "(t)he constitutional provision on religious
teeth on the Bill of Rights which guarantees their freedom terminated disabilities, it did not create
rights to free speech and the free exercise of new privileges. It gave religious liberty, not civil
religious profession and worship;" the Court then immunity. Its essence is freedom from
stated in a footnote that the "flag salute, singing conformity to religious dogma, not freedom from
the national anthem and reciting the patriotic conformity to law because of religious
pledge are all forms of utterances."346 dogma."349 Nevertheless, the Court was quick
to add the criteria by which the state can regulate
The "compelling state interest" test was not fully the exercise of religious freedom, that is, when
applied by the Court in Ebralinag. In the Solicitor the exercise will bring about the "clear and
General’s consolidated comment, one of the present danger of some substantive evil which
grounds cited to defend the expulsion orders the State is duty bound to prevent, i.e., serious
issued by the public respondents was that "(t)he detriment to the more overriding interest of
State’s compelling interests being pursued by public health, public morals, or public
the DEC’s lawful regulations in question do not welfare."350
warrant exemption of the school children of the
Jehovah’s Witnesses from the flag salute In annulling the x-rating of the shows, the Court
ceremonies on the basis of their own self- stressed that the Constitution is hostile to all
perceived religious convictions."347 The Court, prior restraints on speech, including religious
however, referred to the test only towards the speech and the x-rating was a suppression of
end of the decision and did not even mention petitioner’s freedom of speech as much as it was
what the Solicitor General argued as the an interference with its right to free exercise of
compelling state interest, much less did the religion. Citing Cantwell, the Court recognized
Court explain why the interest was not that the different religions may criticize one
sufficiently compelling to override petitioners’ another and their tenets may collide, but the
religious freedom. Establishment Clause prohibits the state from
protecting any religion from this kind of attack.
Three years after Ebralinag, the Court decided
the 1996 case of Iglesia ni Cristo v. Court of The Court then called to mind the "clear and
Appeals, et al.348 Although there was a dissent present danger" test first laid down in the
with respect to the applicability of the "clear and American Bible Society case and the test of
present danger" test in this case, the majority "immediate and grave danger" with
opinion in unequivocal terms applied the "clear "infringement only to the smallest extent
and present danger" test to religious speech. necessary to avoid danger" in Victoriano and
This case involved the television program, "Ang pointed out that the reviewing board failed to
Iglesia ni Cristo," regularly aired over the apply the "clear and present danger" test.
television. Upon petitioner Iglesia ni Cristo’s Applying the test, the Court noted, viz:
submission of the VTR tapes of some of its
episodes, respondent Board of Review for The records show that the decision of the
Motion Pictures and Television classified these respondent Board, affirmed by the respondent
as "X" or not for public viewing on the ground appellate court, is completely bereft of findings
that they "offend and constitute an attack against of facts to justify the conclusion that the subject
other religions which is expressly prohibited by video tapes constitute impermissible attacks
law." Invoking religious freedom, petitioner against another religion. There is no showing
alleged that the Board acted without jurisdiction whatsoever of the type of harm the tapes will
or with grave abuse of discretion in requiring it to bring about especially the gravity and
submit the VTR tapes of its television program imminence of the threatened harm. Prior
and x-rating them. While upholding the Board’s restraint on speech, including religious speech,
power to review the Iglesia television show, the cannot be justified by hypothetical fears but only
Court was emphatic about the preferred status by the showing of a substantive and imminent
of religious freedom. Quoting Justice Cruz’ evil which has taken the life of a reality already
commentary on the constitution, the Court held on ground.
 CONSTI LAW II ACJUCO FINALS 96

allowed to compete on their own intrinsic merit

Replying to the challenge on the applicability of without benefit of official patronage. Such
the "clear and present danger" test to the case, voluntarism cannot be achieved unless the
the Court acknowledged the permutations that political process is insulated from religion and
the test has undergone, but stressed that the test unless religion is insulated from politics."355
is still applied to four types of speech: "speech Non-establishment thus calls for government
that advocates dangerous ideas, speech that neutrality in religious matters to uphold
provokes a hostile audience reaction, out of voluntarism and avoid breeding interfaith
court contempt and release of information that dissension.356
endangers a fair trial"351 and ruled, viz:
The neutrality principle was applied in the first
. . . even allowing the drift of American significant non-establishment case under the
jurisprudence, there is reason to apply the clear 1935 Constitution. In the 1937 case of Aglipay v.
and present danger test to the case at bar which Ruiz,357 the Philippine Independent Church
concerns speech that attacks other religions and challenged the issuance and sale of postage
could readily provoke hostile audience reaction. stamps commemorating the Thirty-Third
It cannot be doubted that religious truths disturb International Eucharistic Congress of the
and disturb terribly.352 Catholic Church on the ground that the
constitutional prohibition against the use of
In Iglesia therefore, the Court went back to public money for religious purposes has been
Gerona insofar as holding that religious freedom violated. It appears that the Director of Posts
cannot be invoked to seek exemption from issued the questioned stamps under the
compliance with a law that burdens one’s provisions of Act No. 4052358 which
religious exercise. It also reiterated the "clear appropriated a sum for the cost of plates and
and present danger" test in American Bible printing of postage stamps with new designs and
Society and the "grave and imminent danger" in authorized the Director of Posts to dispose of the
Victoriano, but this time clearly justifying its sum in a manner and frequency "advantageous
applicability and showing how the test was to the Government." The printing and issuance
applied to the case. of the postage stamps in question appears to
have been approved by authority of the
In sum, the Philippine Supreme Court has President. Justice Laurel, speaking for the
adopted a posture of not invalidating a law Court, took pains explaining religious freedom
offensive to religious freedom, but carving out an and the role of religion in society, and in
exception or upholding an exception to conclusion, found no constitutional infirmity in
accommodate religious exercise where it is the issuance and sale of the stamps, viz:
justified.353
The prohibition herein expressed is a direct
2. Establishment Clause corollary of the principle of separation of church
and state. Without the necessity of adverting to
In Philippine jurisdiction, there is substantial the historical background of this principle in our
agreement on the values sought to be protected country, it is sufficient to say that our history, not
by the Establishment Clause, namely, to speak of the history of mankind, has taught us
voluntarism and insulation of the political that the union of church and state is prejudicial
process from interfaith dissension. The first, to both, for occasions might arise when the state
voluntarism, has both a personal and a social will use the church, and the church the state, as
dimension. As a personal value, it refers to the a weapon in the furtherance of their respective
inviolability of the human conscience which, as ends and aims . . . It is almost trite to say now
discussed above, is also protected by the free that in this country we enjoy both religious and
exercise clause. From the religious perspective, civil freedom. All the officers of the Government,
religion requires voluntarism because from the highest to the lowest, in taking their oath
compulsory faith lacks religious efficacy. to support and defend the Constitution, bind
Compelled religion is a contradiction in themselves to recognize and respect the
terms.354 As a social value, it means that the constitutional guarantee of religious freedom,
"growth of a religious sect as a social force must with its inherent limitations and recognized
come from the voluntary support of its members implications. It should be stated that what is
because of the belief that both spiritual and guaranteed by our Constitution is religious
secular society will benefit if religions are liberty, not mere toleration.
 CONSTI LAW II ACJUCO FINALS 97

at issue as the controversy was over who should

Religious freedom, however, as a constitutional have custody of a saint’s image, it nevertheless
mandate is not an inhibition of profound made pronouncements on the separation of
reverence for religion and is not a denial of its church and state along the same line as the
influence in human affairs. Religion as a Aglipay ruling. The Court held that there was
profession of faith to an active power that binds nothing unconstitutional or illegal in holding a
and elevates man to his Creator is recognized. fiesta and having a patron saint for the barrio. It
And, in so far as it instills into the minds the adhered to the barrio resolutions of the barangay
purest principles of morality, its influence is involved in the case stating that the barrio fiesta
deeply felt and highly appreciated. When the is a socio-religious affair, the celebration of
Filipino people, in the preamble of their which is an "ingrained tradition in rural
Constitution, implored "the aid of Divine communities" that "relieves the monotony and
Providence, in order to establish a government drudgery of the lives of the masses." Corollarily,
that shall embody their ideals, conserve and the Court found nothing illegal about any activity
develop the patrimony of the nation, promote the intended to facilitate the worship of the patron
general welfare, and secure to themselves and saint such as the acquisition and display of his
their posterity the blessings of independence image bought with funds obtained through
under a regime of justice, liberty and solicitation from the barrio residents. The Court
democracy," they thereby manifested their pointed out that the image of the patron saint
intense religious nature and placed unfaltering was "purchased in connection with the
reliance upon Him who guides the destinies of celebration of the barrio fiesta honoring the
men and nations. The elevating influence of patron saint, San Vicente Ferrer, and not for the
religion in human society is recognized here as purpose of favoring any religion nor interfering
elsewhere. In fact, certain general concessions with religious matters or the religious beliefs of
are indiscriminately accorded to religious sects the barrio residents." Citing the Aglipay ruling,
and denominations. . .359 the Court declared, viz:

xxx xxx xxx Not every governmental activity which involves

the expenditure of public funds and which has
It is obvious that while the issuance and sale of some religious tint is violative of the
the stamps in question may be said to be constitutional provisions regarding separation of
inseparably linked with an event of a religious church and state, freedom of worship and
character, the resulting propaganda, if any, banning the use of public money or property.
received by the Roman Catholic Church, was
not the aim and purpose of the Government. We Then came the 1978 case of Pamil v. Teleron, et
are of the opinion that the Government should al.362 which presented a novel issue involving
not be embarrassed in its activities simply the religion clauses. In this case, Section 2175
because of incidental results, more or less of the Revised Administrative Code of 1917
religious in character, if the purpose had in view disqualifying ecclesiastics from appointment or
is one which could legitimately be undertaken by election as municipal officer was challenged.
appropriate legislation. The main purpose After protracted deliberation, the Court was
should not be frustrated by its subordination to sharply divided on the issue. Seven members of
mere incidental results not contemplated. (Vide the Court, one short of the number necessary to
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. declare a law unconstitutional, approached the
Rep., 121; 44 Law. ed., 168)360 (emphases problem from a free exercise perspective and
supplied) considered the law a religious test offensive of
the constitution. They were Justices Fernando,
In so deciding the case, the Court, citing U.S. Teehankee, Muñoz-Palma, Concepcion, Jr.,
jurisprudence, laid down the doctrine that a law Santos, Fernandez, and Guerrero. Then
or government action with a legitimate secular Associate Justice Fernando, the ponente,
purpose does not offend the Establishment stated, viz: "The challenged Administrative Code
Clause even if it incidentally aids a particular provision, certainly insofar as it declares
religion. ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with
Almost forty-five years after Aglipay came the religious freedom guaranteed by the
Garces v. Estenzo.361 Although the Court found Constitution." Citing Torcaso v. Watkins,363 the
that the separation of church and state was not ponencia held, viz:
 CONSTI LAW II ACJUCO FINALS 98

the resolution of which necessitated the

Torcaso v. Watkins, an American Supreme determination of who was the legitimate bishop
Court decision, has persuasive weight. What of the church. The Court cited American
was there involved was the validity of a provision Jurisprudence,366 viz:
in the Maryland Constitution prescribing that ‘no
religious test ought ever to be required as a Where, however, a decision of an ecclesiastical
disqualification for any office or profit or trust in court plainly violates the law it professes to
this State, other than a declaration of belief in the administer, or is in conflict with the law of the
existence of God ***.’ Such a constitutional land, it will not be followed by the civil courts. . .
requirement was assailed as contrary to the First In some instances, not only have the civil courts
Amendment of the United States Constitution by the right to inquire into the jurisdiction of the
an appointee to the office of notary public in religious tribunals and the regularity of their
Maryland, who was refused a commission as he procedure, but they have subjected their
would not declare a belief in God. He failed in decisions to the test of fairness or to the test
the Maryland Court of Appeals but prevailed in furnished by the constitution and the law of the
the United States Supreme Court, which church. . .367
reversed the state court decision. It could not
have been otherwise. As emphatically declared The Court then ruled that petitioner Fonacier
by Justice Black: ‘this Maryland religious test for was legitimately ousted and respondent de los
public office unconstitutionally invades the Reyes was the duly elected head of the Church,
appellant’s freedom of belief and religion and based on their internal laws. To finally dispose of
therefore cannot be enforced against him. the property issue, the Court, citing Watson v.
Jones,368 declared that the rule in property
The analogy appears to be obvious. In that case, controversies within religious congregations
it was lack of belief in God that was a strictly independent of any other superior
disqualification. Here being an ecclesiastic and ecclesiastical association (such as the Philippine
therefore professing a religious faith suffices to Independent Church) is that the rules for
disqualify for a public office. There is thus an resolving such controversies should be those of
incompatibility between the Administrative Code any voluntary association. If the congregation
provision relied upon by petitioner and an adopts the majority rule then the majority should
express constitutional mandate.364 prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that
On the other hand, the prevailing five other should be followed. Applying these rules,
members of the Court - Chief Justice Castro, Fonacier lost the case. While the Court
Justices Barredo, Makasiar, Antonio and Aquino exercised jurisdiction over the case, it
- approached the case from a non-establishment nevertheless refused to touch doctrinal and
perspective and upheld the law as a safeguard disciplinary differences raised, viz:
against the constant threat of union of church
and state that has marked Philippine history. The amendments of the constitution,
Justice Makasiar stated: "To allow an restatement of articles of religion and
ecclesiastic to head the executive department of abandonment of faith or abjuration alleged by
a municipality is to permit the erosion of the appellant, having to do with faith, practice,
principle of separation of Church and State and doctrine, form of worship, ecclesiastical law,
thus open the floodgates for the violation of the custom and rule of a church and having
cherished liberty of religion which the reference to the power of excluding from the
constitutional provision seeks to enforce and church those allegedly unworthy of membership,
protect." Consequently, the Court upheld the are unquestionably ecclesiastical matters which
validity of Section 2175 of the Revised are outside the province of the civil courts.369
Administrative Code and declared respondent
priest ineligible for the office of municipal mayor. VIII. Free Exercise Clause vis-à-vis
Establishment Clause
Another type of cases interpreting the
establishment clause deals with intramural In both Philippine and U.S. jurisdiction, it is
religious disputes. Fonacier v. Court of recognized that there is a tension between the
Appeals365 is the leading case. The issue Free Exercise Clause and the Establishment
therein was the right of control over certain Clause in their application. There is a natural
properties of the Philippine Independent Church, antagonism between a command not to
 CONSTI LAW II ACJUCO FINALS 99

establish religion and a command not to inhibit (t)he Court has struggled to find a neutral course
its practice; this tension between the religion between the two religion clauses, both of which
clauses often leaves the courts with a choice are cast in absolute terms, and either of which, if
between competing values in religion cases.370 expanded to a logical extreme, would tend to
clash with the other.372
One set of facts, for instance, can be differently
viewed from the Establishment Clause Similarly, the Philippine Supreme Court in the
perspective and the Free Exercise Clause point Victoriano case held that the exemption afforded
of view, and decided in opposite directions. In by law to religious sects who prohibit their
Pamil, the majority gave more weight to the members from joining unions did not offend the
religious liberty of the priest in holding that the Establishment Clause. We ruled, viz:
prohibition of ecclesiastics to assume elective or
appointive government positions was violative of We believe that in enacting Republic Act No.
the Free Exercise Clause. On the other hand, 3350, Congress acted consistently with the spirit
the prevailing five justices gave importance to of the constitutional provision. It acted merely to
the Establishment Clause in stating that the relieve the exercise of religion, by certain
principle of separation of church and state persons, of a burden that is imposed by union
justified the prohibition. security agreements.373 (emphasis supplied)

Tension is also apparent when a case is decided Finally, in some cases, a practice is obviously
to uphold the Free Exercise Clause and violative of the Establishment Clause but the
consequently exemptions from a law of general Court nevertheless upholds it. In Schempp,
applicability are afforded by the Court to the Justice Brennan stated: "(t)here are certain
person claiming religious freedom; the question practices, conceivably violative of the
arises whether the exemption does not amount Establishment Clause, the striking down of
to support of the religion in violation of the which might seriously interfere with certain
Establishment Clause. This was the case in the religious liberties also protected by the First
Free Exercise Clause case of Sherbert where Amendment."
the U.S. Supreme Court ruled, viz:
How the tension between the Establishment
In holding as we do, plainly we are not fostering Clause and the Free Exercise Clause will be
the "establishment" of the Seventh-day resolved is a question for determination in the
Adventist religion in South Carolina, for the actual cases that come to the Court. In cases
extension of unemployment benefits to involving both the Establishment Clause and the
Sabbatarians in common with Sunday Free Exercise Clause, the two clauses should be
worshippers reflects nothing more than the balanced against each other. The courts must
governmental obligation of neutrality in the face review all the relevant facts and determine
of religious differences, and does not represent whether there is a sufficiently strong free
that involvement of religious with secular exercise right that should prevail over the
institutions which it is the object of the Establishment Clause problem. In the United
Establishment Clause to forestall.371 (emphasis States, it has been proposed that in balancing,
supplied) the free exercise claim must be given an edge
not only because of abundant historical
Tension also exists when a law of general evidence in the colonial and early national period
application provides exemption in order to of the United States that the free exercise
uphold free exercise as in the Walz case where principle long antedated any broad-based
the appellant argued that the exemption granted support of disestablishment, but also because
to religious organizations, in effect, required him an Establishment Clause concern raised by
to contribute to religious bodies in violation of the merely accommodating a citizen’s free exercise
Establishment Clause. But the Court held that of religion seems far less dangerous to the
the exemption was not a case of establishing republic than pure establishment cases. Each
religion but merely upholding the Free Exercise time the courts side with the Establishment
Clause by "sparing the exercise of religion from Clause in cases involving tension between the
the burden of property taxation levied on private two religion clauses, the courts convey a
profit institutions." Justice Burger wrote, viz: message of hostility to the religion that in that
case cannot be freely exercised.374 American
professor of constitutional law, Laurence Tribe,
 CONSTI LAW II ACJUCO FINALS 100

similarly suggests that the free exercise principle change in the landscape of U.S. religion clause
"should be dominant in any conflict with the anti- jurisprudence, the Philippines continued to
establishment principle." This dominance would adopt the 1935 Constitution religion clauses in
be the result of commitment to religious the 1973 Constitution and later, the 1987
tolerance instead of "thwarting at all costs even Constitution. Philippine jurisprudence and
the faintest appearance of establishment."375 In commentaries on the religious clauses also
our jurisdiction, Fr. Joaquin Bernas, S.J. asserts continued to borrow authorities from U.S.
that a literal interpretation of the religion clauses jurisprudence without articulating the stark
does not suffice. Modern society is distinction between the two streams of U.S.
characterized by the expanding regulatory arm jurisprudence. One might simply conclude that
of government that reaches a variety of areas of the Philippine Constitutions and jurisprudence
human conduct and an expanding concept of also inherited the disarray of U.S. religion clause
religion. To adequately meet the demands of this jurisprudence and the two identifiable streams;
modern society, the societal values the religion thus, when a religion clause case comes before
clauses are intended to protect must be the Court, a separationist approach or a
considered in their interpretation and resolution benevolent neutrality approach might be
of the tension. This, in fact, has been the adopted and each will have U.S. authorities to
approach followed by the Philippine Court.376 support it. Or, one might conclude that as the
history of the First Amendment as narrated by
IX. Philippine Religion Clauses: Nature, the Court in Everson supports the separationist
Purpose, Tests approach, Philippine jurisprudence should also
Based on Philippine and American Religion follow this approach in light of the Philippine
Clause History, religion clauses’ history. As a result, in a case
Law and Jurisprudence where the party claims religious liberty in the
face of a general law that inadvertently burdens
The history of the religion clauses in the 1987 his religious exercise, he faces an almost
Constitution shows that these clauses were insurmountable wall in convincing the Court that
largely adopted from the First Amendment of the the wall of separation would not be breached if
U.S. Constitution. The religion clauses in the the Court grants him an exemption. These
First Amendment were contained in every conclusions, however, are not and were never
organic Act of the Philippines under the warranted by the 1987, 1973 and 1935
American regime. When the delegates of the Constitutions as shown by other provisions on
1934 Constitutional Convention adopted a Bill of religion in all three constitutions.1âwphi1 It is a
Rights in the 1935 Constitution, they purposely cardinal rule in constitutional construction that
retained the phraseology of the religion clauses the constitution must be interpreted as a whole
in the First Amendment as contained in the and apparently conflicting provisions should be
Jones Law in order to adopt its historical reconciled and harmonized in a manner that will
background, nature, extent and limitations. At give to all of them full force and effect.377 From
that time, there were not too many religion this construction, it will be ascertained that the
clause cases in the United States as the U.S. intent of the framers was to adopt a benevolent
Supreme Court decided an Establishment neutrality approach in interpreting the religious
Clause issue only in the 1947 Everson case. The clauses in the Philippine constitutions, and the
Free Exercise Clause cases were also scarce enforcement of this intent is the goal of
then. Over the years, however, with the construing the constitution.378
expanding reach of government regulation to a
whole gamut of human actions and the growing We first apply the hermeneutical scalpel to
plurality and activities of religions, the number of dissect the 1935 Constitution. At the same time
religion clause cases in the U.S. exponentially that the 1935 Constitution provided for an
increased. With this increase came an Establishment Clause, it also provided for tax
expansion of the interpretation of the religion exemption of church property in Article VI,
clauses, at times reinforcing prevailing case law, Section 22, par. 3(b), viz:
at other times modifying it, and still at other times
creating contradictions so that two main streams (3) Cemeteries, churches, and parsonages or
of jurisprudence had become identifiable. The convents, appurtenant thereto, and all lands,
first stream employs separation while the buildings, and improvements used exclusively
second employs benevolent neutrality in for religious, charitable, or educational purposes
interpreting the religious clauses. Alongside this shall be exempt from taxation.
 CONSTI LAW II ACJUCO FINALS 101

(3) No public money, or property shall ever be

Before the advent of the 1935 Constitution, appropriated, applied, or used, directly or
Section 344 of the Administrative Code provided indirectly, for the use, benefit, or support of any
for a similar exemption. To the same effect, the sect, church, denomination, sectarian institution
Tydings-McDuffie Law contained a limitation on or system of religion, for the use, benefit or
the taxing power of the Philippine government support of any priest, preacher, ministers or
during the Commonwealth period.379 The other religious teacher or dignitary as such,
original draft of the Constitution placed this except when such priest, preacher, minister, or
provision in an ordinance to be appended to the dignitary is assigned to the armed forces or to
Constitution because this was among the any penal institution, orphanage, or leprosarium.
provisions prescribed by the Tydings-McDuffie (emphasis supplied)
Law. However, in order to have a constitutional
guarantee for such an exemption even beyond The original draft of this provision was a
the Commonwealth period, the provision was reproduction of a portion of section 3 of the
introduced in the body of the Constitution on the Jones Law which did not contain the above
rationale that "if churches, convents [rectories or exception, viz:
parsonages] and their accessories are always
necessary for facilitating the exercise of such No public money or property shall ever be
[religious] freedom, it would also be natural that appropriated, applied, or used, directly or
their existence be also guaranteed by exempting indirectly, for the use, benefit, or support of any
them from taxation."380 The amendment was sect, church denomination, sectarian institution,
readily approved with 83 affirmative votes or system of religion, or for the use, benefit or
against 15 negative votes.381 support of any priest, preacher, minister, or
dignitary as such…382
The Philippine constitutional provision on tax
exemption is not found in the U.S. Constitution. In the deliberations of this draft provision, an
In the U.S. case of Walz, the Court struggled to amendment was proposed to strike down
justify this kind of exemption to withstand everything after "church denomination."383 The
Establishment Clause scrutiny by stating that proposal intended to imitate the silence of the
church property was not singled out but was U.S. Constitution on the subject of support for
exempt along with property owned by non-profit, priests and ministers. It was also an imitation of
quasi-public corporations because the state the silence of the Malolos Constitution to restore
upheld the secular policy "that considers these the situation under the Malolos Constitution and
groups as beneficial and stabilizing influences in prior to the Jones Law, when chaplains of the
community life and finds this classification revolutionary army received pay from public
useful, desirable, and in the public interest." The funds with no doubt about its legality. It was
Court also stated that the exemption was meant pointed out, however, that even with the
to relieve the burden on free exercise imposed prohibition under the Jones Law, appropriations
by property taxation. At the same time, however, were made to chaplains of the national
the Court acknowledged that the exemption was penitentiary and the Auditor General upheld its
an exercise of benevolent neutrality to validity on the basis of a similar United States
accommodate a long-standing tradition of practice. But it was also pointed out that the U.S.
exemption. With the inclusion of the church Constitution did not contain a prohibition on
property tax exemption in the body of the 1935 appropriations similar to the Jones Law.384 To
Constitution and not merely as an ordinance settle the question on the constitutionality of
appended to the Constitution, the benevolent payment of salaries of religious officers in certain
neutrality referred to in the Walz case was given government institutions and to avoid the feared
constitutional imprimatur under the regime of the situation where the enumerated government
1935 Constitution. The provision, as stated in institutions could not employ religious officials
the deliberations, was an acknowledgment of with compensation, the exception in the 1935
the necessity of the exempt institutions to the provision was introduced and approved. The
exercise of religious liberty, thereby evincing provision garnered 74 affirmative votes against
benevolence towards religious exercise. 34 negative votes.385 As pointed out in the
deliberations, the U.S. Constitution does not
Similarly, the 1935 Constitution provides in provide for this exemption. However, the U.S.
Article VI, Section 23(3), viz: Supreme Court in Cruz v. Beto, apparently
taking a benevolent neutrality approach,
 CONSTI LAW II ACJUCO FINALS 102

implicitly approved the state of Texas’ payment curriculum of the public schools but would only
of prison chaplains’ salaries as reasonably be taken by pupils at the option of their parents
necessary to permit inmates to practice their or guardians. After several rounds of debate, the
religion. Also, in the Marsh case, the U.S. second camp prevailed, thus raising to
Supreme Court upheld the long-standing constitutional stature the optional teaching of
tradition of beginning legislative sessions with religion in public schools, despite the opposition
prayers offered by legislative chaplains retained to the provision on the ground of separation of
at taxpayers’ expense. The constitutional church and state.387 As in the provisions on
provision exempting religious officers in church property tax exemption and
government institutions affirms the departure of compensation of religious officers in government
the Philippine Constitution from the U.S. institutions, the U.S. Constitution does not
Constitution in its adoption of benevolent provide for optional religious instruction in public
neutrality in Philippine jurisdiction. While the schools. In fact, in the McCollum case, the Court,
provision prohibiting aid to religion protects the using strict neutrality, prohibited this kind of
wall of separation between church and state, the religious instruction where the religion teachers
provision at the same time gives constitutional would conduct class within the school premises.
sanction to a breach in the wall. The constitutional provision on optional religious
instruction shows that Philippine jurisdiction
To further buttress the thesis that benevolent rejects the strict neutrality approach which does
neutrality is contemplated in the Philippine not allow such accommodation of religion.
Establishment Clause, the 1935 Constitution
provides for optional religious instruction in Finally, to make certain the Constitution’s
public schools in Article XIII, Section 5, viz: benevolence to religion, the Filipino people
"implored (ing) the aid of Divine Providence (,) in
. . . Optional religious instruction shall be order to establish a government that shall
maintained in the public schools as now embody their ideals, conserve and develop the
authorized by law. . . patrimony of the nation, promote the general
welfare, and secure to themselves and their
The law then applicable was Section 928 of the posterity the blessings of independence under a
Administrative Code, viz: regime of justice, liberty, and democracy, (in)
ordain(ing) and promulgat(ing) this
It shall be lawful, however, for the priest or Constitution." A preamble is a "key to open the
minister of any church established in the town mind of the authors of the constitution as to the
where a public school is situated, either in evil sought to be prevented and the objects
person or by a designated teacher of religion, to sought to be accomplished by the provisions
teach religion for one-half hour three times a thereof."388 There was no debate on the
week, in the school building, to those public- inclusion of a "Divine Providence" in the
school pupils whose parents or guardians desire preamble. In Aglipay, Justice Laurel noted that
it and express their desire therefor in writing filed when the Filipino people implored the aid of
with the principal of the school . . . Divine Providence, "(t)hey thereby manifested
their intense religious nature and placed
During the debates of the Constitutional unfaltering reliance upon Him who guides the
Convention, there were three positions on the destinies of men and nations."389 The 1935
issue of religious instruction in public schools. Constitution’s religion clauses, understood
The first held that the teaching of religion in alongside the other provisions on religion in the
public schools should be prohibited as this was Constitution, indubitably shows not hostility, but
a violation of the principle of separation of church benevolence, to religion.390
and state and the prohibition against the use of
public funds for religious purposes. The second The 1973 Constitution contained in Article VI,
favored the proposed optional religious Section 22(3) a provision similar to Article VI,
instruction as authorized by the Administrative Section 22, par. 3(b) of the 1935 Constitution on
Code and recognized that the actual practice of exemption of church property from taxation, with
allowing religious instruction in the public the modification that the property should not only
schools was sufficient proof that religious be used directly, but also actually and
instruction was not and would not be a source of exclusively for religious or charitable purposes.
religious discord in the schools.386 The third Parallel to Article VI, Section 23(3) of the 1935
wanted religion to be included as a course in the Constitution, the 1973 Constitution also
 CONSTI LAW II ACJUCO FINALS 103

contained a similar provision on salaries of to it, this principle was implied in the 1935
religious officials employed in the enumerated Constitution even in the absence of a similar
government institutions. Article XIII, Section 5 of provision.393
the 1935 Constitution on optional religious
instruction was also carried to the 1973 Then came the 1987 Constitution. The 1973
Constitution in Article XV, Section 8(8) with the Constitutional provision on tax exemption of
modification that optional religious instruction church property was retained with minor
shall be conducted "as may be provided by law" modification in Article VI, Section 28(3) of the
and not "as now authorized by law" as stated in 1987 Constitution. The same is true with respect
the 1935 Constitution. The 1973 counterpart, to the prohibition on the use of public money and
however, made explicit in the constitution that property for religious purposes and the salaries
the religious instruction in public elementary and of religious officers serving in the enumerated
high schools shall be done "(a)t the option government institutions, now contained in Article
expressed in writing by the parents or guardians, VI, Section 29(2). Commissioner Bacani,
and without cost to them and the government." however, probed into the possibility of allowing
With the adoption of these provisions in the 1973 the government to spend public money for
Constitution, the benevolent neutrality approach purposes which might have religious
continued to enjoy constitutional sanction. In connections but which would benefit the public
Article XV, Section 15 of the General Provisions generally. Citing the Aglipay case,
of the 1973 Constitution this provision made its Commissioner Rodrigo explained that if a public
maiden appearance: "(t)he separation of church expenditure would benefit the government
and state shall be inviolable." The 1973 directly, such expense would be constitutional
Constitution retained the portion of the preamble even if it results to an incidental benefit to
"imploring the aid of Divine Providence." religion. With that explanation, Commissioner
Bacani no longer pursued his proposal.394
In the Report of the Ad Hoc Sub-Committee on
Goals, Principles and Problems of the The provision on optional religious instruction
Committee on Church and State of the 1971 was also adopted in the 1987 Constitution in
Constitutional Convention, the question arose as Article XIV, Section 3(3) with the modification
to whether the "absolute" separation of Church that it was expressly provided that optional
and State as enunciated in the Everson case instruction shall be conducted "within the regular
and reiterated in Schempp - i.e., neutrality not class hours" and "without additional cost to the
only as between one religion and another but government". There were protracted debates on
even as between religion and non-religion - is what additional cost meant, i.e., cost over and
embodied in the Philippine Constitution. The above what is needed for normal operations
sub-committee’s answer was that it did not seem such as wear and tear, electricity, janitorial
so. Citing the Aglipay case where Justice Laurel services,395 and when during the day
recognized the "elevating influence of religion in instruction would be conducted.396 In
human society" and the Filipinos’ imploring of deliberating on the phrase "within the regular
Divine Providence in the 1935 Constitution, the class hours," Commissioner Aquino expressed
sub-committee asserted that the state may not her reservations to this proposal as this would
prefer or aid one religion over another, but may violate the time-honored principle of separation
aid all religions equally or the cause of religion in of church and state. She cited the McCullom
general.391 Among the position papers case where religious instruction during regular
submitted to the Committee on Church on State school hours was stricken down as
was a background paper for reconsideration of unconstitutional and also cited what she
the religion provisions of the constitution by Fr. considered the most liberal interpretation of
Bernas, S.J. He stated therein that the Philippine separation of church and state in Surach v.
Constitution is not hostile to religion and in fact Clauson where the U.S. Supreme Court allowed
recognizes the value of religion and only release time for religious instruction. Fr.
accommodates religious values.392 Stated Bernas replied, viz:
otherwise, the Establishment Clause
contemplates not a strict neutrality but . . . the whole purpose of the provision was to
benevolent neutrality. While the Committee provide for an exception to the rule on non-
introduced the provision on separation of church establishment of religion, because if it were not
and state in the General Provisions of the 1973 necessary to make this exception for purposes
Constitution, this was nothing new as according of allowing religious instruction, then we could
 CONSTI LAW II ACJUCO FINALS 104

just drop the amendment. But, as a matter of adherence to the benevolent neutrality approach
fact, this is necessary because we are trying to in interpreting the religion clauses, an approach
introduce something here which is contrary to that looks further than the secular purposes of
American practices.397 (emphasis supplied) government action and examines the effect of
these actions on religious exercise. Benevolent
"(W)ithin regular class hours" was approved. neutrality recognizes the religious nature of the
Filipino people and the elevating influence of
The provision on the separation of church and religion in society; at the same time, it
state was retained but placed under the acknowledges that government must pursue its
Principles in the Declaration of Principles and secular goals. In pursuing these goals, however,
State Policies in Article II, Section 6. In opting to government might adopt laws or actions of
retain the wording of the provision, Fr. Bernas general applicability which inadvertently burden
stated, viz: religious exercise. Benevolent neutrality gives
room for accommodation of these religious
. . . It is true, I maintain, that as a legal statement exercises as required by the Free Exercise
the sentence ‘The separation of Church and Clause. It allows these breaches in the wall of
State is inviolable,’ is almost a useless separation to uphold religious liberty, which after
statement; but at the same time it is a harmless all is the integral purpose of the religion clauses.
statement. Hence, I am willing to tolerate it there, The case at bar involves this first type of
because, in the end, if we look at the accommodation where an exemption is sought
jurisprudence on Church and State, arguments from a law of general applicability that
are based not on the statement of separation of inadvertently burdens religious exercise.
church and state but on the non-establishment
clause in the Bill of Rights.398 Although our constitutional history and
interpretation mandate benevolent neutrality,
The preamble changed "Divine Providence" in benevolent neutrality does not mean that the
the 1935 and 1973 Constitutions to "Almighty Court ought to grant exemptions every time a
God." There was considerable debate on free exercise claim comes before it. But it does
whether to use "Almighty God" which mean that the Court will not look with hostility or
Commissioner Bacani said was more reflective act indifferently towards religious beliefs and
of Filipino religiosity, but Commissioner Rodrigo practices and that it will strive to accommodate
recalled that a number of atheistic delegates in them when it can within flexible constitutional
the 1971 Constitutional Convention objected to limits; it does mean that the Court will not simply
reference to a personal God.399 "God of dismiss a claim under the Free Exercise Clause
History", "Lord of History" and "God" were also because the conduct in question offends a law
proposed, but the phrase "Almighty God" or the orthodox view for this precisely is the
prevailed. Similar to the 1935 and 1971 protection afforded by the religion clauses of the
Constitutions, it is obvious that the 1987 Constitution, i.e., that in the absence of
Constitution is not hostile nor indifferent to legislation granting exemption from a law of
religion;400 its wall of separation is not a wall of general applicability, the Court can carve out an
hostility or indifference.401 exception when the religion clauses justify it.
While the Court cannot adopt a doctrinal
The provisions of the 1935, 1973 and 1987 formulation that can eliminate the difficult
constitutions on tax exemption of church questions of judgment in determining the degree
property, salary of religious officers in of burden on religious practice or importance of
government institutions, optional religious the state interest or the sufficiency of the means
instruction and the preamble all reveal without adopted by the state to pursue its interest, the
doubt that the Filipino people, in adopting these Court can set a doctrine on the ideal towards
constitutions, did not intend to erect a high and which religious clause jurisprudence should be
impregnable wall of separation between the directed.403 We here lay down the doctrine that
church and state.402 The strict neutrality in Philippine jurisdiction, we adopt the
approach which examines only whether benevolent neutrality approach not only because
government action is for a secular purpose and of its merits as discussed above, but more
does not consider inadvertent burden on importantly, because our constitutional history
religious exercise protects such a rigid barrier. and interpretation indubitably show that
By adopting the above constitutional provisions benevolent neutrality is the launching pad from
on religion, the Filipinos manifested their which the Court should take off in interpreting
 CONSTI LAW II ACJUCO FINALS 105

religion clause cases. The ideal towards which taken in this jurisdiction is the Philippines’ own
this approach is directed is the protection of experiment, reflective of the Filipinos’ own
religious liberty "not only for a minority, however national soul, history and tradition. After all, "the
small- not only for a majority, however large- but life of the law. . . has been experience."
for each of us" to the greatest extent possible
within flexible constitutional limits. But while history, constitutional construction,
and earlier jurisprudence unmistakably show
Benevolent neutrality is manifest not only in the that benevolent neutrality is the lens with which
Constitution but has also been recognized in the Court ought to view religion clause cases, it
Philippine jurisprudence, albeit not expressly must be stressed that the interest of the state
called "benevolent neutrality" or should also be afforded utmost protection. To do
"accommodation". In Aglipay, the Court not only this, a test must be applied to draw the line
stressed the "elevating influence of religion in between permissible and forbidden religious
human society" but acknowledged the exercise. It is quite paradoxical that in order for
Constitutional provisions on exemption from tax the members of a society to exercise their
of church property, salary of religious officers in freedoms, including their religious liberty, the law
government institutions, and optional religious must set a limit when their exercise offends the
instruction as well as the provisions of the higher interest of the state. To do otherwise is
Administrative Code making Thursday and self-defeating for unlimited freedom would erode
Friday of the Holy Week, Christmas Day and order in the state and foment anarchy,
Sundays legal holidays. In Garces, the Court not eventually destroying the very state its members
only recognized the Constitutional provisions established to protect their freedoms. The very
indiscriminately granting concessions to purpose of the social contract by which people
religious sects and denominations, but also establish the state is for the state to protect their
acknowledged that government participation in liberties; for this purpose, they give up a portion
long-standing traditions which have acquired a of these freedoms - including the natural right to
social character - "the barrio fiesta is a socio- free exercise - to the state. It was certainly not
religious affair" - does not offend the the intention of the authors of the constitution
Establishment Clause. In Victoriano, the Court that free exercise could be used to countenance
upheld the exemption from closed shop actions that would undo the constitutional order
provisions of members of religious sects who that guarantees free exercise.405
prohibited their members from joining unions
upon the justification that the exemption was not The all important question then is the test that
a violation of the Establishment Clause but was should be used in ascertaining the limits of the
only meant to relieve the burden on free exercise exercise of religious freedom. Philippine
of religion. In Ebralinag, members of the jurisprudence articulates several tests to
Jehovah’s Witnesses were exempt from saluting determine these limits. Beginning with the first
the flag as required by law, on the basis not of a case on the Free Exercise Clause, American
statute granting exemption but of the Free Bible Society, the Court mentioned the "clear
Exercise Clause without offending the and present danger" test but did not employ it.
Establishment Clause. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The
While the U.S. and Philippine religion clauses Gerona case then pronounced that the test of
are similar in form and origin, Philippine permissibility of religious freedom is whether it
constitutional law has departed from the U.S. violates the established institutions of society
jurisprudence of employing a separationist or and law. The Victoriano case mentioned the
strict neutrality approach. The Philippine religion "immediate and grave danger" test as well as the
clauses have taken a life of their own, breathing doctrine that a law of general applicability may
the air of benevolent neutrality and burden religious exercise provided the law is the
accommodation. Thus, the wall of separation in least restrictive means to accomplish the goal of
Philippine jurisdiction is not as high and the law. The case also used, albeit
impregnable as the wall created by the U.S. inappropriately, the "compelling state interest"
Supreme Court in Everson.404 While the test. After Victoriano, German went back to the
religion clauses are a unique American Gerona rule. Ebralinag then employed the
experiment which understandably came about "grave and immediate danger" test and
as a result of America’s English background and overruled the Gerona test. The fairly recent case
colonization, the life that these clauses have of Iglesia ni Cristo went back to the "clear and
 CONSTI LAW II ACJUCO FINALS 106

present danger" test in the maiden case of of the state can prevail over the fundamental
American Bible Society. Not surprisingly, all the right to religious liberty. The test requires the
cases which employed the "clear and present state to carry a heavy burden, a compelling one,
danger" or "grave and immediate danger" test for to do otherwise would allow the state to batter
involved, in one form or another, religious religion, especially the less powerful ones until
speech as this test is often used in cases on they are destroyed.408 In determining which
freedom of expression. On the other hand, the shall prevail between the state’s interest and
Gerona and German cases set the rule that religious liberty, reasonableness shall be the
religious freedom will not prevail over guide.409 The "compelling state interest" serves
established institutions of society and law. the purpose of revering religious liberty while at
Gerona, however, which was the authority cited the same time affording protection to the
by German has been overruled by Ebralinag paramount interests of the state. This was the
which employed the "grave and immediate test used in Sherbert which involved conduct,
danger" test. Victoriano was the only case that i.e. refusal to work on Saturdays. In the end, the
employed the "compelling state interest" test, "compelling state interest" test, by upholding the
but as explained previously, the use of the test paramount interests of the state, seeks to
was inappropriate to the facts of the case. protect the very state, without which, religious
liberty will not be preserved.
The case at bar does not involve speech as in
American Bible Society, Ebralinag and Iglesia ni X. Application of the Religion Clauses to the
Cristo where the "clear and present danger" and Case at Bar
"grave and immediate danger" tests were
appropriate as speech has easily discernible or A. The Religion Clauses and Morality
immediate effects. The Gerona and German
doctrine, aside from having been overruled, is In a catena of cases, the Court has ruled that
not congruent with the benevolent neutrality government employees engaged in illicit
approach, thus not appropriate in this relations are guilty of "disgraceful and immoral
jurisdiction. Similar to Victoriano, the present conduct" for which he/she may be held
case involves purely conduct arising from administratively liable.410 In these cases, there
religious belief. The "compelling state interest" was not one dissent to the majority’s ruling that
test is proper where conduct is involved for the their conduct was immoral. The respondents
whole gamut of human conduct has different themselves did not foist the defense that their
effects on the state’s interests: some effects may conduct was not immoral, but instead sought to
be immediate and short-term while others prove that they did not commit the alleged act or
delayed and far-reaching. A test that would have abated from committing the act. The facts
protect the interests of the state in preventing a of the 1975 case of De Dios v. Alejo411 and the
substantive evil, whether immediate or delayed, 1999 case of Maguad v. De Guzman,412 are
is therefore necessary. However, not any similar to the case at bar - i.e., the complainant
interest of the state would suffice to prevail over is a mere stranger and the legal wife has not
the right to religious freedom as this is a registered any objection to the illicit relation,
fundamental right that enjoys a preferred there is no proof of scandal or offense to the
position in the hierarchy of rights - "the most moral sensibilities of the community in which the
inalienable and sacred of all human rights", in respondent and the partner live and work, and
the words of Jefferson.406 This right is sacred the government employee is capacitated to
for an invocation of the Free Exercise Clause is marry while the partner is not capacitated but
an appeal to a higher sovereignty. The entire has long been separated in fact. Still, the Court
constitutional order of limited government is found the government employees
premised upon an acknowledgment of such administratively liable for "disgraceful and
higher sovereignty,407 thus the Filipinos implore immoral conduct" and only considered the
the "aid of Almighty God in order to build a just foregoing circumstances to mitigate the penalty.
and humane society and establish a Respondent Escritor does not claim that there is
government." As held in Sherbert, only the error in the settled jurisprudence that an illicit
gravest abuses, endangering paramount relation constitutes disgraceful and immoral
interests can limit this fundamental right. A mere conduct for which a government employee is
balancing of interests which balances a right held liable. Nor is there an allegation that the
with just a colorable state interest is therefore not norms of morality with respect to illicit relations
appropriate. Instead, only a compelling interest have shifted towards leniency from the time
 CONSTI LAW II ACJUCO FINALS 107

these precedent cases were decided. The Court a fundamental agreement about the powers of
finds that there is no such error or shift, thus we government and their liberties and embody this
find no reason to deviate from these rulings that agreement in a constitution, hence referred to as
such illicit relationship constitutes "disgraceful the fundamental law of the land. A complete
and immoral conduct" punishable under the Civil break of this fundamental agreement such as by
Service Law. Respondent having admitted the revolution destroys the old order and creates a
alleged immoral conduct, she, like the new one.415 Similarly, in the realm of morality,
respondents in the above-cited cases, could be the breakdown of the fundamental agreement
held administratively liable. However, there is a about the manner a society’s members should
distinguishing factor that sets the case at bar behave and govern their lives would disintegrate
apart from the cited precedents, i.e., as a society. Thus, society is justified in taking steps
defense, respondent invokes religious freedom to preserve its moral code by law as it does to
since her religion, the Jehovah’s Witnesses, preserve its government and other essential
has, after thorough investigation, allowed her institutions.416 From these propositions of
conjugal arrangement with Quilapio based on Devlin, one cannot conclude that Devlin negates
the church’s religious beliefs and practices. This diversity in society for he is merely saying that in
distinguishing factor compels the Court to apply the midst of this diversity, there should
the religious clauses to the case at bar. nevertheless be a "fundamental agreement
about good and evil" that will govern how people
Without holding that religious freedom is not in in a society ought to live. His propositions, in
issue in the case at bar, both the dissenting fact, presuppose diversity hence the need to
opinion of Mme. Justice Ynares-Santiago and come to an agreement; his position also allows
the separate opinion of Mr. Justice Vitug dwell for change of morality from time to time which
more on the standards of morality than on the may be brought about by this diversity. In the
religion clauses in deciding the instant case. A same vein, a pluralistic society lays down
discussion on morality is in order. fundamental rights and principles in their
constitution in establishing and maintaining their
At base, morality refers to, in Socrates’ words, society, and these fundamental values and
"how we ought to live" and why. Any definition of principles are translated into legislation that
morality beyond Socrates’ simple formulation is governs the order of society, laws that may be
bound to offend one or another of the many rival amended from time to time. Hart’s argument
theories regarding what it means to live propounded in Mr. Justice Vitug’s separate
morally.413 The answer to the question of how opinion that, "Devlin’s view of people living in a
we ought to live necessarily considers that man single society as having common moral
does not live in isolation, but in society. Devlin foundation (is) overly simplistic" because
posits that a society is held together by a "societies have always been diverse" fails to
community of ideas, made up not only of political recognize the necessity of Devlin’s proposition in
ideas but also of ideas about the manner its a democracy. Without fundamental agreement
members should behave and govern their lives. on political and moral ideas, society will fall into
The latter are their morals; they constitute the anarchy; the agreement is necessary to the
public morality. Each member of society has existence and progress of society.
ideas about what is good and what is evil. If
people try to create a society wherein there is no In a democracy, this common agreement on
fundamental agreement about good and evil, political and moral ideas is distilled in the public
they will fail; if having established the society on square. Where citizens are free, every opinion,
common agreement, the agreement collapses, every prejudice, every aspiration, and every
the society will disintegrate. Society is kept moral discernment has access to the public
together by the invisible bonds of common square where people deliberate the order of their
thought so that if the bonds are too loose, the life together. Citizens are the bearers of opinion,
members would drift apart. A common morality including opinion shaped by, or espousing
is part of the bondage and the bondage is part of religious belief, and these citizens have equal
the price of society; and mankind, which needs access to the public square. In this
society, must pay its price.414 This design is representative democracy, the state is
parallel with the social contract in the realm of prohibited from determining which convictions
politics: people give up a portion of their liberties and moral judgments may be proposed for
to the state to allow the state to protect their public deliberation. Through a constitutionally
liberties. In a constitutional order, people make designed process, the people deliberate and
 CONSTI LAW II ACJUCO FINALS 108

decide. Majority rule is a necessary principle in

this democratic governance.417 Thus, when In Magno v. Court of Appeals, et al.,426 we
public deliberation on moral judgments is finally articulated the relationship between law and
crystallized into law, the laws will largely reflect public morality. We held that under the utilitarian
the beliefs and preferences of the majority, i.e., theory, the "protective theory" in criminal law,
the mainstream or median groups.418 "criminal law is founded upon the moral
Nevertheless, in the very act of adopting and disapprobation x x x of actions which are
accepting a constitution and the limits it specifies immoral, i.e., which are detrimental (or
-- including protection of religious freedom "not dangerous) to those conditions upon which
only for a minority, however small- not only for a depend the existence and progress of human
majority, however large- but for each of us" -- the society. This disapprobation is inevitable to the
majority imposes upon itself a self-denying extent that morality is generally founded and
ordinance. It promises not to do what it otherwise built upon a certain concurrence in the moral
could do: to ride roughshod over the dissenting opinions of all. x x x That which we call
minorities.419 In the realm of religious exercise, punishment is only an external means of
benevolent neutrality that gives room for emphasizing moral disapprobation: the method
accommodation carries out this promise, of punishment is in reality the amount of
provided the compelling interests of the state are punishment."427 Stated otherwise, there are
not eroded for the preservation of the state is certain standards of behavior or moral principles
necessary to the preservation of religious liberty. which society requires to be observed and these
That is why benevolent neutrality is necessary in form the bases of criminal law. Their breach is
a pluralistic society such as the United States an offense not only against the person injured
and the Philippines to accommodate those but against society as a whole.428 Thus, even if
minority religions which are politically powerless. all involved in the misdeed are consenting
It is not surprising that Smith is much criticized parties, such as in the case at bar, the injury
for it blocks the judicial recourse of the minority done is to the public morals and the public
for religious accommodations. interest in the moral order.429 Mr. Justice Vitug
expresses concern on this point in his separate
The laws enacted become expressions of public opinion. He observes that certain immoral acts
morality. As Justice Holmes put it, "(t)he law is which appear private and not harmful to society
the witness and deposit of our moral life."420 "In such as sexual congress "between a man and a
a liberal democracy, the law reflects social prostitute, though consensual and private, and
morality over a period of time."421 Occasionally with no injured third party, remains illegal in this
though, a disproportionate political influence country." His opinion asks whether these laws
might cause a law to be enacted at odds with on private morality are justified or they constitute
public morality or legislature might fail to repeal impingement on one’s freedom of belief.
laws embodying outdated traditional moral Discussion on private morality, however, is not
views.422 Law has also been defined as material to the case at bar for whether
"something men create in their best moments to respondent’s conduct, which constitutes
protect themselves in their worst moments."423 concubinage,430 is private in the sense that
Even then, laws are subject to amendment or there is no injured party or the offended spouse
repeal just as judicial pronouncements are consents to the concubinage, the inescapable
subject to modification and reversal to better fact is that the legislature has taken concubinage
reflect the public morals of a society at a given out of the sphere of private morals. The
time. After all, "the life of the law...has been legislature included concubinage as a crime
experience," in the words of Justice Holmes. under the Revised Penal Code and the
This is not to say though that law is all of constitutionality of this law is not being raised in
morality. Law deals with the minimum standards the case at bar. In the definition of the crime of
of human conduct while morality is concerned concubinage, consent of the injured party, i.e.,
with the maximum. A person who regulates his the legal spouse, does not alter or negate the
conduct with the sole object of avoiding crime unlike in rape431 where consent of the
punishment under the law does not meet the supposed victim negates the crime. If at all, the
higher moral standards set by society for him to consent or pardon of the offended spouse in
be called a morally upright person.424 Law also concubinage negates the prosecution of the
serves as "a helpful starting point for thinking action,432 but does not alter the legislature’s
about a proper or ideal public morality for a characterization of the act as a moral
society"425 in pursuit of moral progress. disapprobation punishable by law. The separate
 CONSTI LAW II ACJUCO FINALS 109

opinion states that, "(t)he ponencia has taken wrongs which cause damages. When it is
pains to distinguish between secular and private reflected that while codes of law and statutes
morality, and reached the conclusion that the have changed from age to age, the conscience
law, as an instrument of the secular State should of man has remained fixed to its ancient
only concern itself with secular morality." The moorings, one can not but feel that it is safe and
Court does not draw this distinction in the case salutary to transmute, as far as may be, moral
at bar. The distinction relevant to the case is not, norms into legal rules, thus imparting to every
as averred and discussed by the separate legal system that enduring quality which ought to
opinion, "between secular and private morality," be one of its superlative attributes.
but between public and secular morality on the
one hand, and religious morality on the other, Furthermore, there is no belief of more baneful
which will be subsequently discussed. consequence upon the social order than that a
person may with impunity cause damage to his
Not every moral wrong is foreseen and punished fellow-men so long as he does not break any law
by law, criminal or otherwise. We recognized this of the State, though he may be defying the most
reality in Velayo, et al. v. Shell Co. of the sacred postulates of morality. What is more, the
Philippine Islands, et al., where we explained victim loses faith in the ability of the government
that for those wrongs which are not punishable to afford him protection or relief.
by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing A provision similar to the one under
with Human Relations, provide for the consideration is embodied in article 826 of the
recognition of the wrong and the concomitant German Civil Code.433 (emphases supplied)
punishment in the form of damages. Articles 19
and 21 provide, viz: The public morality expressed in the law is
necessarily secular for in our constitutional
Art. 19. Any person must, in the exercise of his order, the religion clauses prohibit the state from
rights and in the performance of his duties, act establishing a religion, including the morality it
with justice, give everyone his due and observe sanctions. Religious morality proceeds from a
honesty and good faith. person’s "views of his relations to His Creator
and to the obligations they impose of reverence
xxx xxx xxx to His being and character and obedience to His
Will," in accordance with this Court’s definition of
Art. 21. Any person who willfully causes loss or religion in American Bible Society citing Davis.
injury to another in a manner that is contrary to Religion also dictates "how we ought to live" for
morals, good customs or public policy shall the nature of religion is not just to know, but
compensate the latter for the damage. often, to act in accordance with man’s "views of
(emphasis supplied) his relations to His Creator."434 But the
Establishment Clause puts a negative bar
We then cited in Velayo the Code Commission’s against establishment of this morality arising
comment on Article 21: from one religion or the other, and implies the
affirmative "establishment" of a civil order for the
Thus at one stroke, the legislator, if the foregoing resolution of public moral disputes. This
rule is approved (as it was approved), would agreement on a secular mechanism is the price
vouchsafe adequate legal remedy for that untold of ending the "war of all sects against all"; the
numbers of moral wrongs which is impossible for establishment of a secular public moral order is
human foresight to provide for specifically in the the social contract produced by religious
statutes. truce.435

But, it may be asked, would this proposed article Thus, when the law speaks of "immorality" in the
obliterate the boundary line between morality Civil Service Law or "immoral" in the Code of
and law? The answer is that, in the last analysis, Professional Responsibility for lawyers436 , or
every good law draws its breath of life from "public morals" in the Revised Penal Code,437
morals, from those principles which are written or "morals" in the New Civil Code,438 or "moral
with words of fire in the conscience of man. If this character" in the Constitution,439 the distinction
premise is admitted, then the proposed rule is a between public and secular morality on the one
prudent earnest of justice in the face of the hand, and religious morality, on the other, should
impossibility of enumerating, one by one, all be kept in mind.440 The morality referred to in
 CONSTI LAW II ACJUCO FINALS 110

the law is public and necessarily secular, not the law will be struck down for being offensive of
religious as the dissent of Mr. Justice Carpio the religion clauses as in Church of the Lukumi
holds. "Religious teachings as expressed in Babalu Aye, Inc. where the U.S. Supreme Court
public debate may influence the civil public order invalidated an ordinance prohibiting animal
but public moral disputes may be resolved only sacrifice of the Santeria. Recognizing the
on grounds articulable in secular terms."441 religious nature of the Filipinos and the elevating
Otherwise, if government relies upon religious influence of religion in society, however, the
beliefs in formulating public policies and morals, Philippine constitution’s religion clauses
the resulting policies and morals would require prescribe not a strict but a benevolent neutrality.
conformity to what some might regard as Benevolent neutrality recognizes that
religious programs or agenda. The non- government must pursue its secular goals and
believers would therefore be compelled to interests but at the same time strives to uphold
conform to a standard of conduct buttressed by religious liberty to the greatest extent possible
a religious belief, i.e., to a "compelled religion," within flexible constitutional limits. Thus,
anathema to religious freedom. Likewise, if although the morality contemplated by laws is
government based its actions upon religious secular, benevolent neutrality could allow for
beliefs, it would tacitly approve or endorse that accommodation of morality based on religion,
belief and thereby also tacitly disapprove provided it does not offend compelling state
contrary religious or non-religious views that interests.
would not support the policy. As a result,
government will not provide full religious Mr. Justice Vitug’s separate opinion embraces
freedom for all its citizens, or even make it the benevolent neutrality approach when it
appear that those whose beliefs are disapproved states that in deciding the case at bar, the
are second-class citizens. Expansive religious approach should consider that, "(a)s a rule . . .
freedom therefore requires that government be moral laws are justified only to the extent that
neutral in matters of religion; governmental they directly or indirectly serve to protect the
reliance upon religious justification is interests of the larger society. It is only where
inconsistent with this policy of neutrality.442 their rigid application would serve to obliterate
the value which society seeks to uphold, or
In other words, government action, including its defeat the purpose for which they are enacted
proscription of immorality as expressed in would, a departure be justified." In religion
criminal law like concubinage, must have a clause parlance, the separate opinion holds that
secular purpose. That is, the government laws of general applicability governing morals
proscribes this conduct because it is should have a secular purpose of directly or
"detrimental (or dangerous) to those conditions indirectly protecting the interests of the state. If
upon which depend the existence and progress the strict application of these laws (which are the
of human society" and not because the conduct Civil Service Law and the laws on marriage)
is proscribed by the beliefs of one religion or the would erode the secular purposes of the law
other. Although admittedly, moral judgments (which the separate opinion identifies as
based on religion might have a compelling upholding the sanctity of marriage and the
influence on those engaged in public family), then in a benevolent neutrality
deliberations over what actions would be framework, an accommodation of the
considered a moral disapprobation punishable unconventional religious belief and practice
by law. After all, they might also be adherents of (which the separate opinion holds should be
a religion and thus have religious opinions and respected on the ground of freedom of belief)
moral codes with a compelling influence on that would promote the very same secular
them; the human mind endeavors to regulate the purpose of upholding the sanctity of marriage
temporal and spiritual institutions of society in a and family through the Declaration Pledging
uniform manner, harmonizing earth with Faithfulness that makes the union binding and
heaven.443 Succinctly put, a law could be honorable before God and men, is required by
religious or Kantian or Aquinian or utilitarian in the Free Exercise Clause. The separate opinion
its deepest roots, but it must have an articulable then makes a preliminary discussion of the
and discernible secular purpose and justification values society seeks to protect in adhering to
to pass scrutiny of the religion clauses. monogamous marriage, but concludes that
Otherwise, if a law has an apparent secular these values and the purposes of the applicable
purpose but upon closer examination shows a laws should be thoroughly examined and
discriminatory and prohibitory religious purpose, evidence in relation thereto presented in the
 CONSTI LAW II ACJUCO FINALS 111

OCA. The accommodation approach in the case constitutional order are designed in such a way
at bar would also require a similar discussion of that when religious belief flows into speech and
these values and presentation of evidence conduct that step out of the religious sphere and
before the OCA by the state that seeks to protect overlap with the secular and public realm, the
its interest on marriage and opposes the state has the power to regulate, prohibit and
accommodation of the unconventional religious penalize these expressions and embodiments of
belief and practice regarding marriage. belief insofar as they affect the interests of the
state. The state’s inroad on religion exercise in
The distinction between public and secular excess of this constitutional design is prohibited
morality as expressed - albeit not exclusively - in by the religion clauses; the Old World, European
the law, on the one hand, and religious morality, and American history narrated above bears out
on the other, is important because the the wisdom of this proscription.
jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement Having distinguished between public and
the Court makes in the case at bar should be secular morality and religious morality, the more
understood only in this realm where it has difficult task is determining which immoral acts
authority. More concretely, should the Court under this public and secular morality fall under
declare respondent’s conduct as immoral and the phrase "disgraceful and immoral conduct" for
hold her administratively liable, the Court will be which a government employee may be held
holding that in the realm of public morality, her administratively liable. The line is not easy to
conduct is reprehensible or there are state draw for it is like "a line that divides land and sea,
interests overriding her religious freedom. For as a coastline of irregularities and
long as her conduct is being judged within this indentations."445 But the case at bar does not
realm, she will be accountable to the state. But require us to comprehensively delineate
in so ruling, the Court does not and cannot say between those immoral acts for which one may
that her conduct should be made reprehensible be held administratively liable and those to
in the realm of her church where it is presently which administrative liability does not attach. We
sanctioned and that she is answerable for her need not concern ourselves in this case
immorality to her Jehovah God nor that other therefore whether "laziness, gluttony, vanity,
religions prohibiting her conduct are correct. On selfishness, avarice and cowardice" are immoral
the other hand, should the Court declare her acts which constitute grounds for administrative
conduct permissible, the Court will be holding liability. Nor need we expend too much energy
that under her unique circumstances, public grappling with the propositions that not all
morality is not offended or that upholding her immoral acts are illegal or not all illegal acts are
religious freedom is an interest higher than immoral, or different jurisdictions have different
upholding public morality thus her conduct standards of morality as discussed by the
should not be penalized. But the Court is not dissents and separate opinions, although these
ruling that the tenets and practice of her religion observations and propositions are true and
are correct nor that other churches which do not correct. It is certainly a fallacious argument that
allow respondent’s conjugal arrangement should because there are exceptions to the general rule
likewise allow such conjugal arrangement or that the "law is the witness and deposit of our
should not find anything immoral about it and moral life," then the rule is not true; in fact, that
therefore members of these churches are not there are exceptions only affirms the truth of the
answerable for immorality to their Supreme rule. Likewise, the observation that morality is
Being. The Court cannot speak more than what relative in different jurisdictions only affirms the
it has authority to say. In Ballard, the U.S. truth that there is morality in a particular
Supreme Court held that courts cannot inquire jurisdiction; without, however, discounting the
about the truth of religious beliefs. Similarly, in truth that underneath the moral relativism are
Fonacier, this Court declared that matters certain moral absolutes such as respect for life
dealing with "faith, practice, doctrine, form of and truth-telling, without which no society will
worship, ecclesiastical law, custom and rule of a survive. Only one conduct is in question before
church…are unquestionably ecclesiastical this Court, i.e., the conjugal arrangement of a
matters which are outside the province of the government employee whose partner is legally
civil courts."444 But while the state, including the married to another which Philippine law and
Court, accords such deference to religious belief jurisprudence consider both immoral and illegal.
and exercise which enjoy protection under the Lest the Court inappropriately engage in the
religious clauses, the social contract and the impossible task of prescribing comprehensively
 CONSTI LAW II ACJUCO FINALS 112

how one ought to live, the Court must focus its barbarism,"449 "contrary to the spirit of
attention upon the sole conduct in question Christianity and of the civilization which
before us. Christianity has produced in the Western
world,"450 and thus punishable by law.
In interpreting "disgraceful and immoral
conduct," the dissenting opinion of Mme. Justice The Cleveland standard, however, does not
Ynares-Santiago groped for standards of throw light to the issue in the case at bar. The
morality and stated that the "ascertainment of pronouncements of the U.S. Supreme Court that
what is moral or immoral calls for the discovery polygamy is intrinsically "odious" or "barbaric" do
of contemporary community standards" but did not apply in the Philippines where Muslims, by
not articulate how these standards are to be law, are allowed to practice polygamy. Unlike in
ascertained. Instead, it held that, "(f)or those in Cleveland, there is no jurisprudence in
the service of the Government, provisions of law Philippine jurisdiction holding that the defense of
and court precedents . . . have to be religious freedom of a member of the Jehovah’s
considered." It identified the Civil Service Law Witnesses under the same circumstances as
and the laws on adultery and concubinage as respondent will not prevail over the laws on
laws which respondent’s conduct has offended adultery, concubinage or some other law. We
and cited a string of precedents where a cannot summarily conclude therefore that her
government employee was found guilty of conduct is likewise so "odious" and "barbaric" as
committing a "disgraceful and immoral conduct" to be immoral and punishable by law.
for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute While positing the view that the resolution of the
that under settled jurisprudence, respondent’s case at bar lies more on determining the
conduct constitutes "disgraceful and immoral applicable moral standards and less on religious
conduct." However, the cases cited by the freedom, Mme. Justice Ynares-Santiago’s
dissent do not involve the defense of religious dissent nevertheless discussed respondent’s
freedom which respondent in the case at bar plea of religious freedom and disposed of this
invokes. Those cited cases cannot therefore defense by stating that "(a) clear and present
serve as precedents in settling the issue in the danger of a substantive evil, destructive to public
case at bar. morals, is a ground for the reasonable regulation
of the free exercise and enjoyment of religious
Mme. Justice Ynares-Santiago’s dissent also profession. (American Bible Society v. City of
cites Cleveland v. United States446 in laying Manila, 101 Phil. 386 [1957]). In addition to the
down the standard of morality, viz: "(w)hether an destruction of public morals, the substantive evil
act is immoral within the meaning of the statute in this case is the tearing down of morality, good
is not to be determined by respondent’s concept order, and discipline in the judiciary." However,
of morality. The law provides the standard; the the foregoing discussion has shown that the
offense is complete if respondent intended to "clear and present danger" test that is usually
perform, and did in fact perform, the act which it employed in cases involving freedom of
condemns." The Mann Act under consideration expression is not appropriate to the case at bar
in the Cleveland case declares as an offense the which involves purely religious conduct. The
transportation in interstate commerce of "any dissent also cites Reynolds in supporting its
woman or girl for the purpose of prostitution or conclusion that respondent is guilty of
debauchery, or for any other immoral "disgraceful and immoral conduct." The
purpose."447 The resolution of that case hinged Reynolds ruling, however, was reached with a
on the interpretation of the phrase "immoral strict neutrality approach, which is not the
purpose." The U.S. Supreme Court held that the approach contemplated by the Philippine
petitioner Mormons’ act of transporting at least constitution. As discussed above, Philippine
one plural wife whether for the purpose of jurisdiction adopts benevolent neutrality in
cohabiting with her, or for the purpose of aiding interpreting the religion clauses.
another member of their Mormon church in such
a project, was covered by the phrase "immoral In the same vein, Mr. Justice Carpio’s dissent
purpose." In so ruling, the Court relied on which employs strict neutrality does not reflect
Reynolds which held that the Mormons’ practice the constitutional intent of employing benevolent
of polygamy, in spite of their defense of religious neutrality in interpreting the Philippine religion
freedom, was "odious among the northern and clauses. His dissent avers that respondent
western nations of Europe,"448 "a return to should be held administratively liable not for
 CONSTI LAW II ACJUCO FINALS 113

"disgraceful and immoral conduct" but "conduct general standards of morality. The
prejudicial to the best interest of the service" as constitutionality of P.D. No. 1083 when
she is a necessary co-accused of her partner in measured against the Establishment Clause
concubinage. The dissent stresses that being a was not raised as an issue in the Sulu Islamic
court employee, her open violation of the law is case. Thus, the Court did not determine whether
prejudicial to the administration of justice. Firstly, P.D. No. 1083 suffered from a constitutional
the dissent offends due process as respondent infirmity and instead relied on the provision
was not given an opportunity to defend herself excepting the challenged Muslim conduct from
against the charge of "conduct prejudicial to the the crime of bigamy in holding that the
best interest of the service." In addition, there is challenged act is not immoral by Muslim
no evidence of the alleged prejudice to the best standards. In contradistinction, in the case at
interest of the service. Most importantly, the bar, there is no similar law which the Court can
dissent concludes that respondent’s plea of apply as basis for treating respondent’s conduct
religious freedom cannot prevail without so as an exception to the prevailing jurisprudence
much as employing a test that would balance on illicit relations of civil servants. Instead, the
respondent’s religious freedom and the state’s Free Exercise Clause is being invoked to justify
interest at stake in the case at bar. The foregoing exemption.
discussion on the doctrine of religious freedom,
however, shows that with benevolent neutrality B. Application of Benevolent Neutrality and the
as a framework, the Court cannot simply reject Compelling State Interest Test to the Case at
respondent’s plea of religious freedom without Bar
even subjecting it to the "compelling state
interest" test that would balance her freedom The case at bar being one of first impression, we
with the paramount interests of the state. The now subject the respondent’s claim of religious
strict neutrality employed in the cases the freedom to the "compelling state interest" test
dissent cites -Reynolds, Smith and People v. from a benevolent neutrality stance - i.e.
Bitdu decided before the 1935 Constitution entertaining the possibility that respondent’s
which unmistakably shows adherence to claim to religious freedom would warrant carving
benevolent neutrality - is not contemplated by out an exception from the Civil Service Law;
our constitution. necessarily, her defense of religious freedom will
be unavailing should the government succeed in
Neither is Sulu Islamic Association of Masjid demonstrating a more compelling state interest.
Lambayong v. Judge Nabdar J. Malik451 cited
in Mr. Justice Carpio’s dissent decisive of the In applying the test, the first inquiry is whether
immorality issue in the case at bar. In that case, respondent’s right to religious freedom has been
the Court dismissed the charge of immorality burdened. There is no doubt that choosing
against a Tausug judge for engaging in an between keeping her employment and
adulterous relationship with another woman with abandoning her religious belief and practice and
whom he had three children because "it (was) family on the one hand, and giving up her
not ‘immoral’ by Muslim standards for Judge employment and keeping her religious practice
Malik to marry a second time while his first and family on the other hand, puts a burden on
marriage (existed)." Putting the quoted portion in her free exercise of religion. In Sherbert, the
its proper context would readily show that the Court found that Sherbert’s religious exercise
Sulu Islamic case does not provide a precedent was burdened as the denial of unemployment
to the case at bar. Immediately prior to the benefits "forces her to choose between following
portion quoted by the dissent, the Court the precepts of her religion and forfeiting
stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, benefits, on the one hand, and abandoning one
otherwise known as the Code of Muslim of the precepts of her religion in order to accept
Personal Laws of the Philippines, provides that work, on the other hand." The burden on
the penal laws relative to the crime of bigamy respondent in the case at bar is even greater as
‘shall not apply to a person married x x x under the price she has to pay for her employment is
Muslim Law,’ it is not ‘immoral’ by Muslim not only her religious precept but also her family
standards for Judge Malik to marry a second which, by the Declaration Pledging Faithfulness,
time while his first marriage exists."452 It was by stands "honorable before God and men."
law, therefore, that the Muslim conduct in
question was classified as an exception to the The second step is to ascertain respondent’s
crime of bigamy and thus an exception to the sincerity in her religious belief. Respondent
 CONSTI LAW II ACJUCO FINALS 114

appears to be sincere in her religious belief and discharge in the Court’s use of the "compelling
practice and is not merely using the "Declaration state interest" test. We note that the OCA found
of Pledging Faithfulness" to avoid punishment respondent’s defense of religious freedom
for immorality. She did not secure the unavailing in the face of the Court’s ruling in
Declaration only after entering the judiciary Dicdican v. Fernan, et al., viz:
where the moral standards are strict and
defined, much less only after an administrative It bears emphasis that the image of a court of
case for immorality was filed against her. The justice is mirrored in the conduct, official and
Declaration was issued to her by her otherwise, of the personnel who work thereat,
congregation after ten years of living together from the judge to the lowest of its personnel.
with her partner, Quilapio, and ten years before Court personnel have been enjoined to adhere
she entered the judiciary. Ministers from her to the exacting standards of morality and
congregation testified on the authenticity of the decency in their professional and private
Jehovah’s Witnesses’ practice of securing a conduct in order to preserve the good name and
Declaration and their doctrinal or scriptural basis integrity of the courts of justice.
for such a practice. As the ministers testified, the
Declaration is not whimsically issued to avoid It is apparent from the OCA’s reliance upon this
legal punishment for illicit conduct but to make ruling that the state interest it upholds is the
the "union" of their members under respondent’s preservation of the integrity of the judiciary by
circumstances "honorable before God and maintaining among its ranks a high standard of
men." It is also worthy of notice that the Report morality and decency. However, there is nothing
and Recommendation of the investigating judge in the OCA’s memorandum to the Court that
annexed letters453 of the OCA to the demonstrates how this interest is so compelling
respondent regarding her request to be exempt that it should override respondent’s plea of
from attending the flag ceremony after Circular religious freedom nor is it shown that the means
No. 62-2001 was issued requiring attendance in employed by the government in pursuing its
the flag ceremony. The OCA’s letters were not interest is the least restrictive to respondent’s
submitted by respondent as evidence but religious exercise.
annexed by the investigating judge in explaining
that he was caught in a dilemma whether to find Indeed, it is inappropriate for the complainant, a
respondent guilty of immorality because the private person, to present evidence on the
Court Administrator and Deputy Court compelling interest of the state. The burden of
Administrator had different positions regarding evidence should be discharged by the proper
respondent’s request for exemption from the flag agency of the government which is the Office of
ceremony on the ground of the Jehovah’s the Solicitor General. To properly settle the issue
Witnesses’ contrary belief and practice. in the case at bar, the government should be
Respondent’s request for exemption from the given the opportunity to demonstrate the
flag ceremony shows her sincerity in practicing compelling state interest it seeks to uphold in
the Jehovah’s Witnesses’ beliefs and not using opposing the respondent’s stance that her
them merely to escape punishment. She is a conjugal arrangement is not immoral and
practicing member of the Jehovah’s Witnesses punishable as it comes within the scope of free
and the Jehovah ministers testified that she is a exercise protection. Should the Court prohibit
member in good standing. Nevertheless, should and punish her conduct where it is protected by
the government, thru the Solicitor General, want the Free Exercise Clause, the Court’s action
to further question the respondent’s sincerity would be an unconstitutional encroachment of
and the centrality of her practice in her faith, it her right to religious freedom.454 We cannot
should be given the opportunity to do so. The therefore simply take a passing look at
government has not been represented in the respondent’s claim of religious freedom, but
case at bar from its incipience until this point. must instead apply the "compelling state
interest" test. The government must be heard on
In any event, even if the Court deems sufficient the issue as it has not been given an opportunity
respondent’s evidence on the sincerity of her to discharge its burden of demonstrating the
religious belief and its centrality in her faith, the state’s compelling interest which can override
case at bar cannot still be decided using the respondent’s religious belief and practice. To
"compelling state interest" test. The case at bar repeat, this is a case of first impression where
is one of first impression, thus the parties were we are applying the "compelling state interest"
not aware of the burdens of proof they should test in a case involving purely religious conduct.
 CONSTI LAW II ACJUCO FINALS 115

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
respondent’s claimed religious belief and
practice; (b) to present evidence on the state’s
"compelling interest" to override respondent’s
religious belief and practice; and (c) to show that
the means the state adopts in pursuing its
interest is the least restrictive to respondent’s
religious freedom. The rehearing should be
concluded thirty (30) days from the Office of the
Court Administrator’s receipt of this Decision.

SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 116

[G.R. No. 153888. July 9, 2003] the Philippine Patent Office under Patent No. 4-
2000-03664.
ISLAMIC DAWAH COUNCIL OF THE
PHILIPPINES, INC., herein represented by On October 26, 2001, respondent Office of the
PROF. ABDULRAFIH H. SAYEDY, petitioner, Executive Secretary issued EO 46[5] creating
vs. OFFICE OF THE EXECUTIVE the Philippine Halal Certification Scheme and
SECRETARY of the Office of the President of designating respondent OMA to oversee its
the Philippines, herein represented by HON. implementation. Under the EO, respondent
ALBERTO G. ROMULO, Executive Secretary, OMA has the exclusive authority to issue halal
and the OFFICE ON MUSLIM AFFAIRS, certificates and perform other related regulatory
herein represented by its Executive Director, activities.
HABIB MUJAHAB HASHIM, respondents.
On May 8, 2002, a news article entitled OMA
DECISION Warns NGOs Issuing Illegal Halal Certification
was published in the Manila Bulletin, a
CORONA, J.: newspaper of general circulation. In said article,
OMA warned Muslim consumers to buy only
Before us is a petition for prohibition filed by products with its official halal certification since
petitioner Islamic Dawah Council of the those without said certification had not been
Philippines, Inc. (IDCP) praying for the subjected to careful analysis and therefore could
declaration of nullity of Executive Order (EO) 46, contain pork or its derivatives. Respondent OMA
s. 2001 and the prohibition of herein also sent letters to food manufacturers asking
respondents Office of the Executive Secretary them to secure the halal certification only from
and Office of Muslim Affairs (OMA) from OMA lest they violate EO 46 and RA 4109.[6] As
implementing the subject EO. a result, petitioner lost revenues after food
manufacturers stopped securing certifications
Petitioner IDCP, a corporation that operates from it.
under Department of Social Welfare and
Development License No. SB-01-085, is a non- Hence, this petition for prohibition.
governmental organization that extends
voluntary services to the Filipino people, Petitioner contends that the subject EO violates
especially to Muslim communities. It claims to be the constitutional provision on the separation of
a federation of national Islamic organizations Church and State.[7] It is unconstitutional for the
and an active member of international government to formulate policies and guidelines
organizations such as the Regional Islamic on the halal certification scheme because said
Dawah Council of Southeast Asia and the scheme is a function only religious
Pacific (RISEAP)[1] and The World Assembly of organizations, entity or scholars can lawfully and
Muslim Youth. The RISEAP accredited validly perform for the Muslims. According to
petitioner to issue halal[2] certifications in the petitioner, a food product becomes halal only
Philippines. Thus, among the functions after the performance of Islamic religious ritual
petitioner carries out is to conduct seminars, and prayer. Thus, only practicing Muslims are
orient manufacturers on halal food and issue qualified to slaughter animals for food. A
halal certifications to qualified products and government agency like herein respondent OMA
manufacturers. cannot therefore perform a religious function like
certifying qualified food products as halal.
Petitioner alleges that, on account of the actual
need to certify food products as halal and also Petitioner also maintains that the respondents
due to halal food producers request, petitioner violated Section 10, Article III of the 1987
formulated in 1995 internal rules and procedures Constitution which provides that (n)o law
based on the Quran[3] and the Sunnah[4] for the impairing the obligation of contracts, shall be
analysis of food, inspection thereof and issuance passed. After the subject EO was implemented,
of halal certifications. In that same year, food manufacturers with existing contracts with
petitioner began to issue, for a fee, certifications petitioner ceased to obtain certifications from the
to qualified products and food manufacturers. latter.
Petitioner even adopted for use on its halal
certificates a distinct sign or logo registered in
 CONSTI LAW II ACJUCO FINALS 117

Moreover, petitioner argues that the subject EO conscience directs, to profess his beliefs, and to
violates Sections 15 and 16 of Article XIII of the live as he believes he ought to live, consistent
1987 Constitution which respectively provide: with the liberty of others and with the common
good.[10]
ROLE AND RIGHTS OF PEOPLES
ORGANIZATIONS Without doubt, classifying a food product as
halal is a religious function because the
Sec. 15. The State shall respect the role of standards used are drawn from the Quran and
independent peoples organizations to enable Islamic beliefs. By giving OMA the exclusive
the people to pursue and protect, within the power to classify food products as halal, EO 46
democratic framework, their legitimate and encroached on the religious freedom of Muslim
collective interests and aspirations through organizations like herein petitioner to interpret
peaceful and lawful means. for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself
Peoples organizations are bona fide the task of issuing halal certifications, the State
associations of citizens with demonstrated has in effect forced Muslims to accept its own
capacity to promote the public interest and with interpretation of the Quran and Sunnah on halal
identifiable leadership, membership, and food.
structure.
To justify EO 46s intrusion into the subject
Sec. 16. The rights of the people and their religious activity, the Solicitor General argues
organizations to effective and reasonable that the freedom of religion is subservient to the
participation at all levels of social, political, and police power of the State. By delegating to OMA
economic decision-making shall not be the authority to issue halal certifications, the
abridged. The State shall, by law, facilitate, the government allegedly seeks to protect and
establishment of adequate consultation promote the muslim Filipinos right to health, and
mechanisms. to instill health consciousness in them.

According to petitioner, the subject EO was We disagree.

issued with utter haste and without even
consulting Muslim peoples organizations like Only the prevention of an immediate and grave
petitioner before it became effective. danger to the security and welfare of the
community can justify the infringement of
We grant the petition. religious freedom.[11] If the government fails to
show the seriousness and immediacy of the
OMA was created in 1981 through Executive threat, State intrusion is constitutionally
Order No. 697 (EO 697) to ensure the integration unacceptable. In a society with a democratic
of Muslim Filipinos into the mainstream of framework like ours, the State must minimize its
Filipino society with due regard to their beliefs, interference with the affairs of its citizens and
customs, traditions, and institutions.[8] OMA instead allow them to exercise reasonable
deals with the societal, legal, political and freedom of personal and religious activity.
economic concerns of the Muslim community as
a national cultural community and not as a In the case at bar, we find no compelling
religious group. Thus, bearing in mind the justification for the government to deprive
constitutional barrier between the Church and Muslim organizations, like herein petitioner, of
State, the latter must make sure that OMA does their religious right to classify a product as halal,
not intrude into purely religious matters lest it even on the premise that the health of Muslim
violate the non-establishment clause and the Filipinos can be effectively protected by
free exercise of religion provision found in Article assigning to OMA the exclusive power to issue
III, Section 5 of the 1987 Constitution.[9] halal certifications. The protection and
promotion of the Muslim Filipinos right to health
Freedom of religion was accorded preferred are already provided for in existing laws and
status by the framers of our fundamental law. ministered to by government agencies charged
And this Court has consistently affirmed this with ensuring that food products released in the
preferred status, well aware that it is "designed market are fit for human consumption, properly
to protect the broadest possible liberty of labeled and safe. Unlike EO 46, these laws do
conscience, to allow each man to believe as his
 CONSTI LAW II ACJUCO FINALS 118

not encroach on the religious freedom of

Muslims. Through the laws on food safety and quality,
therefore, the State indirectly aids Muslim
Section 48(4) of the Administrative Code of 1987 consumers in differentiating food from non-food
gives to the National Meat Inspection products. The NMIC guarantees that the meat
Commission (NMIC) of the Department of sold in the market has been thoroughly
Agriculture (DOA) the power to inspect inspected and fit for consumption. Meanwhile,
slaughtered animals intended for human BFD ensures that food products are properly
consumption to ensure the safety of the meat categorized and have passed safety and quality
released in the market. Another law, RA 7394, standards. Then, through the labeling provisions
otherwise known as The Consumer Act of 1992, enforced by the DTI, Muslim consumers are
gives to certain government departments the adequately apprised of the products that contain
duty to protect the interests of the consumer, substances or ingredients that, according to their
promote his general welfare and to establish Islamic beliefs, are not fit for human intake.
standards of conduct for business and These are the non-secular steps put in place by
industry.[12] To this end, a food product, before the State to ensure that the Muslim consumers
its distribution to the market, is required to right to health is protected. The halal
secure the Philippine Standard Certification certifications issued by petitioner and similar
Mark after the concerned department inspects organizations come forward as the official
and certifies its compliance with quality and religious approval of a food product fit for Muslim
safety standards.[13] consumption.

One such government agency designated by RA We do not share respondents apprehension that
7394 is the Bureau of Food and Drugs (BFD) of the absence of a central administrative body to
the Department of Health (DOH). Under Article regulate halal certifications might give rise to
22 of said law, BFD has the duty to promulgate schemers who, for profit, will issue certifications
and enforce rules and regulations fixing and for products that are not actually halal. Aside
establishing a reasonable definition and from the fact that Muslim consumers can
standard of identity, a standard of quality and a actually verify through the labels whether a
standard of fill of containers for food. The BFD product contains non-food substances, we
also ensures that food products released in the believe that they are discerning enough to know
market are not adulterated.[14] who the reliable and competent certifying
organizations in their community are. Before
Furthermore, under Article 48 of RA 7394, the purchasing a product, they can easily avert this
Department of Trade and Industry (DTI) is perceived evil by a diligent inquiry on the
tasked to protect the consumer against reliability of the concerned certifying
deceptive, unfair and unconscionable sales acts organization.
or practices as defined in Article 50.[15] DTI also
enforces compulsory labeling and fair packaging WHEREFORE, the petition is GRANTED.
to enable the consumer to obtain accurate Executive Order 46, s. 2001, is hereby declared
information as to the nature, quality and quantity NULL AND VOID. Consequently, respondents
of the contents of consumer products and to are prohibited from enforcing the same.
facilitate his comparison of the value of such
products.[16] SO ORDERED.

With these regulatory bodies given detailed

functions on how to screen and check the quality
and safety of food products, the perceived
danger against the health of Muslim and non-
Muslim Filipinos alike is totally avoided. Of great
help are the provisions on labeling of food
products (Articles 74 to 85)[17] of RA 7394. In
fact, through these labeling provisions, the State
ably informs the consuming public of the
contents of food products released in the
market. Stiff sanctions are imposed on violators
of said labeling requirements.
 CONSTI LAW II ACJUCO FINALS 119

G.R. No. L-45459 March 13, 1937 excercising functions judicial or ministerial,
which are without or in excess of the jurisdiction
GREGORIO AGLIPAY, petitioner, of such tribunal, corporation, board, or person, .
vs. . . ." (Secs. 516 and 226, Code of Civil
JUAN RUIZ, respondent. Procedure.) The terms "judicial" and "ministerial"
used with reference to "functions" in the statute
Vicente Sotto for petitioner. are undoubtedly comprehensive and include the
Office of the Solicitor-General Tuason for challenged act of the respondent Director of
respondent. Posts in the present case, which act because
alleged to be violative of the Constitution is a
LAUREL, J.: fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is
The petitioner, Mons. Gregorio Aglipay, that the writ of prohibition is not confined
Supreme Head of the Philippine Independent exclusively to courts or tribunals to keep them
Church, seeks the issuance from this court of a within the limits of their own jurisdiction and to
writ of prohibition to prevent the respondent prevent them from encroaching upon the
Director of Posts from issuing and selling jurisdiction of other tribunals, but will issue, in
postage stamps commemorative of the Thirty- appropriate cases, to an officer or person whose
third International Eucharistic Congress. acts are without or in excess of his authority. Not
infrequently, "the writ is granted, where it is
In May, 1936, the Director of Posts announced necessary for the orderly administration of
in the dailies of Manila that he would order the justice, or to prevent the use of the strong arm of
issues of postage stamps commemorating the the law in an oppressive or vindictive manner, or
celebration in the City of Manila of the Thirty- a multiplicity of actions." (Dimayuga and Fajardo
third international Eucharistic Congress, vs. Fernandez [1923], 43 Phil., 304, 307.)
organized by the Roman Catholic Church. The
petitioner, in the fulfillment of what he considers The more important question raised refers to the
to be a civic duty, requested Vicente Sotto, Esq., alleged violation of the Constitution by the
member of the Philippine Bar, to denounce the respondent in issuing and selling postage
matter to the President of the Philippines. In stamps commemorative of the Thirty-third
spite of the protest of the petitioner's attorney, International Eucharistic Congress. It is alleged
the respondent publicly announced having sent that this action of the respondent is violative of
to the United States the designs of the postage the provisions of section 23, subsection 3, Article
stamps for printing as follows: VI, of the Constitution of the Philippines, which
provides as follows:
"In the center is chalice, with grape vine and
stalks of wheat as border design. The stamps No public money or property shall ever be
are blue, green, brown, cardinal red, violet and appropriated, applied, or used, directly or
orange, 1 inch by 1,094 inches. The indirectly, for the use, benefit, or support of any
denominations are for 2, 6, 16, 20, 36 and 50 sect, church, denomination, secretarian,
centavos." The said stamps were actually issued institution, or system of religion, or for the use,
and sold though the greater part thereof, to this benefit, or support of any priest, preacher,
day, remains unsold. The further sale of the minister, or other religious teacher or dignitary
stamps is sought to be prevented by the as such, except when such priest, preacher,
petitioner herein. minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or
The Solicitor-General contends that the writ of leprosarium.
prohibition is not the proper legal remedy in the
instant case, although he admits that the writ The prohibition herein expressed is a direct
may properly restrain ministerial functions. corollary of the principle of separation of church
While, generally, prohibition as an extraordinary and state. Without the necessity of adverting to
legal writ will not issue to restrain or control the the historical background of this principle in our
performance of other than judicial or quasi- country, it is sufficient to say that our history, not
judicial functions (50 C. J., 6580, its issuance to speak of the history of mankind, has taught us
and enforcement are regulated by statute and in that the union of church and state is prejudicial
this jurisdiction may issue to . . . inferior tribunals, to both, for ocassions might arise when the
corporations, boards, or persons, whether estate will use the church, and the church the
 CONSTI LAW II ACJUCO FINALS 120

state, as a weapon in the furtherance of their religious instruction in the public schools is by
recognized this principle of separation of church constitutional mandate allowed (sec. 5, Art. XIII,
and state in the early stages of our constitutional Constitution of the Philippines, in relation to sec.
development; it was inserted in the Treaty of 928, Adm. Code). Thursday and Friday of Holy
Paris between the United States and Spain of Week, Thanksgiving Day, Christmas Day, and
December 10, 1898, reiterated in President Sundays and made legal holidays (sec. 29,
McKinley's Instructions of the Philippine Adm. Code) because of the secular idea that
Commission, reaffirmed in the Philippine Bill of their observance is conclusive to beneficial
1902 and in the autonomy Act of August 29, moral results. The law allows divorce but
1916, and finally embodied in the constitution of punishes polygamy and bigamy; and certain
the Philippines as the supreme expression of the crimes against religious worship are considered
Filipino people. It is almost trite to say now that crimes against the fundamental laws of the state
in this country we enjoy both religious and civil (see arts. 132 and 133, Revised Penal Code).
freedom. All the officers of the Government, from
the highest to the lowest, in taking their oath to In the case at bar, it appears that the respondent
support and defend the constitution, bind Director of Posts issued the postage stamps in
themselves to recognize and respect the question under the provisions of Act No. 4052 of
constitutional guarantee of religious freedom, the Philippine Legislature. This Act is as follows:
with its inherent limitations and recognized
implications. It should be stated that what is No. 4052. — AN ACT APPROPRIATING THE
guaranteed by our Constitution is religious SUM OF SIXTY THOUSAND PESOS AND
liberty, not mere religious toleration. MAKING THE SAME AVAILABLE OUT OF ANY
FUNDS IN THE INSULAR TREASURY NOT
Religious freedom, however, as a constitutional OTHERWISE APPROPRIATED FOR THE
mandate is not inhibition of profound reverence COST OF PLATES AND PRINTING OF
for religion and is not denial of its influence in POSTAGE STAMPS WITH NEW DESIGNS,
human affairs. Religion as a profession of faith AND FOR OTHER PURPOSES.
to an active power that binds and elevates man
to his Creator is recognized. And, in so far as it Be it enacted by the Senate and House of
instills into the minds the purest principles of Representatives of the Philippines in Legislature
morality, its influence is deeply felt and highly assembled and by the authority of the same:
appreciated. When the Filipino people, in the
preamble of their Constitution, implored "the aid SECTION 1. The sum of sixty thousand pesos is
of Divine Providence, in order to establish a hereby appropriated and made immediately
government that shall embody their ideals, available out of any funds in the Insular Treasury
conserve and develop the patrimony of the not otherwise appropriated, for the costs of
nation, promote the general welfare, and secure plates and printing of postage stamps with new
to themselves and their posterity the blessings designs, and other expenses incident thereto.
of independence under a regime of justice,
liberty and democracy," they thereby manifested SEC. 2. The Director of Posts, with the approval
reliance upon Him who guides the destinies of of the Secretary of Public Works and
men and nations. The elevating influence of Communications, is hereby authorized to
religion in human society is recognized here as dispose of the whole or any portion of the
elsewhere. In fact, certain general concessions amount herein appropriated in the manner
are indiscriminately accorded to religious sects indicated and as often as may be deemed
and denominations. Our Constitution and laws advantageous to the Government.
exempt from taxation properties devoted
exclusively to religious purposes (sec. 14, SEC. 3. This amount or any portion thereof not
subsec. 3, Art. VI, Constitution of the Philippines otherwise expended shall not revert to the
and sec. 1, subsec. 4, Ordinance appended Treasury.
thereto; Assessment Law, sec. 344, par. [c].
Adm. Code). Sectarian aid is not prohibited SEC. 4. This act shall take effect on its approval.
when a priest, preacher, minister or other
religious teacher or dignitary as such is assigned Approved, February 21, 1933.
to the armed forces or to any penal institution,
orphanage or leprosarium 9 sec. 13, subsec. 3, It will be seen that the Act appropriates the sum
Art. VI, Constitution of the Philippines). Optional of sixty thousand pesos for the costs of plates
 CONSTI LAW II ACJUCO FINALS 121

and printing of postage stamps with new designs International Eucharistic Congress, Feb. 3-
and other expenses incident thereto, and 7,1937." What is emphasized is not the
authorizes the Director of Posts, with the Eucharistic Congress itself but Manila, the
approval of the Secretary of Public Works and capital of the Philippines, as the seat of that
Communications, to dispose of the amount congress. It is obvious that while the issuance
appropriated in the manner indicated and "as and sale of the stamps in question may be said
often as may be deemed advantageous to the to be inseparably linked with an event of a
Government". The printing and issuance of the religious character, the resulting propaganda, if
postage stamps in question appears to have any, received by the Roman Catholic Church,
been approved by authority of the President of was not the aim and purpose of the Government.
the Philippines in a letter dated September 1, We are of the opinion that the Government
1936, made part of the respondent's should not be embarassed in its activities simply
memorandum as Exhibit A. The respondent because of incidental results, more or less
alleges that the Government of the Philippines religious in character, if the purpose had in view
would suffer losses if the writ prayed for is is one which could legitimately be undertaken by
granted. He estimates the revenue to be derived appropriate legislation. The main purpose
from the sale of the postage stamps in question should not be frustrated by its subordinate to
at P1,618,17.10 and states that there still remain mere incidental results not contemplated. (Vide
to be sold stamps worth P1,402,279.02. Bradfield vs. Roberts, 175 U. S., 295; 20 Sup.
Ct. Rep., 121; 44 Law. ed., 168.)
Act No. 4052 contemplates no religious purpose
in view. What it gives the Director of Posts is the We are much impressed with the vehement
discretionary power to determine when the appeal of counsel for the petitioner to maintain
issuance of special postage stamps would be inviolate the complete separation of church and
"advantageous to the Government." Of course, state and curb any attempt to infringe by
the phrase "advantageous to the Government" indirection a constitutional inhibition. Indeed, in
does not authorize the violation of the the Philippines, once the scene of religious
Constitution. It does not authorize the intolerance and prescription, care should be
appropriation, use or application of public money taken that at this stage of our political
or property for the use, benefit or support of a development nothing is done by the Government
particular sect or church. In the present case, or its officials that may lead to the belief that the
however, the issuance of the postage stamps in Government is taking sides or favoring a
question by the Director of Posts and the particular religious sect or institution. But, upon
Secretary of Public Works and Communications very serious reflection, examination of Act No.
was not inspired by any sectarian denomination. 4052, and scrutiny of the attending
The stamps were not issue and sold for the circumstances, we have come to the conclusion
benefit of the Roman Catholic Church. Nor were that there has been no constitutional infraction in
money derived from the sale of the stamps given the case at bar, Act No. 4052 grants the Director
to that church. On the contrary, it appears from of Posts, with the approval of the Secretary of
the latter of the Director of Posts of June 5, 1936, Public Works and Communications, discretion to
incorporated on page 2 of the petitioner's misuse postage stamps with new designs "as
complaint, that the only purpose in issuing and often as may be deemed advantageous to the
selling the stamps was "to advertise the Government." Even if we were to assume that
Philippines and attract more tourist to this these officials made use of a poor judgment in
country." The officials concerned merely, took issuing and selling the postage stamps in
advantage of an event considered of question still, the case of the petitioner would fail
international importance "to give publicity to the to take in weight. Between the exercise of a poor
Philippines and its people" (Letter of the judgment and the unconstitutionality of the step
Undersecretary of Public Works and taken, a gap exists which is yet to be filled to
Communications to the President of the justify the court in setting aside the official act
Philippines, June 9, 1936; p. 3, petitioner's assailed as coming within a constitutional
complaint). It is significant to note that the inhibition.
stamps as actually designed and printed (Exhibit
2), instead of showing a Catholic Church chalice The petition for a writ of prohibition is hereby
as originally planned, contains a map of the denied, without pronouncement as to costs. So
Philippines and the location of the City of Manila, ordered.
and an inscription as follows: "Seat XXXIII
 CONSTI LAW II ACJUCO FINALS 122

o'clock in the afternoon; that the court

A.M. No. 10-4-19-SC employees became hostile toward each other as
they vied for the right to read the epistle; and that
RE: LETTER OF TONY Q. V ALENCIANO, the water supply in the entire building was cut off
HOLDING OF RELIGIOUS RITUALS AT THE during the mass because the generator was
HALL OF JUSTICE BUILDING IN QUEZON turned off to ensure silence.
CITY
In his 1st Indorsement,2 dated February 6, 2009,
RESOLUTION Chief Justice Puno referred Valenciano 's letter
to then Deputy Court Administrator (DCA) and
MENDOZA, J.: Officer-in-Charge of the Office on Halls of
Justice, Antonio H. Dujua (DCA Dujua).
One of our fundamental differences lies in our
chosen religion. Some put their faith in a god In turn, DCA Dujua, in his 1st Indorsement,3
different from ours, while some may not believe dated February 11, 2009, referred the letter to
in a god at all. Nevertheless, despite the Executive Judge Teodoro A. Bay (Judge Bay) of
inconveniences this difference may cause us, the RTC and to Executive Judge Luis Zenon Q.
we must accept it unconditionally for only upon Maceren (Judge Maceren) of the Metropolitan
acceptance of the fact that we are different from Trial Court (MeTC) for their respective
each other will we learn to respect one another. comments.

This controversy originated from a series of In his March 6, 2009 Letter,4 addressed to DCA
letters, written by Tony Q. Valenciano Dujua, Judge Maceren clarified that the
(Valenciano) and addressed to then Chief basement of the QC Hall of Justice was known
Justice Reynato S. as the prayer corner. He opined that the use of
the said area for holding masses did not violate
Puno (Chief Justice Puno). the constitutional prohibition against the use of
public property for religious purposes because
In his first Letter,1 dated January 6, 2009, the religious character of such use was merely
Valenciano reported that the basement of the incidental to a temporary use.
Hall of Justice of Quezon City (QC) had been
converted into a Roman Catholic Chapel, In his Memorandum,5 dated March 10, 2009,
complete with offertory table, images of Catholic Judge Bay manifested that he was due to
religious icons, a canopy, an electric organ, and compulsorily retire on April 29, 2009, and he was
a projector. He believed that such practice taking a leave of absence prior to such date to
violated the constitutional provision on the concentrate in resolving cases submitted for
separation of Church and State and the decision before his sala and requested that then
constitutional prohibition against the Vice-Executive Judge Jaime N. Salazar (Judge
appropriation of public money or property for the Salazar) be assigned to further investigate,
benefit of a sect, church, denomination, or any study, and make recommendations on the
other system of religion. matter raised by Valenciana.

Valenciano further averred that the holding of In the meantime, Judge Bay recommended that,
masses at the basement of the QC Hall of pending the final resolution of the case, daily
Justice showed that it tended to favor Catholic masses be permitted to continue, provided that:
litigants; that the rehearsals of the choir caused (1) the mass be limited to thirty (30) minutes; (2)
great disturbance to other employees; that the no loud singing be allowed so as not to disturb
public could no longer use the basement as others; and (3) the inconveniences caused by
resting place; that the employees and litigants of the mass be addressed.
the Public Attorney's Office (PAO), Branches 82
and 83 of the Regional Trial Court (RTC), Legal In his 1st Indorsement,6 dated May 27, 2009,
Library, Philippine Mediation Center, and Chief Justice Puno referred another letter of
Records Section of the Office of the Clerk of Valenciano, dated May 13, 2009, to DCA Dujua
Court (OCC) could not attend to their personal for appropriate action, as he complained that
necessities such as going to the lavatories masses continued to be held at the basement of
because they could not traverse the basement the QC Hall of Justice.
between 12:00 o'clock noontime and 1: 15
 CONSTI LAW II ACJUCO FINALS 123

On March 23, 2010, Valenciano wrote another used during mass because elevator attendants
letter,7 praying that rules be promulgated by the took their lunch break from twelve (12) o'clock to
Court to put a stop to the holding of Catholic one (1) o'clock in the afternoon.
masses, or any other religious rituals, at the QC
Hall of Justice and in all other halls of justice in Judge Lutero opined that it is not the conduct of
the country. masses in public places which the Constitution
prohibited, but the passage of laws or the use of
In its June 22, 2010 Resolution,8 the Court noted public funds for the purpose of establishing a
the March 23, 2010 letter of Valenciano and religion or prohibiting the free exercise thereof.
referred the matter to the Office of the Court She conveyed the fact that no law or rule had
Administrator (OCA) for evaluation, report and been passed and that no public funds had been
recommendation. appropriated or used to support the celebration
of masses. She added that the holding of
Thus, in its 1st Indorsement,9 dated September Catholic masses did not mean that Catholics
6, 2010, the OCA, through then Assistant Court had better chances of obtaining favorable
Administrator (ACA) Jenny Lind R. resolutions from the court.
AldecoaDelorino (now Deputy Court
Administrator), referred the letters of Valenciano Accordingly, Judge Lutero recommended that
to the incumbent RTC Executive Judge the holding of masses at the basement of the QC
Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and Hall of Justice be allowed to continue
incumbent MeTC Executive Judge Caridad M. considering that it was not inimical to the
WalseLutero (Judge Lutero). interests of the court employees and the public.

In his Letter-Comment,10 dated September 9, The OCA Report

2010, Judge Sagun, Jr. informed the Court that and Recommendation
his office had already implemented measures to
address Valenciano's complaints. He reported In its Memorandum,12 dated August 7, 2014,
that masses were shortened to a little over thirty the OCA believed that the practical
(30) minutes; that it was only during special holy inconveniences cited by Valenciano were
days of obligation when the celebration of mass unfounded. It, thus, recommended that his letter-
went beyond one (1) o'clock in the afternoon; complaints, dated January 6, 2009, May 13,
that the pathways leading to the lavatories were 2009 and March 23, 2010, be dismissed for lack
open and could be used without obstruction; that of merit and that the RTC and MeTC Executive
there was never an instance where the actions Judges of QC be directed to closely regulate and
of court personnel, who were vying to read the monitor the holding of masses and other
epistle during mass, caused back-biting and religious practices within the premises of the QC
irritation among themselves; that the water Hall of Justice.1âwphi1
generator had been broken beyond repair and
decommissioned since December 2009; and The OCA opined that the principle of separation
that the court employees prepared for the mass of Church and State, particularly with reference
before the day officially started, so that the to the Establishment Clause, ought not to be
performance of their official duties in court was interpreted according to the rigid standards of
not hampered. separation; that the neutrality of the State on
religion should be benevolent because religion
In her letter,11 Judge Lutero reported that was an ingrained part of society and played an
Catholic masses were being held only during important role in it; and that the State, therefore,
lunch breaks and did not disturb court instead of being belligerent (in the case of Strict
proceedings; that the basement of the QC Hall Separation) or being aloof (in the case of Strict
of Justice could still be used as waiting area for Neutrality) towards religion should instead
the public; that court personnel and the public interact and forbear.13
were never physically prevented from reaching
the lavatories during mass as there was a clear The OCA advanced the view that the standard
path from the public offices leading to the of Benevolent Neutrality/Accommodation was
comfort rooms; that water service interruptions espoused because the principal religion clauses
were caused by maintenance problems and not in our Constitution were not limited to the
because the water pump was being shut off Establishment Clause, which created a wall
during mass; and that the elevators could not be between the Church and the State, but was
 CONSTI LAW II ACJUCO FINALS 124

quickly followed by the declaration of the Free

Exercise Clause, which protected the right of the The Holding of Religious
people to practice their religion. In effect, the Rituals in the Halls of Justice
standard of Benevolent does not Amount to a Union of
Neutrality/Accommodation balanced the interest Church and State
of the State through the Establishment Clause,
and the interest and right of the individual to As earlier stated, Valenciano is against the
freely exercise his religion as guaranteed by the holding of religious rituals in the halls of justice
Free Exercise Clause.14 on the ground that it violates the constitutional
provision on the separation of Church and State
The OCA observed that the present controversy and the constitutional prohibition against the
did not involve a national or local law or appropriation of public money or property for the
regulation in conflict with the Free Exercise benefit of a sect, church, denomination, or any
Clause. On the contrary, Valenciano was merely other system of religion. Indeed, Section 6,
questioning the propriety of holding religious Article II of the 1987 Constitution provides:
masses at the basement of the QC Hall of
Justice, which was nothing more than an issue The separation of Church and State shall be
of whether the said religious practice could be inviolable.17
accommodated or not. It ended up concluding
that based on prevailing jurisprudence, as well The Court once pronounced that "our history, not
as the interpretations given to the religion to speak of the history of mankind, has taught us
clauses of the 1987 Constitution, there was that the union of church and state is prejudicial
nothing constitutionally abhorrent in allowing the to both, for occasions might arise when the state
continuation of the masses.15 will use the church, and the church the state, as
a weapon in the furtherance of their respective
The OCA added that by allowing or ends and aims."18
accommodating the celebration of Catholic
masses within the premises of the QC Hall of Justice Isagani Cruz expounded on this doctrine,
Justice, the Court could not be said to have viz.:
established Roman Catholicism as an official
religion or to have endorsed the said religion, for The rationale of the rule is summed up in the
the reason that it also allowed other religious familiar saying, "Strong fences make good
denominations to practice their religion within neighbors." The idea is to delineate the
the courthouses.16 boundaries between the two institutions and,
thus, avoid encroachments by one against the
ISSUE other because of a misunderstanding of the
limits of their respective exclusive jurisdictions.
WHETHER THE HOLDING OF MASSES AT The demarcation line calls on the entities to
THE BASEMENT OF THE QUEZON CITY "render therefore unto Caesar the things that are
HALL OF JUSTICE VIOLATES THE Caesar's and unto God the things that are
CONSTITUTIONAL PRINCIPLE OF God's."19
SEPARATION OF CHURCH AND STATE AS
WELL AS THE CONSTITUTIONAL This, notwithstanding, the State still recognizes
PROHIBITION AGAINST APPROPRIATION OF the inherent right of the people to have some
PUBLIC MONEY OR PROPERTY FOR THE form of belief system, whether such may be
BENEFIT OF ANY SECT, CHURCH, belief in a Supreme Being, a certain way of life,
DENOMINATION, SECTARIAN INSTITUTION, or even an outright rejection of religion. Our very
OR SYSTEM OF RELIGION. own Constitution recognizes the heterogeneity
and religiosity of our people as reflected in
The Court's Ruling lmbong v. Ochoa,20 as follows:

The Court agrees with the findings and At the outset, it cannot be denied that we all live
recommendation of the OCA and denies the in a heterogeneous society. It is made up of
prayer of Valenciano that the holding of religious people of diverse ethnic, cultural and religious
rituals of any of the world's religions in the QC beliefs and backgrounds. History has shown us
Hall of Justice or any halls of justice all over the that our government, in law and in practice, has
country be prohibited. allowed these various religious, cultural, social
 CONSTI LAW II ACJUCO FINALS 125

and racial groups to thrive in a single society nation, promote the general welfare, and secure
together. It has embraced minority groups and is to themselves and their posterity the blessings
tolerant towards all - the religious people of of independence under a regime of justice,
different sects and the non-believers. The liberty and democracy," they thereby manifested
undisputed fact is that our people generally their intense religious nature and placed
believe in a deity, whatever they conceived Him unfaltering reliance upon Him who guides the
to be, and to Whom they called for guidance and destinies of men and nations. The elevating
enlightenment in crafting our fundamental law. influence of religion in human society is
Thus, the preamble of the present Constitution recognized here as elsewhere. In fact, certain
reads: general concessions are indiscriminately
accorded to religious sects and denominations.
We, the sovereign Filipino people, imploring the Our Constitution and laws exempt from taxation
aid of Almighty God, in order to build a just and properties devoted exclusively to religious
humane society, and establish a Government purposes (sec. 14, subsec. 3, Art. VI,
that shall embody our ideals and aspirations, Constitution of the Philippines and sec. 1,
promote the common good, conserve and subsec. Ordinance appended thereto;
develop our patrimony, and secure to ourselves Assessment Law, sec. 344, par [c], Adm. Code)
and our posterity, the blessings of independence sectarian aid is not prohibited when a priest,
and democracy under the rule of law and a preacher, minister or other religious teacher or
regime of truth, justice, freedom, love, equality, dignitary as such is assigned to the armed forces
and peace, do ordain and promulgate this or to any penal institution, orphanage or
Constitution. leprosarium xxx. Optional religious instruction in
the public schools is by constitutional mandate
The Filipino people in "imploring the aid of allowed xxx. Thursday and Friday of Holy Week,
Almighty God" manifested their spirituality innate Thanksgiving Day, Christmas Day, and Sundays
in our nature and consciousness as a people, are made legal holidays (sec. 29, Adm. Code)
shaped by tradition and historical experience. As because of the secular idea that their
this is embodied in the preamble, it means that observance is conducive to beneficial moral
the State recognizes with respect the influence results. The law allows divorce but punishes
of religion in so far as it instills into the mind the polygamy and bigamy; and certain crimes
purest principles of morality. Moreover, in against religious worship are considered crimes
recognition of the contributions of religion to against the fundamental laws of the state xxx.22
society, the 1935, 1973 and 1987 Constitutions [Emphasis supplied]
contain benevolent and accommodating
provisions towards religions such as tax Thus, the right to believe or not to believe has
exemption of church property, salary of religious again been enshrined in Section 5, Article III of
officers in government institutions, and optional the 1987 Constitution:
religious instructions in public schools.
[Emphases supplied] Section 5. xxx. The free exercise and enjoyment
of religious profession and worship, without
In Aglipay v. Ruiz21 (Aglipay), the Court discrimination or preference, shall forever be
acknowledged how religion could serve as a allowed. xxx.
motivating force behind each person's actions:
Free Exercise Clause
Religious freedom, however, as a constitutional
mandate is not inhibition of profound reverence Freedom of religion was accorded preferred
for religion and is not a denial of its influence in status by the framers of our fundamental law.
human affairs. Religion as a profession of faith And this Court has consistently affirmed this
to an active power that binds and elevates man preferred status, well aware that it is "designed
to his Creator is recognized. And, in so far as it to protect the broadest possible liberty of
instills into the minds the purest principles of conscience, to allow each man to believe as his
morality, its influence is deeply felt and highly conscience directs, to profess his beliefs, and to
appreciated. When the Filipino people, in the live as he believes he ought to live, consistent
preamble of their Constitution, implored "the aid with the liberty of others and with the common
of Divine Providence, in order to establish a good."23
government that shall embody their ideals,
conserve and develop the patrimony of the
 CONSTI LAW II ACJUCO FINALS 126

"The right to religious profession and worship conformity to religious dogma, not freedom from
has a two-fold aspect - freedom to believe and conformity to law because of religious
freedom to act on one's beliefs. The first is dogma."25
absolute as long as the belief is confined within
the realm of thought. The second is subject to Allowing religion to flourish is not contrary to the
regulation where the belief is translated into principle of separation of Church and State. In
external acts that affect the public welfare."24 fact, these two principles are in perfect harmony
Justice Isagani A. Cruz explained these two (2) with each other.
concepts in this wise:
The State is aware of the existence of religious
(1) Freedom to Believe movements whose members believe in the
divinity of Jose Rizal. Yet, it does not implement
The individual is free to believe (or disbelieve) as measures to suppress the said religious sects.
he pleases concerning the hereafter. He may Such inaction or indifference on the part of the
indulge his own theories about life and death; State gives meaning to the separation of Church
worship any god he chooses, or none at all; and State, and at the same time, recognizes the
embrace or reject any religion; acknowledge the religious freedom of the members of these sects
divinity of God or of any being that appeals to his to worship their own Supreme Being.
reverence; recognize or deny the immortality of
his soul - in fact, cherish any religious conviction As pointed out by Judge Lutero, "the Roman
as he and he alone sees fit. However absurd his Catholics express their worship through the holy
beliefs may be to others, even if they be hostile mass and to stop these would be tantamount to
and heretical to the majority, he has full freedom repressing the right to the free exercise of their
to believe as he pleases. He may not be required religion. Our Muslim brethren, who are
to prove his beliefs. He may not be punished for government employees, are allowed to worship
his inability to do so. Religion, after all, is a their Allah even during office hours inside their
matter of faith. "Men may believe what they own offices. The Seventh Day Adventists are
cannot prove." Every one has a right to his exempted from rendering Saturday duty
beliefs and he may not be called to account because their religion prohibits them from
because he cannot prove what he believes. working on a Saturday. Even Christians have
been allowed to conduct their own bible studies
(2) Freedom to Act on One's Beliefs in their own offices. All these have been allowed
in respect of the workers' right to the free
But where the individual externalizes his beliefs exercise of their religion. xxx"26
in acts or omissions that affect the public, his
freedom to do so becomes subject to the Clearly, allowing the citizens to practice their
authority of the State. As great as this liberty may religion is not equivalent to a fusion of Church
be, religious freedom, like all other rights and State.
guaranteed in the Constitution, can be enjoyed
only with a proper regard for the rights of others. No Compelling State Interest

It is error to think that the mere invocation of Religious freedom, however, is not absolute. It
religious freedom will stalemate the State and cannot have its way if there is a compelling state
render it impotent in protecting the general interest. To successfully invoke compelling state
welfare. The inherent police power can be interest, it must be demonstrated that the
exercised to prevent religious practices inimical masses in the QC Hall of Justice unduly disrupt
to society. And this is true even if such practices the delivery of public services or affect the
are pursued out of sincere religious conviction judges and employees in the performance of
and not merely for the purpose of evading the their official functions. In Estrada v. Escritor,27
reasonable requirements or prohibitions of the the Court expounded on the test as follows:
law.
The "compelling state interest" test is proper
Justice Frankfurter put it succinctly: "The where conduct is involved for the whole gamut
constitutional provision on religious freedom of human conduct has different effects on the
terminated disabilities, it did not create new state's interests: some effects may be immediate
privileges. It gave religious liberty, not civil and short-term while others delayed and far-
immunity. Its essence is freedom from reaching. A test that would protect the interests
 CONSTI LAW II ACJUCO FINALS 127

of the state in preventing a substantive evil, In fact, the Civil Service Commission (CSC) was
whether immediate or delayed, is therefore more lenient or tolerant. On November 13, 1981,
necessary. However, not any interest of the the CSC came out with Resolution No. 81-1277,
state would suffice to prevail over the right to which provided, among others, that "during
religious freedom as this is a fundamental .right Friday, the Muslim pray day, Muslims are
that enjoys a preferred position in the hierarchy excused from work from 10:00 o'clock in the
of rights - "the most inalienable and sacred of all morning to 2:00 o'clock in the afternoon." The
human rights", in the words of Jefferson. This Court struck this down28 as not sanctioned by
right is sacred for an invocation of the Free the law. It wrote:
Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of To allow the Muslim employees in the Judiciary
limited government is premised upon an to be excused from work from 10:00 a.m. to 2:00
acknowledgment of such higher sovereignty, p.m. every Friday (Muslim Prayer Day) during
thus the Filipinos implore the "aid of Almighty the entire calendar year would mean a
God in order to build a just and humane society diminution of the prescribed government
and establish a government." As held in working hours. For then, they would be
Sherbert, only the gravest abuses, endangering rendering service twelve (12) hours less than
paramount interests can limit this fundamental that required by the civil service rules for each
right. A mere balancing of interests which month. Further, this would encourage other
balances a right with just a colorable state religious denominations to request for similar
interest is therefore not appropriate. Instead, treatment.
only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The performance of religious practices, whether
The test requires the state to carry a heavy by the Muslim employees or those belonging to
burden, a compelling one, for to do otherwise other religious denominations, should not
would allow the state to batter religion, prejudice the courts and the public. Indeed, the
especially the less powerful ones until they are exercise of religious freedom does not exempt
destroyed. In determining which shall prevail anyone from compliance with reasonable
between the state's interest and religious liberty, requirements of the law, including civil service
reasonableness shall be the guide. The laws.
"compelling state interest" serves the purpose of
revering religious liberty while at the same time Accommodation, Not Establishment of Religion
affording protection to the paramount interests of
the state. This was the test used in Sherbert In order to give life to the constitutional right of
which involved conduct, i.e. refusal to work on freedom of religion, the State adopts a policy of
Saturdays. In the end, the "compelling state accommodation. Accommodation is a
interest" test, by upholding the paramount recognition of the reality that some
interests of the state, seeks to protect the very governmental measures may not be imposed on
state, without which, religious liberty will not be a certain portion of the population for the reason
preserved.137 [Citations omitted] [Emphases that these measures are contrary to their
supplied] religious beliefs. As long as it can be shown that
the exercise of the right does not impair the
As reported by the Executive Judges of Quezon public welfare, the attempt of the State to
City, the masses were being conducted only regulate or prohibit such right would be an
during noon breaks and were not disruptive of unconstitutional encroachment.29
public services. The court proceedings were not
being distracted or interrupted and that the In Estrada v. Escritor,30 the Court adopted a
performance of the judiciary employees were not policy of benevolent neutrality:
being adversely affected. Moreover, no Civil
Service rules were being violated. As there has With religion looked upon with benevolence and
been no detrimental effect on the public service not hostility, benevolent neutrality allows
or prejudice to the State, there is simply no state accommodation of religion under certain
interest compelling enough to prohibit the circumstances. Accommodations are
exercise of religious freedom in the halls of government policies that take religion
justice. specifically into account not to promote the
government's favored form of religion, but to
allow individuals and groups to exercise their
 CONSTI LAW II ACJUCO FINALS 128

religion without hindrance. Their purpose or Sec. 3. (a) During the fasting season on the
effect therefore is to remove a burden on, or month of Ramadan, all Muslim employees in the
facilitate the exercise of, a person's or national government, government-owned or
institution's religion. As Justice Brennan controlled corporations, provinces, cities,
explained, the "government [may] take religion municipalities and other instrumentalities shall
into account ... to exempt, when possible, from observe office hours from seven-thirty in the
generally applicable governmental regulation morning (7:30 a.m.) to three-thirty in the
individuals whose religious beliefs and practices afternoon (3:30 p.m.) without lunch break or
would otherwise thereby be infringed, or to coffee breaks, and that there shall be no
create without state involvement an atmosphere diminution of salary or wages, provided, that the
in which voluntary religious exercise may employee who is not fasting is not entitled to the
flourish." [Emphases supplied] benefit of this provision.

In Victoriano v. Elizalde Rope Workers Union,31 Pursuant thereto, the CSC promulgated
the Court upheld the exemption of members of Resolution No. 81-1277, dated November 13,
Iglesia ni Cristo from the coverage of a closed 1981, which reads in part:
shop agreement between their employer and a
union, because it would violate the teaching of 2. During "Ramadan" the Fasting month (30
their church not to affiliate with a labor days) of the Muslims, the Civil Service official
organization. time of 8 o'clock to 12 o'clock and 1 o'clock to 5
o'clock is hereby modified to 7:30 AM. to 3:30
In Ebralinag v. Division Superintendent of P.M. without noon break and the difference of 2
Schools of Cebu,32 the petitioners, who were hours is not counted as undertime.
members of the Jehovah 's Witnesses, refused
to salute the flag, sing the national anthem, and Following the decree, in Re: Request of Muslim
recite the patriotic pledge for it is their belief that Employees in the Different Courts in Iligan City
those were acts of worship or religious devotion, (Re: Office Hours),34 the Court recognized that
which they could not conscientiously give to the observance of Ramadan as integral to the
anyone or anything except God. The Court Islamic faith and allowed Muslim employees in
accommodated them and granted them an the Judiciary to hold flexible office hours from
exemption from observing the flag ceremony out 7:30 o'clock in the morning to 3:30 o'clock in the
of respect for their religious beliefs. afternoon without any break during the period.
This is a clear case of accommodation because
Further, several laws have been enacted to Section 5, Rule XVII of the Omnibus Rules
accommodate religion. The Revised Implementing Book V of E.0. No. 292, enjoins all
Administrative Code of 1987 has declared civil servants, of whatever religious
Maundy Thursday, Good Friday, and Christmas denomination, to render public service of no less
Day as regular holidays. Republic Act (R.A.) No. than eight (8) hours a day or forty (40) hours a
9177 proclaimed the FIRST Day of Shawwal, the week.
tenth month of the Islamic Calendar, a national
holiday for the observance of Eidul Fitr (the end Non-Establishment Clause
of Ramadan). R.A. No. 9849 declared the tenth
day of Zhu/ Hijja, the twelfth month of the Islamic On the opposite side of the spectrum is the
Calendar, a national holiday for the observance constitutional mandate that "no law shall be
of Eidul Adha. Presidential Decree (P.D.) No. made respecting an establishment of
1083, otherwise known as the Code of Muslim religion,"35 otherwise known as the non-
Personal Laws of the Philippines, expressly establishment clause. Indeed, there is a thin line
allows a Filipino Muslim to have more than one between accommodation and establishment,
(1) wife and exempts him from the crime of which makes it even more imperative to
bigamy punishable under Revised Penal Code understand each of these concepts by placing
(RPC). The same Code allows Muslims to have them in the Filipino society's perspective.
divorce.33
The non-establishment clause reinforces the
As to Muslims in government offices, Section 3 wall of separation between Church and State. It
of P.D. No. 291, as amended by P.D. No. 322, simply means that the State cannot set up a
provides: Church; nor pass laws which aid one religion, aid
all religion, or prefer one religion over another
 CONSTI LAW II ACJUCO FINALS 129

nor force nor influence a person to go to or

remain away from church against his will or force In a September 12, 2003 Memorandum for Chief
him to profess a belief or disbelief in any religion; Justice Hilario G. Davide, Jr., the Office of the
that the state cannot punish a person for Chief Attorney recommended to deny, on
entertaining or professing religious beliefs or constitutional grounds, the request of Rev. Fr.
disbeliefs, for church attendance or Carlo M. Ilagan to hold a oneday vigil in honor of
nonattendance; that no tax in any amount, large the Our Lady of Caysasay within the premises of
or small, can be levied to support any religious the Court. Such controversy must be
activity or institution whatever they may be distinguished from the present issue in that with
called or whatever form they may adopt or teach respect to the former, a Catholic priest was the
or practice religion; that the state cannot openly one who requested for the vigil. Moreover, in that
or secretly participate in the affairs of any case, the vigil would take one (1) whole working
religious organization or group and vice versa.36 day; whereas in this case, the masses are held
Its minimal sense is that the state cannot at the initiative of Catholic employees and only
establish or sponsor an official religion.37 during the thirty-minute lunch break.

In the same breath that the establishment clause Guided by the foregoing, it is our considered
restricts what the government can do with view that the holding of Catholic masses at the
religion, it also limits what religious sects can or basement of the QC Hall of Justice is not a case
cannot do. They can neither cause the of establishment, but merely accommodation.
government to adopt their particular doctrines as First, there is no law, ordinance or circular issued
policy for everyone, nor can they cause the by any duly constitutive authorities expressly
government to restrict other groups. To do so, in mandating that judiciary employees attend the
simple terms, would cause the State to adhere Catholic masses at the basement. Second,
to a particular religion and, thus, establish a state when judiciary employees attend the masses to
religion.38 profess their faith, it is at their own initiative as
they are there on their own free will and volition,
Father Bernas further elaborated on this matter, without any coercion from the judges or
as follows: administrative officers. Third, no government
funds are being spent because the lightings and
"In effect, what non-establishment calls for is airconditioning continue to be operational even if
government neutrality in religious matters. Such there are no religious rituals there. Fourth, the
government neutrality may be summarized in basement has neither been converted into a
four general propositions: (1) Government must Roman Catholic chapel nor has it been
not prefer one religion over another or religion permanently appropriated for the exclusive use
over irreligion because such preference would of its faithful. Fifth, the allowance of the masses
violate voluntarism and breed dissension; (2) has not prejudiced other religions.
Government funds must not be applied to
religious purposes because this too would No Appropriation of Public
violate voluntarism and breed interfaith Money or Property for the
dissension; (3) Government action must not aid Benefit of any Church
religion because this too can violate voluntarism
and breed interfaith dissension; [and] (4) Section 29 (2), Article VI of the 1987 Constitution
Government action must not result in excessive provides, "No public money or property shall be
entanglement with religion because this too can appropriated, applied, paid, or employed,
violate voluntarism and breed interfaith directly or indirectly, for the use, benefit, or
dissension."39 support of any sect, church, denomination,
sectarian institution, or system of religion, or of
Establishment entails a positive action on the any priest, preacher, minister, or other religious
part of the State. Accommodation, on the other teacher, or dignitary as such, except when such
hand, is passive. In the former, the State priest, preacher, minister, or dignitary is
becomes involved through the use of assigned to the armed forces, or to any penal
government resources with the primary intention institution, or government orphanage or
of setting up a state religion. In the latter, the leprosarium."
State, without being entangled, merely gives
consideration to its citizens who want to freely The word "apply" means "to use or employ for a
exercise their religion. particular purpose."40 "Appropriate" means "to
 CONSTI LAW II ACJUCO FINALS 130

prescribe a particular use for particular moneys penal institution, or government orphanage or
or to designate or destine a fund or property for leprosarium. That a priest belongs to a particular
a distinct use, or for the payment of a particular church and the latter may have benefited from
demand."41 the money he received is of no moment, for the
purpose of the payment of public funds is merely
Under the principle of noscitur a sociis, where a to compensate the priest for services rendered
particular word or phrase is ambiguous in itself and for which other persons, who will perform
or is equally susceptible of various meanings, its the same services will also be compensated in
correct construction may be made clear and the same manner.
specific by considering the company of words in
which it is found or with which it is associated. Ut magis valeat quam pereat. The Constitution
This is because a word or phrase in a statute is is to be interpreted as a whole.44 As such, the
always used in association with other words or foregoing interpretation finds support in the
phrases, and its meaning may, thus, be modified
or restricted by the latter. The particular words, Establishment Clause, which is as clear as
clauses and phrases should not be studied as daylight in stating that what is proscribed is the
detached and isolated expressions, but the passage of any law which tends to establish a
whole and every part of the statute must be religion, not merely to accommodate the free
considered in fixing the meaning of any of its exercise thereof.
parts and in order to produce a harmonious
whole. A statute must be so construed as to The Constitution even grants tax exemption to
harmonize and give effect to all its provisions properties actually, directly and exclusively
whenever possible.42 devoted to religious purposes.45 Certainly, this
benefits the religious sects for a portion of what
Thus, the words "pay" and "employ" should be could have been collected for the benefit of the
understood to mean that what is prohibited is the public is surrendered in their favor.
use of public money or property for the sole
purpose of benefiting or supporting any church. In Manosca v. CA,46 a parcel of land located in
The prohibition contemplates a scenario where Taguig was determined by the National
the appropriation is primarily intended for the Historical Institute to be the birthsite of Felix Y.
furtherance of a particular church. Manalo, the founder of Iglesia ni Cristo. The
Republic then sought to expropriate the said
It has also been held that the aforecited property. The exercise of the power of eminent
constitutional provision "does not inhibit the use domain was questioned on the ground that it
of public property for religious purposes when would only benefit members of Iglesia ni Cristo.
the religious character of such use is merely The Court upheld the legality of the
incidental to a temporary use which is available expropriation, viz.:
indiscriminately to the public in general." Hence,
a public street may be used for a religious The practical reality that greater benefit may be
procession even as it is available for a civic derived by members of the Iglesia ni Cristo than
parade, in the same way that a public plaza is by most others could well be true but such a
not barred to a religious rally if it may also be peculiar advantage still remains to be merely
used for a political assemblage.43 incidental and secondary in nature.47
[Emphasis supplied]
In relation thereto, the phrase "directly or
indirectly" refers to the manner of appropriation Again, in Aglipay, the issuing and selling of
of public money or property, not as to whether a postage stamps commemorative of the Thirty-
particular act involves a direct or a mere third International Eucharistic Congress was
incidental benefit to any church. Otherwise, the assailed on the ground that it violated the
framers of the Constitution would have placed it constitutional prohibition against the
before "use, benefit or support" to describe the appropriation of public money or property for the
same. Even the exception to the same provision benefit of any church. In ruling that there was no
bolsters this interpretation. The exception such violation, the Court held:
contemplates a situation wherein public funds
are paid to a priest, preacher, minister, or other It is obvious that while the issuance and sale of
religious teacher, or dignitary because they the stamps in question may be said to be
rendered service in the armed forces, or to any inseparably linked with an event of a religious
 CONSTI LAW II ACJUCO FINALS 131

character, the resulting propaganda, if any, separation, rather than benevolent

received by the Roman Catholic Church, was neutrality/accommodation, would be the norm.
not the aim and purpose of the Government. We Thus, the establishment of Shari'a courts, the
are of the opinion that the Government should National Commission for Muslim Filipinos, and
not be embarrassed in its activities simply the exception of Muslims from the provisions of
because of incidental results, more or less the RPC relative to the crime of bigamy would all
religious in character, if the purpose had in view be rendered nugatory because of strict
is one which could legitimately be undertaken by separation. The exception of members of Iglesia
appropriate legislation. The main purpose ni Cristo from joining a union or the non-
should not be frustrated by its subordination to compulsion recognized in favor of members of
mere incidental results not contemplated.48 the Jehovah's Witnesses from doing certain
[Emphasis supplied] gestures during the flag ceremony, will all go
down the drain simply because we insist on strict
Here, the basement of the QC Hall of Justice is separation.
not appropriated, applied or employed for the
sole purpose of supporting the Roman That the holding of masses at the basement of
Catholics. the QC Hall of Justice may offend non-Catholics
is no reason to proscribe it. Our Constitution
Further, it has not been converted into a Roman ensures and mandates an unconditional
Catholic chapel for the exclusive use of its tolerance, without regard to whether those who
faithful contrary to the claim of Valenciana. seek to profess their faith belong to the majority
Judge or to the minority. It is emphatic in saying that
"the free exercise and enjoyment of religious
Maceren reported that the basement is also profession and worship shall be without
being used as a public waiting area for most of discrimination or preference." Otherwise,
the day and a meeting place for different accommodation or tolerance would just be mere
employee organizations. The use of the area for lip service.
holding masses is limited to lunch break period
from twelve (12) o'clock to one (1) o'clock in the One cannot espouse that the constitutional
afternoon. Further, Judge Sagun, Jr. related that freedom of religion ensures tolerance, but, in
masses run for just a little over thirty (30) reality, refuses to practice what he preaches.
minutes. It is, therefore, clear that no undue One cannot ask for tolerance when he refuses to
religious bias is being committed when the do the same for others.
subject basement is allowed to be temporarily
used by the Catholics to celebrate mass, as the In fine, the Court denies the plea that the holding
same area can be used by other groups of of Catholic masses at the basement of the QC
people and for other purposes.49 Thus, the Hall of Justice be prohibited because the said
basement of the QC Hall of Justice has practice does not violate the constitutional
remained to be a public property devoted for principle of separation of Church and State and
public use because the holding of Catholic the constitutional prohibition against
masses therein is a mere incidental appropriation of public money or property for the
consequence of its primary purpose. benefit of a sect, church, denomination, or any
other system of religion.
Conclusion
WHEREFORE, the Court resolves to:
Directing the Executive Judges of the RTC and
MeTC to regulate and closely monitor the 1. NOTE the letter-complaints of Mr. Tony Q.
holding of masses and other religious practices Valenciano, dated January 6, 2009, May 13,
within the courts does not promote excessive 2009, and March 23, 2010;
collaboration between courts and various
religions. On the contrary, this is necessary to 2. NOTE the 1st Indorsement, dated September
ensure that there would be no excessive 21, 2010, by the Office on Halls of Justice,
entanglement. containing photocopies and certified
photocopies of previous actions made relative to
To disallow the holding of religious rituals within the complaint;
halls of justice would set a dangerous precedent
and commence a domino effect. Strict
 CONSTI LAW II ACJUCO FINALS 132

3. NOTE the Letter-Comment, dated September

9, 2010, of Quezon City Regional Trial Court
Executive Judge Fernando T. Sagun, Jr.;

4. NOTE the undated Letter-Comment of

Quezon City Metropolitan Trial Court Executive
Judge Caridad M. Walse-Lutero;

5. DENY the prayer of Tony Q. Valenciano to

prohibit the holding of religious rituals in the QC
Hall of Justice and in all halls of justice in the
country; and

6. DIRECT the Executive Judges of Quezon City

to REGULATE and CLOSELY MONITOR the
holding of masses and other religious practices
within the Quezon City Hall of Justice by
ensuring, among others, that:

(a) it does not disturb or interrupt court

proceedings;

(b) it does not adversely affect and interrupt the

delivery of public service; and

(c) it does not unduly inconvenience the public.

In no case shall a particular part of a public

building be a permanent place for worship for the
benefit of any and all religious groups. There
shall also be no permanent display of religious
icons in all halls of justice in the country. In case
of religious rituals, religious icons and images
may be displayed but their presentation is limited
only during the celebration of such activities so
as not to offend the sensibilities of members of
other religious denominations or the non-
religious public. After any religious affair, the
icons and images shall be hidden or concealed
from public view.

The disposition in this administrative matter shall

apply to all halls of justice in the country. Other
churches, religious denominations or sects are
entitled to the same rights, privileges, and
practices in every hall of justice. In other
buildings not owned or controlled by the
Judiciary, the Executive Judges should
coordinate and seek approval of the building
owners/administrators accommodating their
courts.

SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 133

Mindy M. Juatas and on behalf of her minor

G.R. No. 204819 April 8, 2014 children Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R. Laws,
JAMES M. IMBONG and LOVELY-ANN C. Joseph R . Laws & Katrina R. Laws, Petitioners,
IMBONG, for themselves and in behalf of vs.
their minor children, LUCIA CARLOS HON. PAQUITO N. OCHOA, JR., Executive
IMBONG and BERNADETTE CARLOS Secretary, HON. ENRIQUE T. ONA, Secretary,
IMBONG and MAGNIFICAT CHILD Department of Health, HON. ARMIN A.
DEVELOPMENT CENTER, INC., Petitioners, LUISTRO, Secretary, Department of Education,
vs. Culture and Sports, HON. CORAZON
HON. PAQUITO N. OCHOA, JR., Executive SOLIMAN, Secretary, Department of Social
Secretary, HON. FLORENCIO B. ABAD, Welfare and Development, HON. MANUELA.
Secretary, Department of Budget and ROXAS II, Secretary, Department of Interior and
Management, HON. ENRIQUE T. ONA, Local Government, HON. FLORENCIO B.
Secretary, Department of Health, HON. ABAD, Secretary, Department of Budget and
ARMIN A. LUISTRO, Secretary, Department Management, HON. ARSENIO M. BALISACAN,
of Education, Culture and Sports and HON. Socio-Economic Planning Secretary and NEDA
MANUELA. ROXAS II, Secretary, Department Director-General, THE PHILIPPINE
of Interior and Local Government, COMMISSION ON WOMEN, represented by its
Respondents. Chairperson, Remedios lgnacio-Rikken, THE
PHILIPPINE HEALTH INSURANCE
x---------------------------------x CORPORATION, represented by its President
Eduardo Banzon, THE LEAGUE OF
G.R. No. 204934 PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE
ALLIANCE FOR THE FAMILY FOUNDATION LEAGUE OF CITIES OF THE PHILIPPINES,
PHILIPPINES, INC. [ALFI], represented by its represented by its President Oscar Rodriguez,
President, Maria Concepcion S. Noche, and THE LEAGUE OF MUNICIPALITIES OF
Spouses Reynaldo S. Luistro & Rosie B . Luistro, THE PHILIPPINES, represented by its President
Jose S. Sandejas & Elenita S.A. Sandejas, Donato Marcos, Respondents.
Arturo M. Gorrez & Marietta C. Gorrez, Salvador
S. Mante, Jr. & Hazeleen L. Mante, Rolando M. x---------------------------------x
Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. G.R. No. 204957
Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, TASK FORCE FOR FAMILY AND LIFE
Therese Antonette C. Tansingco, Lorenzo Jose VISAYAS, INC. and VALERIANO S. AVILA,
C. Tansingco, Miguel F emando C. Tangsingco, Petitioners,
Carlo Josemaria C. Tansingco & Juan Paolo C. vs.
Tansingco, Spouses Mariano V. Araneta & HON. PAQUITO N. OCHOA, JR., Executive
Eileen Z. Araneta for themselves and on behalf Secretary; HON. FLORENCIO B. ABAD,
of their minor children, Ramon Carlos Z. Araneta Secretary, Department of Budget and
& Maya Angelica Z. Araneta, Spouses Renato Management; HON. ENRIQUE T. ONA,
C. Castor & Mildred C. Castor for themselves Secretary, Department of Education; and HON.
and on behalf of their minor children, Renz MANUELA. ROXAS II, Secretary, Department of
Jeffrey C. Castor, Joseph Ramil C. Castor, John Interior and Local Government, Respondents.
Paul C. Castor & Raphael C. Castor, Spouses
Alexander R. Racho & Zara Z. Racho for x---------------------------------x
themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, G.R. No. 204988
Mari Racho & Manolo Racho, Spouses Alfred R.
Racho & Francine V. Racho for themselves and SERVE LIFE CAGAYAN DE ORO CITY, INC.,
on behalf of their minor children Michael Racho, represented by Dr. Nestor B. Lumicao, M.D., as
Mariana Racho, Rafael Racho, Maxi Racho, President and in his personal capacity,
Chessie Racho & Laura Racho, Spouses David ROSEVALE FOUNDATION INC., represented
R. Racho & Armilyn A. Racho for themselves by Dr. Rodrigo M. Alenton, M.D., as member of
and on behalf of their minor child Gabriel Racho, the school board and in his personal capacity,
 CONSTI LAW II ACJUCO FINALS 134

ROSEMARIE R. ALENTON, IMELDA G. vs.

IBARRA, CPA, LOVENIAP. NACES, Phd., HON. PAQUITO N. OCHOA, JR., Executive
ANTHONY G. NAGAC, EARL ANTHONY C. Secretary, HON. FLORENCIO B. ABAD,
GAMBE and MARLON I. YAP, Petitioners, Secretary, Department of Budget and
vs. Management, HON. ENRIQUE T. ONA,
OFFICE OF THE PRESIDENT, SENATE OF Secretary, Department of Health, HON. ARMIN
THE PHILIPPINES, HOUSE OF A. LUISTRO, Secretary, Department of
REPRESENTATIVES, HON. PAQUITO N. Education, HON. MANUELA. ROXAS II,
OCHOA, JR., Executive Secretary, HON. Secretary, Department of Interior and Local
FLORENCIO B. ABAD, Secretary, Department Government, HON. CORAZON J. SOLIMAN,
of Budget and Management; HON. ENRIQUE T. Secretary, Department of Social Welfare and
ONA, Secretary, Department of Health; HON. Development, HON. ARSENIO BALISACAN,
ARMIN A. LUISTRO, Secretary, Department of Director-General, National Economic and
Education and HON. MANUELA. ROXAS II, Development Authority, HON. SUZETTE H.
Secretary, Department of Interior and Local LAZO, Director-General, Food and Drugs
Government, Respondents. Administration, THE BOARD OF DIRECTORS,
Philippine Health Insurance Corporation, and
x---------------------------------x THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
G.R. No. 205003
x---------------------------------x
EXPEDITO A. BUGARIN, JR., Petitioner,
vs. G.R. No. 205478
OFFICE OF THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, HON. REYNALDO J. ECHAVEZ, M.D., JACQUELINE
SENATE PRESIDENT, HON. SPEAKER OF H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,
THE HOUSE OF REPRESENTATIVES and AND JOSEPHINE MILLADO-LUMITAO, M.D.,
HON. SOLICITOR GENERAL, Respondents. collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G.
x---------------------------------x MAPA, CARLOS ANTONIO PALAD,
WILFREDO JOSE, CLAIRE NAVARRO, ANNA
G.R. No. 205043 COSIO, and GABRIEL DY LIACCO collectively
known as Filipinos For Life, Petitioners,
EDUARDO B. OLAGUER and THE CATHOLIC vs.
XYBRSPACE APOSTOLATE OF THE HON. PAQUITO N. OCHOA, JR., Executive
PHILIPPINES, Petitioners, Secretary; HON. FLORENCIO B. ABAD,
vs. Secretary of the Department of Budget and
DOH SECRETARY ENRIQUE T. ONA, FDA Management; HON. ENRIQUE T. ONA,
DIRECTOR SUZETTE H. LAZO, DBM Secretary of the Department of Health; HON.
SECRETARY FLORENCIO B. ABAD, DILG ARMIN A. LUISTRO, Secretary of the
SECRETARY MANUELA. ROXAS II, DECS Department of Education; and HON. MANUELA.
SECRETARY ARMIN A. LUISTRO, ROXAS II, Secretary of the Department of
Respondents. Interior and Local Government, Respondents.

x---------------------------------x x---------------------------------x

G.R. No. 205138 G.R. No. 205491

PHILIPPINE ALLIANCE OF XSEMINARIANS, SPOUSES FRANCISCO S. TATAD AND

INC. (PAX), herein represented by its National MARIA FENNY C. TATAD & ALA F. PAGUIA,
President, Atty. Ricardo M . Ribo, and in his own for themselves, their Posterity, and the rest of
behalf, Atty. Lino E.A. Dumas, Romeo B. Filipino posterity, Petitioners,
Almonte, Osmundo C. Orlanes, Arsenio Z. vs.
Menor, Samuel J. Yap, Jaime F. Mateo, Rolly OFFICE OF THE PRESIDENT of the Republic
Siguan, Dante E. Magdangal, Michael Eugenio of the Philippines, Respondent.
O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners, x---------------------------------x
 CONSTI LAW II ACJUCO FINALS 135

MANUEL A. ROXAS II, Secretary, Department

G.R. No. 205720 of Interior and Local Government, Respondents.

PRO-LIFE PHILIPPINES FOUNDATION, Inc., x---------------------------------x

represented by Loma Melegrito, as Executive
Director, and in her personal capacity, G.R. No. 207172
JOSELYN B. BASILIO, ROBERT Z. CORTES,
ARIEL A. CRISOSTOMO, JEREMY I. COUPLES FOR CHRIST FOUNDATION, INC.,
GATDULA, CRISTINA A. MONTES, RAUL SPOUSES JUAN CARLOS ARTADI
ANTONIO A. NIDOY, WINSTON CONRAD B. SARMIENTO AND FRANCESCA ISABELLE
PADOJINOG, RUFINO L. POLICARPIO III, BESINGA-SARMIENTO, AND SPOUSES LUIS
Petitioners, FRANCIS A. RODRIGO, JR. and DEBORAH
vs. MARIE VERONICA N. RODRIGO, Petitioners,
OFFICE OF THE PRESIDENT, SENATE OF vs.
THE PHILIPPINES, HOUSE OF HON. PAQUITO N. OCHOA, JR., Executive
REPRESENTATIVES, HON. PAQUITO N. Secretary, HON. FLORENCIO B. ABAD,
OCHOA, JR., Executive Secretary, HON. Secretary, Department of Budget and
FLORENCIO B. ABAD, Secretary, Department Management, HON. ENRIQUE T. ONA,
of Budget and Management, HON. ENRIQUE T. Secretary, Department of Health, HON. ARMIN
ONA, Secretary, Department of Health, HON. A. LUISTRO, Secretary, Department of
ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and HON.
Education and HON. MANUEL A. ROXAS II, MANUELA. ROXAS II, Secretary, Department of
Secretary, Department of Interior and Local Interior and Local Government, Respondents.
Government, Respondents.
x---------------------------------x
x---------------------------------x
G.R. No. 207563
G.R. No. 206355
ALMARIM CENTI TILLAH and
MILLENNIUM SAINT FOUNDATION, INC., ABDULHUSSEIN M. KASHIM, Petitioners,
ATTY. RAMON PEDROSA, ATTY. CITA vs.
BORROMEO-GARCIA, STELLAACEDERA, HON. PAQUITO N. OCHOA, JR., Executive
ATTY. BERTENI CATALUNA CAUSING, Secretary, HON. ENRIQUE T. ONA, Secretary
Petitioners, of the Department of Health, and HON. ARMIN
vs. A. LUISTRO,Secretary of the Department of
OFFICE OF THE PRESIDENT, OFFICE OF Budget and Management, Respondents.
THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT DECISION
OF EDUCATION, Respondents.
MENDOZA, J.:
x---------------------------------x
Freedom of religion was accorded preferred
G.R. No. 207111 status by the framers of our fundamental law.
And this Court has consistently affirmed this
JOHN WALTER B. JUAT, MARY M. IMBONG, preferred status, well aware that it is "designed
ANTHONY VICTORIO B. LUMICAO, JOSEPH to protect the broadest possible liberty of
MARTIN Q. VERDEJO, ANTONIA EMMA R. conscience, to allow each man to believe as his
ROXAS and LOTA LAT-GUERRERO, conscience directs, to profess his beliefs , and to
Petitioners, live as he believes he ought to live, consistent
vs. with the liberty of others and with the common
HON. PAQUITO N. OCHOA, JR., Executive good."1
Secretary, HON. FLORENCIO ABAD,
Secretary, Department of Budget and To this day, poverty is still a major stumbling
Management, HON. ENRIQUE T. ONA, block to the nation's emergence as a developed
Secretary, Department of Health, HON. ARMIN country, leaving our people beleaguered in a
A. LUISTRO, Secretary, Department of state of hunger, illiteracy and unemployment.
Education, Culture and Sports and HON. While governmental policies have been geared
 CONSTI LAW II ACJUCO FINALS 136

towards the revitalization of the economy, the Ann C. Imbong, in their personal capacities as
bludgeoning dearth in social services remains to citizens, lawyers and taxpayers and on behalf of
be a problem that concerns not only the poor, their minor children; and the Magnificat Child
but every member of society. The government Leaming Center, Inc., a domestic, privately-
continues to tread on a trying path to the owned educational institution (Jmbong);
realization of its very purpose, that is, the
general welfare of the Filipino people and the (2) Petition for Prohibition,6 filed by the Alliance
development of the country as a whole. The for the Family Foundation Philippines, Inc.,
legislative branch, as the main facet of a through its president, Atty. Maria Concepcion S.
representative government, endeavors to enact Noche7 and several others8 in their personal
laws and policies that aim to remedy looming capacities as citizens and on behalf of the
societal woes, while the executive is closed set generations unborn (ALFI);
to fully implement these measures and bring
concrete and substantial solutions within the (3) Petition for Certiorari,9 filed by the Task
reach of Juan dela Cruz. Seemingly distant is the Force for Family and Life Visayas, Inc., and
judicial branch, oftentimes regarded as an inert Valeriano S. Avila, in their capacities as citizens
governmental body that merely casts its watchful and taxpayers (Task Force Family);
eyes on clashing stakeholders until it is called
upon to adjudicate. Passive, yet reflexive when (4) Petition for Certiorari and Prohibition,10 filed
called into action, the Judiciary then willingly by Serve Life Cagayan De Oro City, Inc.,11
embarks on its solemn duty to interpret Rosevale Foundation, Inc.,12 a domestic,
legislation vis-a-vis the most vital and enduring privately-owned educational institution, and
principle that holds Philippine society together - several others,13 in their capacities as citizens
the supremacy of the Philippine Constitution. (Serve Life);

Nothing has polarized the nation more in recent (5) Petition,14 filed by Expedito A. Bugarin, Jr. in
years than the issues of population growth his capacity as a citizen (Bugarin);
control, abortion and contraception. As in every
democratic society, diametrically opposed views (6) Petition for Certiorari and Prohibition,15 filed
on the subjects and their perceived by Eduardo Olaguer and the Catholic Xybrspace
consequences freely circulate in various media. Apostolate of the Philippines,16 in their
From television debates2 to sticker campaigns,3 capacities as a citizens and taxpayers (Olaguer);
from rallies by socio-political activists to mass
gatherings organized by members of the clergy4 (7) Petition for Certiorari and Prohibition,17 filed
- the clash between the seemingly antithetical by the Philippine Alliance of Xseminarians
ideologies of the religious conservatives and Inc.,18 and several others19 in their capacities
progressive liberals has caused a deep division as citizens and taxpayers (PAX);
in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (8) Petition,20 filed by Reynaldo J. Echavez,
(R.A.) No. 10354, otherwise known as the M.D. and several others,21 in their capacities as
Responsible Parenthood and Reproductive citizens and taxpayers (Echavez);
Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012. (9) Petition for Certiorari and Prohibition,22 filed
by spouses Francisco and Maria Fenny C. Tatad
Shortly after the President placed his imprimatur and Atty. Alan F. Paguia, in their capacities as
on the said law, challengers from various sectors citizens, taxpayers and on behalf of those yet
of society came knocking on the doors of the unborn. Atty. Alan F. Paguia is also proceeding
Court, beckoning it to wield the sword that strikes in his capacity as a member of the Bar (Tatad);
down constitutional disobedience. Aware of the
profound and lasting impact that its decision may (10) Petition for Certiorari and Prohibition,23
produce, the Court now faces the iuris filed by Pro-Life Philippines Foundation Inc.24
controversy, as presented in fourteen (14) and several others,25 in their capacities as
petitions and two (2) petitions- in-intervention, to citizens and taxpayers and on behalf of its
wit: associates who are members of the Bar (Pro-
Life);
(1) Petition for Certiorari and Prohibition,5 filed
by spouses Attys. James M. Imbong and Lovely
 CONSTI LAW II ACJUCO FINALS 137

(11) Petition for Prohibition,26 filed by public funds for purposes that are believed to be
Millennium Saint Foundation, Inc.,27 Attys. contrary to their beliefs is included in the
Ramon Pedrosa, Cita Borromeo-Garcia, Stella constitutional mandate ensuring religious
Acedera, and Berteni Catalufia Causing, in their freedom.37
capacities as citizens, taxpayers and members
of the Bar (MSF); It is also contended that the RH Law threatens
conscientious objectors of criminal prosecution,
(12) Petition for Certiorari and Prohibition,28 imprisonment and other forms of punishment, as
filed by John Walter B. Juat and several it compels medical practitioners 1] to refer
others,29 in their capacities as citizens (Juat) ; patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full
(13) Petition for Certiorari and Prohibition,30 and correct information on reproductive health
filed by Couples for Christ Foundation, Inc. and programs and service, although it is against their
several others,31 in their capacities as citizens religious beliefs and convictions.38
(CFC);
In this connection, Section 5 .23 of the
(14) Petition for Prohibition32 filed by Almarim Implementing Rules and Regulations of the RH
Centi Tillah and Abdulhussein M. Kashim in their Law (RH-IRR),39 provides that skilled health
capacities as citizens and taxpayers (Tillah); and professionals who are public officers such as,
but not limited to, Provincial, City, or Municipal
(15) Petition-In-Intervention,33 filed by Atty. Health Officers, medical officers, medical
Samson S. Alcantara in his capacity as a citizen specialists, rural health physicians, hospital staff
and a taxpayer (Alcantara); and nurses, public health nurses, or rural health
midwives, who are specifically charged with the
(16) Petition-In-Intervention,34 filed by Buhay duty to implement these Rules, cannot be
Hayaang Yumabong (B UHAY) , an accredited considered as conscientious objectors.40
political party.
It is also argued that the RH Law providing for
A perusal of the foregoing petitions shows that the formulation of mandatory sex education in
the petitioners are assailing the constitutionality schools should not be allowed as it is an affront
of RH Law on the following GROUNDS: to their religious beliefs.41

• The RH Law violates the right to life of the While the petitioners recognize that the
unborn. According to the petitioners, guarantee of religious freedom is not absolute,
notwithstanding its declared policy against they argue that the RH Law fails to satisfy the
abortion, the implementation of the RH Law "clear and present danger test" and the
would authorize the purchase of hormonal "compelling state interest test" to justify the
contraceptives, intra-uterine devices and regulation of the right to free exercise of religion
injectables which are abortives, in violation of and the right to free speech.42
Section 12, Article II of the Constitution which
guarantees protection of both the life of the • The RH Law violates the constitutional
mother and the life of the unborn from provision on involuntary servitude. According to
conception.35 the petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to
• The RH Law violates the right to health and the be accredited under the PhilHealth program,
right to protection against hazardous products. they are compelled to provide forty-eight (48)
The petitioners posit that the RH Law provides hours of pro bona services for indigent women,
universal access to contraceptives which are under threat of criminal prosecution,
hazardous to one's health, as it causes cancer imprisonment and other forms of punishment.43
and other health problems.36
The petitioners explain that since a majority of
• The RH Law violates the right to religious patients are covered by PhilHealth, a medical
freedom. The petitioners contend that the RH practitioner would effectively be forced to render
Law violates the constitutional guarantee reproductive health services since the lack of
respecting religion as it authorizes the use of PhilHealth accreditation would mean that the
public funds for the procurement of majority of the public would no longer be able to
contraceptives. For the petitioners, the use of avail of the practitioners services.44
 CONSTI LAW II ACJUCO FINALS 138

determine whether their child should use

• The RH Law violates the right to equal contraceptives.50
protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes • The RH Law violates the constitutional principle
them the primary target of the government of non-delegation of legislative authority. The
program that promotes contraceptive use. The petitioners question the delegation by Congress
petitioners argue that, rather than promoting to the FDA of the power to determine whether a
reproductive health among the poor, the RH Law product is non-abortifacient and to be included in
seeks to introduce contraceptives that would the Emergency Drugs List (EDL).51
effectively reduce the number of the poor.45
• The RH Law violates the one subject/one bill
• The RH Law is "void-for-vagueness" in rule provision under Section 26( 1 ), Article VI of
violation of the due process clause of the the Constitution.52
Constitution. In imposing the penalty of
imprisonment and/or fine for "any violation," it is • The RH Law violates Natural Law.53
vague because it does not define the type of
conduct to be treated as "violation" of the RH • The RH Law violates the principle of Autonomy
Law.46 of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao
In this connection, it is claimed that "Section 7 of {ARMM). It is contended that the RH Law,
the RH Law violates the right to due process by providing for reproductive health measures at
removing from them (the people) the right to the local government level and the ARMM,
manage their own affairs and to decide what kind infringes upon the powers devolved to LGUs and
of health facility they shall be and what kind of the ARMM under the Local Government Code
services they shall offer."47 It ignores the and R.A . No. 9054.54
management prerogative inherent in
corporations for employers to conduct their Various parties also sought and were granted
affairs in accordance with their own discretion leave to file their respective comments-in-
and judgment. intervention in defense of the constitutionality of
the RH Law. Aside from the Office of the Solicitor
• The RH Law violates the right to free speech. General (OSG) which commented on the
To compel a person to explain a full range of petitions in behalf of the respondents,55
family planning methods is plainly to curtail his Congressman Edcel C. Lagman,56 former
right to expound only his own preferred way of officials of the Department of Health Dr.
family planning. The petitioners note that Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
although exemption is granted to institutions Alberto G. Romualdez,57 the Filipino Catholic
owned and operated by religious groups, they Voices for Reproductive Health (C4RH),58 Ana
are still forced to refer their patients to another Theresa "Risa" Hontiveros,59 and Atty. Joan De
healthcare facility willing to perform the service Venecia60 also filed their respective Comments-
or procedure.48 in-Intervention in conjunction with several
others. On June 4, 2013, Senator Pia Juliana S.
• The RH Law intrudes into the zone of privacy Cayetano was also granted leave to
of one's family protected by the Constitution. It is intervene.61
contended that the RH Law providing for
mandatory reproductive health education The respondents, aside from traversing the
intrudes upon their constitutional right to raise substantive arguments of the petitioners, pray
their children in accordance with their beliefs.49 for the dismissal of the petitions for the principal
reasons that 1] there is no actual case or
It is claimed that, by giving absolute authority to controversy and, therefore, the issues are not
the person who will undergo reproductive health yet ripe for judicial determination.; 2] some
procedure, the RH Law forsakes any real petitioners lack standing to question the RH
dialogue between the spouses and impedes the Law; and 3] the petitions are essentially petitions
right of spouses to mutually decide on matters for declaratory relief over which the Court has no
pertaining to the overall well-being of their original jurisdiction.
family. In the same breath, it is also claimed that
the parents of a child who has suffered a
miscarriage are deprived of parental authority to
 CONSTI LAW II ACJUCO FINALS 139

Meanwhile, on March 15, 2013, the RH-IRR for classified by the Food and Drug Administration
the enforcement of the assailed legislation took shall be delivered or sold to any person without
effect. a proper prescription by a duly licensed
physician."
On March 19, 2013, after considering the issues
and arguments raised, the Court issued the On December 11, 1967, the Philippines,
Status Quo Ante Order (SQAO), enjoining the adhering to the UN Declaration on Population,
effects and implementation of the assailed which recognized that the population problem
legislation for a period of one hundred and should be considered as the principal element
twenty (120) days, or until July 17, 2013.62 for long-term economic development, enacted
measures that promoted male vasectomy and
On May 30, 2013, the Court held a preliminary tubal ligation to mitigate population growth.67
conference with the counsels of the parties to Among these measures included R.A. No. 6365,
determine and/or identify the pertinent issues approved on August 16, 1971, entitled "An Act
raised by the parties and the sequence by which Establishing a National Policy on Population,
these issues were to be discussed in the oral Creating the Commission on Population and for
arguments. On July 9 and 23, 2013, and on Other Purposes. " The law envisioned that
August 6, 13, and 27, 2013, the cases were "family planning will be made part of a broad
heard on oral argument. On July 16, 2013, the educational program; safe and effective means
SQAO was ordered extended until further orders will be provided to couples desiring to space or
of the Court.63 limit family size; mortality and morbidity rates will
be further reduced."
Thereafter, the Court directed the parties to
submit their respective memoranda within sixty To further strengthen R.A. No. 6365, then
(60) days and, at the same time posed several President Ferdinand E . Marcos issued
questions for their clarification on some Presidential Decree. (P.D.) No. 79,68 dated
contentions of the parties.64 December 8, 1972, which, among others, made
"family planning a part of a broad educational
The Status Quo Ante program," provided "family planning services as
a part of over-all health care," and made
(Population, Contraceptive and Reproductive "available all acceptable methods of
Health Laws contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or
Prior to the RH Law preventing pregnancies."

Long before the incipience of the RH Law, the Through the years, however, the use of
country has allowed the sale, dispensation and contraceptives and family planning methods
distribution of contraceptive drugs and devices. evolved from being a component of
As far back as June 18, 1966, the country demographic management, to one centered on
enacted R.A. No. 4729 entitled "An Act to the promotion of public health, particularly,
Regu,late the Sale, Dispensation, and/or reproductive health.69 Under that policy, the
Distribution of Contraceptive Drugs and country gave priority to one's right to freely
Devices." Although contraceptive drugs and choose the method of family planning to be
devices were allowed, they could not be sold, adopted, in conformity with its adherence to the
dispensed or distributed "unless such sale, commitments made in the International
dispensation and distribution is by a duly Conference on Population and Development.70
licensed drug store or pharmaceutical company Thus, on August 14, 2009, the country enacted
and with the prescription of a qualified medical R.A. No. 9710 or "The Magna Carta for Women,
practitioner."65 " which, among others, mandated the State to
provide for comprehensive health services and
In addition, R.A. No. 5921,66 approved on June programs for women, including family planning
21, 1969, contained provisions relative to and sex education.71
"dispensing of abortifacients or anti-
conceptional substances and devices." Under The RH Law
Section 37 thereof, it was provided that "no drug
or chemical product or device capable of Despite the foregoing legislative measures, the
provoking abortion or preventing conception as population of the country kept on galloping at an
 CONSTI LAW II ACJUCO FINALS 140

uncontrollable pace. From a paltry number of the widespread dissemination of, and universal
just over 27 million Filipinos in 1960, the access to, a full range of family planning
population of the country reached over 76 million methods, devices and supplies.74
in the year 2000 and over 92 million in 2010.72
The executive and the legislative, thus, felt that ISSUES
the measures were still not adequate. To rein in
the problem, the RH Law was enacted to provide After a scrutiny of the various arguments and
Filipinos, especially the poor and the contentions of the parties, the Court has
marginalized, access and information to the full synthesized and refined them to the following
range of modem family planning methods, and principal issues:
to ensure that its objective to provide for the
peoples' right to reproductive health be I. PROCEDURAL: Whether the Court may
achieved. To make it more effective, the RH Law exercise its power of judicial review over the
made it mandatory for health providers to controversy.
provide information on the full range of modem
family planning methods, supplies and services, 1] Power of Judicial Review
and for schools to provide reproductive health
education. To put teeth to it, the RH Law 2] Actual Case or Controversy
criminalizes certain acts of refusals to carry out
its mandates. 3] Facial Challenge

Stated differently, the RH Law is an 4] Locus Standi

enhancement measure to fortify and make
effective the current laws on contraception, 5] Declaratory Relief
women's health and population control.
6] One Subject/One Title Rule
Prayer of the Petitioners - Maintain the Status
Quo II. SUBSTANTIVE: Whether the RH law is
unconstitutional:
The petitioners are one in praying that the entire
RH Law be declared unconstitutional. Petitioner 1] Right to Life
ALFI, in particular, argues that the government
sponsored contraception program, the very 2] Right to Health
essence of the RH Law, violates the right to
health of women and the sanctity of life, which 3] Freedom of Religion and the Right to Free
the State is mandated to protect and promote. Speech
Thus, ALFI prays that "the status quo ante - the
situation prior to the passage of the RH Law - 4] The Family
must be maintained."73 It explains:
5] Freedom of Expression and Academic
x x x. The instant Petition does not question Freedom
contraception and contraceptives per se. As
provided under Republic Act No. 5921 and 6] Due Process
Republic Act No. 4729, the sale and distribution
of contraceptives are prohibited unless 7] Equal Protection
dispensed by a prescription duly licensed by a
physician. What the Petitioners find deplorable 8] Involuntary Servitude
and repugnant under the RH Law is the role that
the State and its agencies - the entire 9] Delegation of Authority to the FDA
bureaucracy, from the cabinet secretaries down
to the barangay officials in the remotest areas of 10] Autonomy of Local Govemments/ARMM
the country - is made to play in the
implementation of the contraception program to DISCUSSION
the fullest extent possible using taxpayers'
money. The State then will be the funder and Before delving into the constitutionality of the RH
provider of all forms of family planning methods Law and its implementing rules, it behooves the
and the implementer of the program by ensuring Court to resolve some procedural impediments.
 CONSTI LAW II ACJUCO FINALS 141

vested in one Supreme Court and in such lower

I. PROCEDURAL ISSUE: Whether the Court courts as may be established by law.84 The
can exercise its power of judicial review over the Constitution has truly blocked out with deft
controversy. strokes and in bold lines, the allotment of powers
among the three branches of government.85
The Power of Judicial Review
In its relationship with its co-equals, the Judiciary
In its attempt to persuade the Court to stay its recognizes the doctrine of separation of powers
judicial hand, the OSG asserts that it should which imposes upon the courts proper restraint,
submit to the legislative and political wisdom of born of the nature of their functions and of their
Congress and respect the compromises made in respect for the other branches of government, in
the crafting of the RH Law, it being "a product of striking down the acts of the Executive or the
a majoritarian democratic process"75 and Legislature as unconstitutional. Verily, the policy
"characterized by an inordinate amount of is a harmonious blend of courtesy and
transparency."76 The OSG posits that the caution.86
authority of the Court to review social legislation
like the RH Law by certiorari is "weak," since the It has also long been observed, however, that in
Constitution vests the discretion to implement times of social disquietude or political instability,
the constitutional policies and positive norms the great landmarks of the Constitution are apt
with the political departments, in particular, with to be forgotten or marred, if not entirely
Congress.77 It further asserts that in view of the obliterated.87 In order to address this, the
Court's ruling in Southern Hemisphere v. Anti- Constitution impresses upon the Court to
Terrorism Council,78 the remedies of certiorari respect the acts performed by a co-equal branch
and prohibition utilized by the petitioners are done within its sphere of competence and
improper to assail the validity of the acts of the authority, but at the same time, allows it to cross
legislature.79 the line of separation - but only at a very limited
and specific point - to determine whether the
Moreover, the OSG submits that as an "as acts of the executive and the legislative
applied challenge," it cannot prosper branches are null because they were
considering that the assailed law has yet to be undertaken with grave abuse of discretion.88
enforced and applied to the petitioners, and that Thus, while the Court may not pass upon
the government has yet to distribute questions of wisdom, justice or expediency of
reproductive health devices that are abortive. It the RH Law, it may do so where an attendant
claims that the RH Law cannot be challenged unconstitutionality or grave abuse of discretion
"on its face" as it is not a speech-regulating results.89 The Court must demonstrate its
measure.80 unflinching commitment to protect those
cherished rights and principles embodied in the
In many cases involving the determination of the Constitution.
constitutionality of the actions of the Executive
and the Legislature, it is often sought that the In this connection, it bears adding that while the
Court temper its exercise of judicial power and scope of judicial power of review may be limited,
accord due respect to the wisdom of its co-equal the Constitution makes no distinction as to the
branch on the basis of the principle of separation kind of legislation that may be subject to judicial
of powers. To be clear, the separation of powers scrutiny, be it in the form of social legislation or
is a fundamental principle in our system of otherwise. The reason is simple and goes back
government, which obtains not through express to the earlier point. The Court may pass upon the
provision but by actual division in our constitutionality of acts of the legislative and the
Constitution. Each department of the executive branches, since its duty is not to
government has exclusive cognizance of review their collective wisdom but, rather, to
matters within its jurisdiction and is supreme make sure that they have acted in consonance
within its own sphere.81 with their respective authorities and rights as
mandated of them by the Constitution. If after
Thus, the 1987 Constitution provides that: (a) said review, the Court finds no constitutional
the legislative power shall be vested in the violations of any sort, then, it has no more
Congress of the Philippines;82 (b) the executive authority of proscribing the actions under
power shall be vested in the President of the review.90 This is in line with Article VIII, Section
Philippines;83 and (c) the judicial power shall be 1 of the Constitution which expressly provides:
 CONSTI LAW II ACJUCO FINALS 142

Lest it be misunderstood, it bears emphasizing

Section 1. The judicial power shall be vested in that the Court does not have the unbridled
one Supreme Court and in such lower courts as authority to rule on just any and every claim of
may be established by law. constitutional violation. Jurisprudence is replete
with the rule that the power of judicial review is
Judicial power includes the duty of the courts of limited by four exacting requisites, viz : (a) there
justice to settle actual controversies involving must be an actual case or controversy; (b) the
rights which are legally demandable and petitioners must possess locus standi; (c) the
enforceable, and to determine whether or not question of constitutionality must be raised at the
there has been a grave abuse of discretion earliest opportunity; and (d) the issue of
amounting to lack or excess of jurisdiction on the constitutionality must be the lis mota of the
part of any branch or instrumentality of the case.96
Government. [Emphases supplied]
Actual Case or Controversy
As far back as Tanada v. Angara,91 the Court
has unequivocally declared that certiorari, Proponents of the RH Law submit that the subj
prohibition and mandamus are appropriate ect petitions do not present any actual case or
remedies to raise constitutional issues and to controversy because the RH Law has yet to be
review and/or prohibit/nullify, when proper, acts implemented.97 They claim that the questions
of legislative and executive officials, as there is raised by the petitions are not yet concrete and
no other plain, speedy or adequate remedy in ripe for adjudication since no one has been
the ordinary course of law. This ruling was later charged with violating any of its provisions and
on applied in Macalintal v. COMELEC,92 Aldaba that there is no showing that any of the
v. COMELEC,93 Magallona v. Ermita,94 and petitioners' rights has been adversely affected
countless others. In Tanada, the Court wrote: by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.
In seeking to nullify an act of the Philippine
Senate on the ground that it contravenes the An actual case or controversy means an existing
Constitution, the petition no doubt raises a case or controversy that is appropriate or ripe for
justiciable controversy. Where an action of the determination, not conjectural or anticipatory,
legislative branch is seriously alleged to have lest the decision of the court would amount to an
infringed the Constitution, it becomes not only advisory opinion.99 The rule is that courts do not
the right but in fact the duty of the judiciary to sit to adjudicate mere academic questions to
settle the dispute. "The question thus posed is satisfy scholarly interest, however intellectually
judicial rather than political. The duty (to challenging. The controversy must be
adjudicate) remains to assure that the justiciable-definite and concrete, touching on the
supremacy of the Constitution is upheld. " Once legal relations of parties having adverse legal
a "controversy as to the application or interests. In other words, the pleadings must
interpretation of constitutional provision is raised show an active antagonistic assertion of a legal
before this Court (as in the instant case), it right, on the one hand, and a denial thereof, on
becomes a legal issue which the Court is bound the other; that is, it must concern a real, tangible
by constitutional mandate to decide. [Emphasis and not merely a theoretical question or issue.
supplied] There ought to be an actual and substantial
controversy admitting of specific relief through a
In the scholarly estimation of former Supreme decree conclusive in nature, as distinguished
Court Justice Florentino Feliciano, "judicial from an opinion advising what the law would be
review is essential for the maintenance and upon a hypothetical state of facts.100
enforcement of the separation of powers and the
balancing of powers among the three great Corollary to the requirement of an actual case or
departments of government through the controversy is the requirement of ripeness.101 A
definition and maintenance of the boundaries of question is ripe for adjudication when the act
authority and control between them. To him, being challenged has had a direct adverse effect
judicial review is the chief, indeed the only, on the individual challenging it. For a case to be
medium of participation - or instrument of considered ripe for adjudication, it is a
intervention - of the judiciary in that balancing prerequisite that something has then been
operation.95 accomplished or performed by either branch
before a court may come into the picture, and
 CONSTI LAW II ACJUCO FINALS 143

the petitioner must allege the existence of an

immediate or threatened injury to himself as a In United States (US) constitutional law, a facial
result of the challenged action. He must show challenge, also known as a First Amendment
that he has sustained or is immediately in danger Challenge, is one that is launched to assail the
of sustaining some direct injury as a result of the validity of statutes concerning not only protected
act complained of102 speech, but also all other rights in the First
Amendment.106 These include religious
In The Province of North Cotabato v. The freedom, freedom of the press, and the right of
Government of the Republic of the the people to peaceably assemble, and to
Philippines,103 where the constitutionality of an petition the Government for a redress of
unimplemented Memorandum of Agreement on grievances.107 After all, the fundamental right to
the Ancestral Domain (MOA-AD) was put in religious freedom, freedom of the press and
question, it was argued that the Court has no peaceful assembly are but component rights of
authority to pass upon the issues raised as there the right to one's freedom of expression, as they
was yet no concrete act performed that could are modes which one's thoughts are
possibly violate the petitioners' and the externalized.
intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question In this jurisdiction, the application of doctrines
being not yet effective does not negate ripeness. originating from the U.S. has been generally
Concrete acts under a law are not necessary to maintained, albeit with some modifications.
render the controversy ripe. Even a singular While this Court has withheld the application of
violation of the Constitution and/or the law is facial challenges to strictly penal statues,108 it
enough to awaken judicial duty. has expanded its scope to cover statutes not
only regulating free speech, but also those
In this case, the Court is of the view that an involving religious freedom, and other
actual case or controversy exists and that the fundamental rights.109 The underlying reason
same is ripe for judicial determination. for this modification is simple. For unlike its
Considering that the RH Law and its counterpart in the U.S., this Court, under its
implementing rules have already taken effect expanded jurisdiction, is mandated by the
and that budgetary measures to carry out the law Fundamental Law not only to settle actual
have already been passed, it is evident that the controversies involving rights which are legally
subject petitions present a justiciable demandable and enforceable, but also to
controversy. As stated earlier, when an action of determine whether or not there has been a grave
the legislative branch is seriously alleged to abuse of discretion amounting to lack or excess
have infringed the Constitution, it not only of jurisdiction on the part of any branch or
becomes a right, but also a duty of the Judiciary instrumentality of the Government.110 Verily,
to settle the dispute.104 the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to
Moreover, the petitioners have shown that the maintain the supremacy of the Constitution.
case is so because medical practitioners or
medical providers are in danger of being Consequently, considering that the foregoing
criminally prosecuted under the RH Law for petitions have seriously alleged that the
vague violations thereof, particularly public constitutional human rights to life, speech and
health officers who are threatened to be religion and other fundamental rights mentioned
dismissed from the service with forfeiture of above have been violated by the assailed
retirement and other benefits. They must, at legislation, the Court has authority to take
least, be heard on the matter NOW. cognizance of these kindred petitions and to
determine if the RH Law can indeed pass
Facial Challenge constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist
The OSG also assails the propriety of the facial no actual case or controversy, would diminish
challenge lodged by the subject petitions, this Court as a reactive branch of government,
contending that the RH Law cannot be acting only when the Fundamental Law has
challenged "on its face" as it is not a speech been transgressed, to the detriment of the
regulating measure.105 Filipino people.

The Court is not persuaded. Locus Standi

 CONSTI LAW II ACJUCO FINALS 144

allowed to question the constitutionality of

The OSG also attacks the legal personality of the several executive orders although they had only
petitioners to file their respective petitions. It an indirect and general interest shared in
contends that the "as applied challenge" lodged common with the public.
by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against With these said, even if the constitutionality of
them,111 and the government has yet to the RH Law may not be assailed through an "as-
distribute reproductive health devices that are applied challenge, still, the Court has time and
abortive.112 again acted liberally on the locus s tandi
requirement. It has accorded certain individuals
The petitioners, for their part, invariably invoke standing to sue, not otherwise directly injured or
the "transcendental importance" doctrine and with material interest affected by a Government
their status as citizens and taxpayers in act, provided a constitutional issue of
establishing the requisite locus standi. transcendental importance is invoked. The rule
on locus standi is, after all, a procedural
Locus standi or legal standing is defined as a technicality which the Court has, on more than
personal and substantial interest in a case such one occasion, waived or relaxed, thus allowing
that the party has sustained or will sustain direct non-traditional plaintiffs, such as concerned
injury as a result of the challenged governmental citizens, taxpayers, voters or legislators, to sue
act.113 It requires a personal stake in the in the public interest, albeit they may not have
outcome of the controversy as to assure the been directly injured by the operation of a law or
concrete adverseness which sharpens the any other government act. As held in Jaworski v.
presentation of issues upon which the court so PAGCOR:119
largely depends for illumination of difficult
constitutional questions.114 Granting arguendo that the present action
cannot be properly treated as a petition for
In relation to locus standi, the "as applied prohibition, the transcendental importance of the
challenge" embodies the rule that one can issues involved in this case warrants that we set
challenge the constitutionality of a statute only if aside the technical defects and take primary
he asserts a violation of his own rights. The rule jurisdiction over the petition at bar. One cannot
prohibits one from challenging the deny that the issues raised herein have
constitutionality of the statute grounded on a potentially pervasive influence on the social and
violation of the rights of third persons not before moral well being of this nation, specially the
the court. This rule is also known as the youth; hence, their proper and just determination
prohibition against third-party standing.115 is an imperative need. This is in accordance with
the well-entrenched principle that rules of
Transcendental Importance procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the
Notwithstanding, the Court leans on the doctrine administration of justice. Their strict and rigid
that "the rule on standing is a matter of application, which would result in technicalities
procedure, hence, can be relaxed for non- that tend to frustrate, rather than promote
traditional plaintiffs like ordinary citizens, substantial justice, must always be eschewed.
taxpayers, and legislators when the public (Emphasis supplied)
interest so requires, such as when the matter is
of transcendental importance, of overreaching In view of the seriousness, novelty and weight
significance to society, or of paramount public as precedents, not only to the public, but also to
interest."116 the bench and bar, the issues raised must be
resolved for the guidance of all. After all, the RH
In Coconut Oil Refiners Association, Inc. v. Law drastically affects the constitutional
Torres,117 the Court held that in cases of provisions on the right to life and health, the
paramount importance where serious freedom of religion and expression and other
constitutional questions are involved, the constitutional rights. Mindful of all these and the
standing requirement may be relaxed and a suit fact that the issues of contraception and
may be allowed to prosper even where there is reproductive health have already caused deep
no direct injury to the party claiming the right of division among a broad spectrum of society, the
judicial review. In the first Emergency Powers Court entertains no doubt that the petitions raise
Cases,118 ordinary citizens and taxpayers were issues of transcendental importance warranting
 CONSTI LAW II ACJUCO FINALS 145

immediate court adjudication. More importantly, access to information on the full range of modem
considering that it is the right to life of the mother family planning products and methods. These
and the unborn which is primarily at issue, the family planning methods, natural or modem,
Court need not wait for a life to be taken away however, are clearly geared towards the
before taking action. prevention of pregnancy.

The Court cannot, and should not, exercise For said reason, the manifest underlying
judicial restraint at this time when rights objective of the RH Law is to reduce the number
enshrined in the Constitution are being of births in the country.
imperilled to be violated. To do so, when the life
of either the mother or her child is at stake, would It cannot be denied that the measure also seeks
lead to irreparable consequences. to provide pre-natal and post-natal care as well.
A large portion of the law, however, covers the
Declaratory Relief dissemination of information and provisions on
access to medically-safe, non-abortifacient,
The respondents also assail the petitions effective, legal, affordable, and quality
because they are essentially petitions for reproductive health care services, methods,
declaratory relief over which the Court has no devices, and supplies, which are all intended to
original jurisdiction.120 Suffice it to state that prevent pregnancy.
most of the petitions are praying for injunctive
reliefs and so the Court would just consider them The Court, thus, agrees with the petitioners'
as petitions for prohibition under Rule 65, over contention that the whole idea of contraception
which it has original jurisdiction. Where the case pervades the entire RH Law. It is, in fact, the
has far-reaching implications and prays for central idea of the RH Law.126 Indeed, remove
injunctive reliefs, the Court may consider them the provisions that refer to contraception or are
as petitions for prohibition under Rule 65.121 related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other
One Subject-One Title positive provisions such as skilled birth
attendance, maternal care including pre-and
The petitioners also question the post-natal services, prevention and
constitutionality of the RH Law, claiming that it management of reproductive tract infections
violates Section 26(1 ), Article VI of the including HIV/AIDS are already provided for in
Constitution,122 prescribing the one subject-one the Magna Carta for Women."128
title rule. According to them, being one for
reproductive health with responsible Be that as it may, the RH Law does not violate
parenthood, the assailed legislation violates the the one subject/one bill rule. In Benjamin E.
constitutional standards of due process by Cawaling, Jr. v. The Commission on Elections
concealing its true intent - to act as a population and Rep. Francis Joseph G Escudero, it was
control measure.123 written:

To belittle the challenge, the respondents insist It is well-settled that the "one title-one subject"
that the RH Law is not a birth or population rule does not require the Congress to employ in
control measure,124 and that the concepts of the title of the enactment language of such
"responsible parenthood" and "reproductive precision as to mirror, fully index or catalogue all
health" are both interrelated as they are the contents and the minute details therein. The
inseparable.125 rule is sufficiently complied with if the title is
comprehensive enough as to include the general
Despite efforts to push the RH Law as a object which the statute seeks to effect, and
reproductive health law, the Court sees it as where, as here, the persons interested are
principally a population control measure. The informed of the nature, scope and
corpus of the RH Law is geared towards the consequences of the proposed law and its
reduction of the country's population. While it operation. Moreover, this Court has invariably
claims to save lives and keep our women and adopted a liberal rather than technical
children healthy, it also promotes pregnancy- construction of the rule "so as not to cripple or
preventing products. As stated earlier, the RH impede legislation." [Emphases supplied]
Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with
 CONSTI LAW II ACJUCO FINALS 146

In this case, a textual analysis of the various sanctioning contraceptives that take effect after
provisions of the law shows that both fertilization and prior to implantation, contrary to
"reproductive health" and "responsible the intent of the Framers of the Constitution to
parenthood" are interrelated and germane to the afford protection to the fertilized ovum which
overriding objective to control the population already has life.
growth. As expressed in the first paragraph of
Section 2 of the RH Law: They argue that even if Section 9 of the RH Law
allows only "non-abortifacient" hormonal
SEC. 2. Declaration of Policy. - The State contraceptives, intrauterine devices, injectables
recognizes and guarantees the human rights of and other safe, legal, non-abortifacient and
all persons including their right to equality and effective family planning products and supplies,
nondiscrimination of these rights, the right to medical research shows that contraceptives use
sustainable human development, the right to results in abortion as they operate to kill the
health which includes reproductive health, the fertilized ovum which already has life.131
right to education and information, and the right
to choose and make decisions for themselves in As it opposes the initiation of life, which is a
accordance with their religious convictions, fundamental human good, the petitioners assert
ethics, cultural beliefs, and the demands of that the State sanction of contraceptive use
responsible parenthood. contravenes natural law and is an affront to the
dignity of man.132
The one subject/one title rule expresses the
principle that the title of a law must not be "so Finally, it is contended that since Section 9 of the
uncertain that the average person reading it RH Law requires the Food and Drug
would not be informed of the purpose of the Administration (FDA) to certify that the product
enactment or put on inquiry as to its contents, or or supply is not to be used as an abortifacient,
which is misleading, either in referring to or the assailed legislation effectively confirms that
indicating one subject where another or different abortifacients are not prohibited. Also
one is really embraced in the act, or in omitting considering that the FDA is not the agency that
any expression or indication of the real subject will actually supervise or administer the use of
or scope of the act."129 these products and supplies to prospective
patients, there is no way it can truthfully make a
Considering the close intimacy between certification that it shall not be used for
"reproductive health" and "responsible abortifacient purposes.133
parenthood" which bears to the attainment of the
goal of achieving "sustainable human Position of the Respondents
development" as stated under its terms, the
Court finds no reason to believe that Congress For their part, the defenders of the RH Law point
intentionally sought to deceive the public as to out that the intent of the Framers of the
the contents of the assailed legislation. Constitution was simply the prohibition of
abortion. They contend that the RH Law does
II - SUBSTANTIVE ISSUES: not violate the Constitution since the said law
emphasizes that only "non-abortifacient"
1-The Right to Life reproductive health care services, methods,
Position of the Petitioners devices products and supplies shall be made
accessible to the public.134
The petitioners assail the RH Law because it
violates the right to life and health of the unborn According to the OSG, Congress has made a
child under Section 12, Article II of the legislative determination that contraceptives are
Constitution. The assailed legislation allowing not abortifacients by enacting the RH Law. As
access to abortifacients/abortives effectively the RH Law was enacted with due consideration
sanctions abortion.130 to various studies and consultations with the
World Health Organization (WHO) and other
According to the petitioners, despite its express experts in the medical field, it is asserted that the
terms prohibiting abortion, Section 4(a) of the Court afford deference and respect to such a
RH Law considers contraceptives that prevent determination and pass judgment only when a
the fertilized ovum to reach and be implanted in particular drug or device is later on determined
the mother's womb as an abortifacient; thus, as an abortive.135
 CONSTI LAW II ACJUCO FINALS 147

6365 or "The Population Act of the Philippines"

For his part, respondent Lagman argues that the and R.A. No. 9710, otherwise known as the "The
constitutional protection of one's right to life is Magna Carta of Women" were legislated.
not violated considering that various studies of Notwithstanding this paradigm shift, the
the WHO show that life begins from the Philippine national population program has
implantation of the fertilized ovum. always been grounded two cornerstone
Consequently, he argues that the RH Law is principles: "principle of no-abortion" and the
constitutional since the law specifically provides "principle of non-coercion."141 As will be
that only contraceptives that do not prevent the discussed later, these principles are not merely
implantation of the fertilized ovum are grounded on administrative policy, but rather,
allowed.136 originates from the constitutional protection
expressly provided to afford protection to life and
The Court's Position guarantee religious freedom.

It is a universally accepted principle that every When Life Begins*

human being enjoys the right to life.137
Majority of the Members of the Court are of the
Even if not formally established, the right to life, position that the question of when life begins is
being grounded on natural law, is inherent and, a scientific and medical issue that should not be
therefore, not a creation of, or dependent upon decided, at this stage, without proper hearing
a particular law, custom, or belief. It precedes and evidence. During the deliberation, however,
and transcends any authority or the laws of men. it was agreed upon that the individual members
of the Court could express their own views on
In this jurisdiction, the right to life is given more this matter.
than ample protection. Section 1, Article III of the
Constitution provides: In this regard, the ponente, is of the strong view
that life begins at fertilization.
Section 1. No person shall be deprived of life,
liberty, or property without due process of law, In answering the question of when life begins,
nor shall any person be denied the equal focus should be made on the particular phrase
protection of the laws. of Section 12 which reads:

As expounded earlier, the use of contraceptives Section 12. The State recognizes the sanctity of
and family planning methods in the Philippines family life and shall protect and strengthen the
is not of recent vintage. From the enactment of family as a basic autonomous social institution.
R.A. No. 4729, entitled "An Act To Regulate The It shall equally protect the life of the mother and
Sale, Dispensation, and/or Distribution of the life of the unborn from conception. The
Contraceptive Drugs and Devices "on June 18, natural and primary right and duty of parents in
1966, prescribing rules on contraceptive drugs the rearing of the youth for civic efficiency and
and devices which prevent fertilization,138 to the the development of moral character shall receive
promotion of male vasectomy and tubal the support of the Government.
ligation,139 and the ratification of numerous
international agreements, the country has long Textually, the Constitution affords protection to
recognized the need to promote population the unborn from conception. This is undisputable
control through the use of contraceptives in because before conception, there is no unborn
order to achieve long-term economic to speak of. For said reason, it is no surprise that
development. Through the years, however, the the Constitution is mute as to any proscription
use of contraceptives and other family planning prior to conception or when life begins. The
methods evolved from being a component of problem has arisen because, amazingly, there
demographic management, to one centered on are quarters who have conveniently disregarded
the promotion of public health, particularly, the scientific fact that conception is reckoned
reproductive health.140 from fertilization. They are waving the view that
life begins at implantation. Hence, the issue of
This has resulted in the enactment of various when life begins.
measures promoting women's rights and health
and the overall promotion of the family's well- In a nutshell, those opposing the RH Law
being. Thus, aside from R.A. No. 4729, R.A. No. contend that conception is synonymous with
 CONSTI LAW II ACJUCO FINALS 148

"fertilization" of the female ovum by the male female ovum by the male spermatozoon
sperm.142 On the other side of the spectrum are resulting in human life capable of survival and
those who assert that conception refers to the maturation under normal conditions.146
"implantation" of the fertilized ovum in the
uterus.143 Even in jurisprudence, an unborn child has
already a legal personality. In Continental Steel
Plain and Legal Meaning Manufacturing Corporation v. Hon. Accredited
Voluntary Arbitrator Allan S. Montano,147 it was
It is a canon in statutory construction that the written:
words of the Constitution should be interpreted
in their plain and ordinary meaning. As held in Life is not synonymous with civil personality.
the recent case of Chavez v. Judicial Bar One need not acquire civil personality first
Council:144 before he/she could die. Even a child inside the
womb already has life. No less than the
One of the primary and basic rules in statutory Constitution recognizes the life of the unborn
construction is that where the words of a statute from conception, that the State must protect
are clear, plain, and free from ambiguity, it must equally with the life of the mother. If the unborn
be given its literal meaning and applied without already has life, then the cessation thereof even
attempted interpretation. It is a well-settled prior to the child being delivered, qualifies as
principle of constitutional construction that the death. [Emphases in the original]
language employed in the Constitution must be
given their ordinary meaning except where In Gonzales v. Carhart,148 Justice Anthony
technical terms are employed. As much as Kennedy, writing for the US Supreme Court, said
possible, the words of the Constitution should be that the State "has respect for human life at all
understood in the sense they have in common stages in the pregnancy" and "a legitimate and
use. What it says according to the text of the substantial interest in preserving and promoting
provision to be construed compels acceptance fetal life." Invariably, in the decision, the fetus
and negates the power of the courts to alter it, was referred to, or cited, as a baby or a child.149
based on the postulate that the framers and the
people mean what they say. Verba legis non est Intent of the Framers
recedendum - from the words of a statute there
should be no departure. Records of the Constitutional Convention also
shed light on the intention of the Framers
The raison d' etre for the rule is essentially two- regarding the term "conception" used in Section
fold: First, because it is assumed that the words 12, Article II of the Constitution. From their
in which constitutional provisions are couched deliberations, it clearly refers to the moment of
express the objective sought to be attained; and "fertilization." The records reflect the following:
second, because the Constitution is not primarily
a lawyer's document but essentially that of the Rev. Rigos: In Section 9, page 3, there is a
people, in whose consciousness it should ever sentence which reads:
be present as an important condition for the rule
of law to prevail. "The State shall equally protect the life of the
mother and the life of the unborn from the
In conformity with the above principle, the moment of conception."
traditional meaning of the word "conception"
which, as described and defined by all reliable When is the moment of conception?
and reputable sources, means that life begins at
fertilization. xxx

Webster's Third New International Dictionary Mr. Villegas: As I explained in the sponsorship
describes it as the act of becoming pregnant, speech, it is when the ovum is fertilized by the
formation of a viable zygote; the fertilization that sperm that there is human life. x x x.150
results in a new entity capable of developing into
a being like its parents.145 xxx

Black's Law Dictionary gives legal meaning to

the term "conception" as the fecundation of the
 CONSTI LAW II ACJUCO FINALS 149

As to why conception is reckoned from Mr. Davide: I would not subscribe to that
fertilization and, as such, the beginning of particular view because according to the
human life, it was explained: Commissioner's own admission, he would leave
it to Congress to define when life begins. So,
Mr. Villegas: I propose to review this issue in a Congress can define life to begin from six
biological manner. The first question that needs months after fertilization; and that would really
to be answered is: Is the fertilized ovum alive? be very, very, dangerous. It is now determined
Biologically categorically says yes, the fertilized by science that life begins from the moment of
ovum is alive. First of all, like all living organisms, conception. There can be no doubt about it. So
it takes in nutrients which it processes by itself. we should not give any doubt to Congress,
It begins doing this upon fertilization. Secondly, too.153
as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in Upon further inquiry, it was asked:
the continuous process of cell division. All these
processes are vital signs of life. Therefore, there Mr. Gascon: Mr. Presiding Officer, I would like to
is no question that biologically the fertilized ask a question on that point. Actually, that is one
ovum has life. of the questions I was going to raise during the
period of interpellations but it has been
The second question: Is it human? Genetics expressed already. The provision, as proposed
gives an equally categorical "yes." At the right now states:
moment of conception, the nuclei of the ovum
and the sperm rupture. As this happens 23 The State shall equally protect the life of the
chromosomes from the ovum combine with 23 mother and the life of the unborn from the
chromosomes of the sperm to form a total of 46 moment of conception.
chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. When it speaks of "from the moment of
Therefore, the fertilized ovum is human. conception," does this mean when the egg
meets the sperm?
Since these questions have been answered
affirmatively, we must conclude that if the Mr. Villegas: Yes, the ovum is fertilized by the
fertilized ovum is both alive and human, then, as sperm.
night follows day, it must be human life. Its
nature is human.151 Mr. Gascon: Therefore that does not leave to
Congress the right to determine whether certain
Why the Constitution used the phrase "from the contraceptives that we know today are
moment of conception" and not "from the abortifacient or not because it is a fact that some
moment of fertilization" was not because of of the so-called contraceptives deter the rooting
doubt when human life begins, but rather, of the ovum in the uterus. If fertilization has
because: already occurred, the next process is for the
fertilized ovum to travel towards the uterus and
Mr. Tingson: x x x x the phrase from the moment to take root. What happens with some
of conception" was described by us here before contraceptives is that they stop the opportunity
with the scientific phrase "fertilized ovum" may for the fertilized ovum to reach the uterus.
be beyond the comprehension of some people; Therefore, if we take the provision as it is
we want to use the simpler phrase "from the proposed, these so called contraceptives should
moment of conception."152 be banned.

Thus, in order to ensure that the fertilized ovum Mr. Villegas: Yes, if that physical fact is
is given ample protection under the Constitution, established, then that is what is called
it was discussed: abortifacient and, therefore, would be
unconstitutional and should be banned under
Rev. Rigos: Yes, we think that the word "unborn" this provision.
is sufficient for the purpose of writing a
Constitution, without specifying "from the Mr. Gascon: Yes. So my point is that I do not
moment of conception." think it is up to Congress to state whether or not
these certain contraceptives are abortifacient.
Scientifically and based on the provision as it is
 CONSTI LAW II ACJUCO FINALS 150

now proposed, they are already considered "maybe," to certain contraceptives which are
abortifacient.154 already being encouraged at this point in time. Is
that the sense of the committee or does it
From the deliberations above-quoted, it is disagree with me?
apparent that the Framers of the Constitution
emphasized that the State shall provide equal Mr. Azcuna: No, Mr. Presiding Officer, because
protection to both the mother and the unborn contraceptives would be preventive. There is no
child from the earliest opportunity of life, that is, unborn yet. That is yet unshaped.
upon fertilization or upon the union of the male
sperm and the female ovum. It is also apparent Mr. Gascon: Yes, Mr. Presiding Officer, but I was
is that the Framers of the Constitution intended speaking more about some contraceptives, such
that to prohibit Congress from enacting as the intra-uterine device which actually stops
measures that would allow it determine when life the egg which has already been fertilized from
begins. taking route to the uterus. So if we say "from the
moment of conception," what really occurs is
Equally apparent, however, is that the Framers that some of these contraceptives will have to be
of the Constitution did not intend to ban all unconstitutionalized.
contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading Mr. Azcuna: Yes, to the extent that it is after the
the need to have a constitutional provision on the fertilization.
right to life, recognized that the determination of
whether a contraceptive device is an Mr. Gascon: Thank you, Mr. Presiding
abortifacient is a question of fact which should Officer.156
be left to the courts to decide on based on
established evidence.155 The fact that not all contraceptives are prohibited
by the 1987 Constitution is even admitted by
From the discussions above, contraceptives that petitioners during the oral arguments. There it
kill or destroy the fertilized ovum should be was conceded that tubal ligation, vasectomy,
deemed an abortive and thus prohibited. even condoms are not classified as
Conversely, contraceptives that actually prevent abortifacients.157
the union of the male sperm and the female
ovum, and those that similarly take action prior Atty. Noche:
to fertilization should be deemed non-abortive,
and thus, constitutionally permissible. Before the union of the eggs, egg and the sperm,
there is no life yet.
As emphasized by the Framers of the
Constitution: Justice Bersamin:

xxx xxx xxx There is no life.

Mr. Gascon: xx xx. As I mentioned in my speech Atty. Noche:

on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the So, there is no life to be protected.
unborn, but also the lives of the millions of
people in the world by fighting for a nuclear-free Justice Bersamin:
world. I would just like to be assured of the legal
and pragmatic implications of the term To be protected.
"protection of the life of the unborn from the
moment of conception." I raised some of these Atty. Noche:
implications this afternoon when I interjected in
the interpellation of Commissioner Regalado. I Under Section 12, yes.
would like to ask that question again for a
categorical answer. Justice Bersamin:

I mentioned that if we institutionalize the term So you have no objection to condoms?

"the life of the unborn from the moment of
conception" we are also actually saying "no," not Atty. Noche:
 CONSTI LAW II ACJUCO FINALS 151

form a new cell. This fertilized ovum, known as

Not under Section 12, Article II. a zygote, is a large diploid cell that is the
beginning, or primordium, of a human
Justice Bersamin: being."162

Even if there is already information that The authors of Human Embryology &
condoms sometimes have porosity? Teratology163 mirror the same position. They
wrote: "Although life is a continuous process,
Atty. Noche: fertilization is a critical landmark because, under
ordinary circumstances, a new, genetically
Well, yes, Your Honor, there are scientific distinct human organism is thereby formed....
findings to that effect, Your Honor, but I am The combination of 23 chromosomes present in
discussing here Section 12, Article II, Your each pronucleus results in 46 chromosomes in
Honor, yes. the zygote. Thus the diploid number is restored
and the embryonic genome is formed. The
Justice Bersamin: embryo now exists as a genetic unity."

Alright. In support of the RH Bill, The Philippine Medical

Association came out with a "Paper on the
Atty. Noche: Reproductive Health Bill (Responsible
Parenthood Bill)" and therein concluded that:
And it's not, I have to admit it's not an
abortifacient, Your Honor.158 CONCLUSION

Medical Meaning The PMA throws its full weight in supporting the
RH Bill at the same time that PMA maintains its
That conception begins at fertilization is not strong position that fertilization is sacred
bereft of medical foundation. Mosby s Medical, because it is at this stage that conception, and
Nursing, and Allied Health Dictionary defines thus human life, begins. Human lives are sacred
conception as "the beginning of pregnancy from the moment of conception, and that
usually taken to be the instant a spermatozoon destroying those new lives is never licit, no
enters an ovum and forms a viable zygote."159 matter what the purported good outcome would
be. In terms of biology and human embryology,
It describes fertilization as "the union of male a human being begins immediately at
and female gametes to form a zygote from which fertilization and after that, there is no point along
the embryo develops."160 the continuous line of human embryogenesis
where only a "potential" human being can be
The Textbook of Obstetrics (Physiological & posited. Any philosophical, legal, or political
Pathological Obstetrics),161 used by medical conclusion cannot escape this objective
schools in the Philippines, also concludes that scientific fact.
human life (human person) begins at the
moment of fertilization with the union of the egg The scientific evidence supports the conclusion
and the sperm resulting in the formation of a new that a zygote is a human organism and that the
individual, with a unique genetic composition life of a new human being commences at a
that dictates all developmental stages that scientifically well defined "moment of
ensue. conception." This conclusion is objective,
consistent with the factual evidence, and
Similarly, recent medical research on the matter independent of any specific ethical, moral,
also reveals that: "Human development begins political, or religious view of human life or of
after the union of male and female gametes or human embryos.164
germ cells during a process known as
fertilization (conception). Fertilization is a Conclusion: The Moment of Conception is
sequence of events that begins with the contact Reckoned from
of a sperm (spermatozoon) with a secondary Fertilization
oocyte (ovum) and ends with the fusion of their
pronuclei (the haploid nuclei of the sperm and In all, whether it be taken from a plain meaning,
ovum) and the mingling of their chromosomes to or understood under medical parlance, and
 CONSTI LAW II ACJUCO FINALS 152

more importantly, following the intention of the the principal proponent of the protection of the
Framers of the Constitution, the undeniable unborn from conception, explained:
conclusion is that a zygote is a human organism
and that the life of a new human being The intention .. .is to make sure that there would
commences at a scientifically well-defined be no pro-abortion laws ever passed by
moment of conception, that is, upon fertilization. Congress or any pro-abortion decision passed
by the Supreme Court.169
For the above reasons, the Court cannot
subscribe to the theory advocated by Hon. A reading of the RH Law would show that it is in
Lagman that life begins at implantation.165 line with this intent and actually proscribes
According to him, "fertilization and conception abortion. While the Court has opted not to make
are two distinct and successive stages in the any determination, at this stage, when life
reproductive process. They are not identical and begins, it finds that the RH Law itself clearly
synonymous."166 Citing a letter of the WHO, he mandates that protection be afforded from the
wrote that "medical authorities confirm that the moment of fertilization. As pointed out by Justice
implantation of the fertilized ovum is the Carpio, the RH Law is replete with provisions
commencement of conception and it is only after that embody the policy of the law to protect to
implantation that pregnancy can be medically the fertilized ovum and that it should be afforded
detected."167 safe travel to the uterus for implantation.170

This theory of implantation as the beginning of Moreover, the RH Law recognizes that abortion
life is devoid of any legal or scientific mooring. It is a crime under Article 256 of the Revised Penal
does not pertain to the beginning of life but to the Code, which penalizes the destruction or
viability of the fetus. The fertilized ovum/zygote expulsion of the fertilized ovum. Thus:
is not an inanimate object - it is a living human
being complete with DNA and 46 1] xx x.
chromosomes.168 Implantation has been
conceptualized only for convenience by those Section 4. Definition of Terms. - For the purpose
who had population control in mind. To adopt it of this Act, the following terms shall be defined
would constitute textual infidelity not only to the as follows:
RH Law but also to the Constitution.
xxx.
Not surprisingly, even the OSG does not support
this position. (q) Reproductive health care refers to the access
to a full range of methods, facilities, services and
If such theory would be accepted, it would supplies that contribute to reproductive health
unnervingly legitimize the utilization of any drug and well-being by addressing reproductive
or device that would prevent the implantation of health-related problems. It also includes sexual
the fetus at the uterine wall. It would be health, the purpose of which is the enhancement
provocative and further aggravate religious- of life and personal relations. The elements of
based divisiveness. reproductive health care include the following:

It would legally permit what the Constitution xxx.

proscribes - abortion and abortifacients.
(3) Proscription of abortion and management of
The RH Law and Abortion abortion complications;

The clear and unequivocal intent of the Framers xxx.

of the 1987 Constitution in protecting the life of
the unborn from conception was to prevent the 2] xx x.
Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court Section 4. x x x.
cannot interpret it otherwise. This intent of the
Framers was captured in the record of the (s) Reproductive health rights refers to the rights
proceedings of the 1986 Constitutional of individuals and couples, to decide freely and
Commission. Commissioner Bernardo Villegas, responsibly whether or not to have children; the
number, spacing and timing of their children; to
 CONSTI LAW II ACJUCO FINALS 153

make other decisions concerning reproduction, the fertilized ovum already has life and that the
free of discrimination, coercion and violence; to State has a bounden duty to protect it. The
have the information and means to do so; and to conclusion becomes clear because the RH Law,
attain the highest standard of sexual health and first, prohibits any drug or device that induces
reproductive health: Provided, however, That abortion (first kind), which, as discussed
reproductive health rights do not include exhaustively above, refers to that which induces
abortion, and access to abortifacients. the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device
3] xx x. the fertilized ovum to reach and be implanted in
the mother's womb (third kind).
SEC. 29. Repealing Clause. - Except for
prevailing laws against abortion, any law, By expressly declaring that any drug or device
presidential decree or issuance, executive order, that prevents the fertilized ovum to reach and be
letter of instruction, administrative order, rule or implanted in the mother's womb is an
regulation contrary to or is inconsistent with the abortifacient (third kind), the RH Law does not
provisions of this Act including Republic Act No. intend to mean at all that life only begins only at
7392, otherwise known as the Midwifery Act, is implantation, as Hon. Lagman suggests. It also
hereby repealed, modified or amended does not declare either that protection will only
accordingly. be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one,
The RH Law and Abortifacients there is a need to protect the fertilized ovum
which already has life, and two, the fertilized
In carrying out its declared policy, the RH Law is ovum must be protected the moment it becomes
consistent in prohibiting abortifacients. To be existent - all the way until it reaches and implants
clear, Section 4(a) of the RH Law defines an in the mother's womb. After all, if life is only
abortifacient as: recognized and afforded protection from the
moment the fertilized ovum implants - there is
Section 4. Definition of Terms - x x x x nothing to prevent any drug or device from killing
or destroying the fertilized ovum prior to
(a) Abortifacient refers to any drug or device that implantation.
induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of From the foregoing, the Court finds that
the fertilized ovum to reach and be implanted in inasmuch as it affords protection to the fertilized
the mother's womb upon determination of the ovum, the RH Law does not sanction abortion.
FDA. To repeat, it is the Court's position that life
begins at fertilization, not at implantation. When
As stated above, the RH Law mandates that a fertilized ovum is implanted in the uterine wall
protection must be afforded from the moment of , its viability is sustained but that instance of
fertilization. By using the word " or," the RH Law implantation is not the point of beginning of life.
prohibits not only drugs or devices that prevent It started earlier. And as defined by the RH Law,
implantation, but also those that induce abortion any drug or device that induces abortion, that is,
and those that induce the destruction of a fetus which kills or destroys the fertilized ovum or
inside the mother's womb. Thus, an abortifacient prevents the fertilized ovum to reach and be
is any drug or device that either: implanted in the mother's womb, is an
abortifacient.
(a) Induces abortion; or
Proviso Under Section 9 of the RH Law
(b) Induces the destruction of a fetus inside the
mother's womb; or This notwithstanding, the Court finds that the
proviso under Section 9 of the law that "any
(c) Prevents the fertilized ovum to reach and be product or supply included or to be included in
implanted in the mother's womb, upon the EDL must have a certification from the FDA
determination of the FDA. that said product and supply is made available
on the condition that it is not to be used as an
Contrary to the assertions made by the abortifacient" as empty as it is absurd. The FDA,
petitioners, the Court finds that the RH Law, with all its expertise, cannot fully attest that a
consistent with the Constitution, recognizes that drug or device will not all be used as an
 CONSTI LAW II ACJUCO FINALS 154

abortifacient, since the agency cannot be Again in Section 3.0lG) of the RH-IRR,
present in every instance when the "contraceptive," is redefined, viz:
contraceptive product or supply will be used.171
j) Contraceptive refers to any safe, legal,
Pursuant to its declared policy of providing effective and scientifically proven modern family
access only to safe, legal and non-abortifacient planning method, device, or health product,
contraceptives, however, the Court finds that the whether natural or artificial, that prevents
proviso of Section 9, as worded, should bend to pregnancy but does not primarily destroy a
the legislative intent and mean that "any product fertilized ovum or prevent a fertilized ovum from
or supply included or to be included in the EDL being implanted in the mother's womb in doses
must have a certification from the FDA that said of its approved indication as determined by the
product and supply is made available on the Food and Drug Administration (FDA).
condition that it cannot be used as abortifacient."
Such a construction is consistent with the The above-mentioned section of the RH-IRR
proviso under the second paragraph of the same allows "contraceptives" and recognizes as
section that provides: "abortifacient" only those that primarily induce
abortion or the destruction of a fetus inside the
Provided, further, That the foregoing offices shall mother's womb or the prevention of the fertilized
not purchase or acquire by any means ovum to reach and be implanted in the mother's
emergency contraceptive pills, postcoital pills, womb.172
abortifacients that will be used for such purpose
and their other forms or equivalent. This cannot be done.

Abortifacients under the RH-IRR In this regard, the observations of Justice Brion
and Justice Del Castillo are well taken. As they
At this juncture, the Court agrees with ALFI that pointed out, with the insertion of the word
the authors of the RH-IRR gravely abused their "primarily," Section 3.0l(a) and G) of the RH-
office when they redefined the meaning of IRR173 must be struck down for being ultra
abortifacient. The RH Law defines "abortifacient" vires.
as follows:
Evidently, with the addition of the word
SEC. 4. Definition of Terms. - For the purpose of "primarily," in Section 3.0l(a) and G) of the RH-
this Act, the following terms shall be defined as IRR is indeed ultra vires. It contravenes Section
follows: 4(a) of the RH Law and should, therefore, be
declared invalid. There is danger that the
(a) Abortifacient refers to any drug or device that insertion of the qualifier "primarily" will pave the
induces abortion or the destruction of a fetus way for the approval of contraceptives which
inside the mother's womb or the prevention of may harm or destroy the life of the unborn from
the fertilized ovum to reach and be implanted in conception/fertilization in violation of Article II,
the mother's womb upon determination of the Section 12 of the Constitution. With such
FDA. qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be
Section 3.0l (a) of the IRR, however, redefines considered as an "abortifacient" if its sole known
"abortifacient" as: effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized
Section 3.01 For purposes of these Rules, the ovum.
terms shall be defined as follows:
For the same reason, this definition of
a) Abortifacient refers to any drug or device that "contraceptive" would permit the approval of
primarily induces abortion or the destruction of a contraceptives which are actually abortifacients
fetus inside the mother's womb or the prevention because of their fail-safe mechanism.174
of the fertilized ovum to reach and be implanted
in the mother's womb upon determination of the Also, as discussed earlier, Section 9 calls for the
Food and Drug Administration (FDA). [Emphasis certification by the FDA that these
supplied] contraceptives cannot act as abortive. With this,
together with the definition of an abortifacient
under Section 4 (a) of the RH Law and its
 CONSTI LAW II ACJUCO FINALS 155

declared policy against abortion, the undeniable petitioners assert that the assailed legislation
conclusion is that contraceptives to be included only seeks to ensure that women have
in the PNDFS and the EDL will not only be those pleasurable and satisfying sex lives.180
contraceptives that do not have the primary
action of causing abortion or the destruction of a The OSG, however, points out that Section 15,
fetus inside the mother's womb or the prevention Article II of the Constitution is not self-executory,
of the fertilized ovum to reach and be implanted it being a mere statement of the administration's
in the mother's womb, but also those that do not principle and policy. Even if it were self-
have the secondary action of acting the same executory, the OSG posits that medical
way. authorities refute the claim that contraceptive
pose a danger to the health of women.181
Indeed, consistent with the constitutional policy
prohibiting abortion, and in line with the principle The Court's Position
that laws should be construed in a manner that
its constitutionality is sustained, the RH Law and A component to the right to life is the
its implementing rules must be consistent with constitutional right to health. In this regard, the
each other in prohibiting abortion. Thus, the Constitution is replete with provisions protecting
word " primarily" in Section 3.0l(a) and G) of the and promoting the right to health. Section 15,
RH-IRR should be declared void. To uphold the Article II of the Constitution provides:
validity of Section 3.0l(a) and G) of the RH-IRR
and prohibit only those contraceptives that have Section 15. The State shall protect and promote
the primary effect of being an abortive would the right to health of the people and instill health
effectively "open the floodgates to the approval consciousness among them.
of contraceptives which may harm or destroy the
life of the unborn from conception/fertilization in A portion of Article XIII also specifically provides
violation of Article II, Section 12 of the for the States' duty to provide for the health of
Constitution."175 the people, viz:

To repeat and emphasize, in all cases, the HEALTH

"principle of no abortion" embodied in the
constitutional protection of life must be upheld. Section 11. The State shall adopt an integrated
and comprehensive approach to health
2-The Right to Health development which shall endeavor to make
essential goods, health and other social services
The petitioners claim that the RH Law violates available to all the people at affordable cost.
the right to health because it requires the There shall be priority for the needs of the
inclusion of hormonal contraceptives, underprivileged, sick, elderly, disabled, women,
intrauterine devices, injectables and family and children. The State shall endeavor to
products and supplies in the National Drug provide free medical care to paupers.
Formulary and the inclusion of the same in the
regular purchase of essential medicines and Section 12. The State shall establish and
supplies of all national hospitals.176 Citing maintain an effective food and drug regulatory
various studies on the matter, the petitioners system and undertake appropriate health,
posit that the risk of developing breast and manpower development, and research,
cervical cancer is greatly increased in women responsive to the country's health needs and
who use oral contraceptives as compared to problems.
women who never use them. They point out that
the risk is decreased when the use of Section 13. The State shall establish a special
contraceptives is discontinued. Further, it is agency for disabled person for their
contended that the use of combined oral rehabilitation, self-development, and self-
contraceptive pills is associated with a threefold reliance, and their integration into the
increased risk of venous thromboembolism, a mainstream of society.
twofold increased risk of ischematic stroke, and
an indeterminate effect on risk of myocardial Finally, Section 9, Article XVI provides:
infarction.177 Given the definition of
"reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the
 CONSTI LAW II ACJUCO FINALS 156

Section 9. The State shall protect consumers will still require the prescription of a licensed
from trade malpractices and from substandard physician. With R.A. No. 4729 in place, there
or hazardous products. exists adequate safeguards to ensure the public
that only contraceptives that are safe are made
Contrary to the respondent's notion, however, available to the public. As aptly explained by
these provisions are self-executing. Unless the respondent Lagman:
provisions clearly express the contrary, the
provisions of the Constitution should be D. Contraceptives cannot be dispensed and
considered self-executory. There is no need for used without prescription
legislation to implement these self-executing
provisions.182 In Manila Prince Hotel v. 108. As an added protection to voluntary users
GSIS,183 it was stated: of contraceptives, the same cannot be
dispensed and used without prescription.
x x x Hence, unless it is expressly provided that
a legislative act is necessary to enforce a 109. Republic Act No. 4729 or "An Act to
constitutional mandate, the presumption now is Regulate the Sale, Dispensation, and/ or
that all provisions of the constitution are self- Distribution of Contraceptive Drugs and
executing. If the constitutional provisions are Devices" and Republic Act No. 5921 or "An Act
treated as requiring legislation instead of self- Regulating the Practice of Pharmacy and Setting
executing, the legislature would have the power Standards of Pharmaceutical Education in the
to ignore and practically nullify the mandate of Philippines and for Other Purposes" are not
the fundamental law. This can be cataclysmic. repealed by the RH Law and the provisions of
That is why the prevailing view is, as it has said Acts are not inconsistent with the RH Law.
always been, that –
110. Consequently, the sale, distribution and
... in case of doubt, the Constitution should be dispensation of contraceptive drugs and devices
considered self-executing rather than non-self- are particularly governed by RA No. 4729 which
executing. . . . Unless the contrary is clearly provides in full:
intended, the provisions of the Constitution
should be considered self-executing, as a "Section 1. It shall be unlawful for any person,
contrary rule would give the legislature partnership, or corporation, to sell, dispense or
discretion to determine when, or whether, they otherwise distribute whether for or without
shall be effective. These provisions would be consideration, any contraceptive drug or device,
subordinated to the will of the lawmaking body, unless such sale, dispensation or distribution is
which could make them entirely meaningless by by a duly licensed drug store or pharmaceutical
simply refusing to pass the needed company and with the prescription of a qualified
implementing statute. (Emphases supplied) medical practitioner.

This notwithstanding, it bears mentioning that "Sec. 2 . For the purpose of this Act:
the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In "(a) "Contraceptive drug" is any medicine, drug,
fact, ALFI prays that the status quo - under R.A. chemical, or portion which is used exclusively for
No. 5921 and R.A. No. 4729, the sale and the purpose of preventing fertilization of the
distribution of contraceptives are not prohibited female ovum: and
when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185 "(b) "Contraceptive device" is any instrument,
device, material, or agent introduced into the
The legislative intent in the enactment of the RH female reproductive system for the primary
Law in this regard is to leave intact the provisions purpose of preventing conception.
of R.A. No. 4729. There is no intention at all to
do away with it. It is still a good law and its "Sec. 3 Any person, partnership, or corporation,
requirements are still in to be complied with. violating the provisions of this Act shall be
Thus, the Court agrees with the observation of punished with a fine of not more than five
respondent Lagman that the effectivity of the RH hundred pesos or an imprisonment of not less
Law will not lead to the unmitigated proliferation than six months or more than one year or both
of contraceptives since the sale, distribution and in the discretion of the Court.
dispensation of contraceptive drugs and devices
 CONSTI LAW II ACJUCO FINALS 157

"This Act shall take effect upon its approval. Thus, in the distribution by the DOH of
contraceptive drugs and devices, it must
"Approved: June 18, 1966" consider the provisions of R.A. No. 4729, which
is still in effect, and ensure that the
111. Of the same import, but in a general contraceptives that it will procure shall be from a
manner, Section 25 of RA No. 5921 provides: duly licensed drug store or pharmaceutical
company and that the actual dispensation of
"Section 25. Sale of medicine, pharmaceuticals, these contraceptive drugs and devices will done
drugs and devices. No medicine, following a prescription of a qualified medical
pharmaceutical, or drug of whatever nature and practitioner. The distribution of contraceptive
kind or device shall be compounded, dispensed, drugs and devices must not be indiscriminately
sold or resold, or otherwise be made available to done. The public health must be protected by all
the consuming public except through a possible means. As pointed out by Justice De
prescription drugstore or hospital pharmacy, Castro, a heavy responsibility and burden are
duly established in accordance with the assumed by the government in supplying
provisions of this Act. contraceptive drugs and devices, for it may be
held accountable for any injury, illness or loss of
112. With all of the foregoing safeguards, as life resulting from or incidental to their use.187
provided for in the RH Law and other relevant
statutes, the pretension of the petitioners that At any rate, it bears pointing out that not a single
the RH Law will lead to the unmitigated contraceptive has yet been submitted to the FDA
proliferation of contraceptives, whether harmful pursuant to the RH Law. It behooves the Court
or not, is completely unwarranted and to await its determination which drugs or devices
baseless.186 [Emphases in the Original. are declared by the FDA as safe, it being the
Underlining supplied.] agency tasked to ensure that food and
medicines available to the public are safe for
In Re: Section 10 of the RH Law: public consumption. Consequently, the Court
finds that, at this point, the attack on the RH Law
The foregoing safeguards should be read in on this ground is premature. Indeed, the various
connection with Section 10 of the RH Law which kinds of contraceptives must first be measured
provides: up to the constitutional yardstick as expounded
herein, to be determined as the case presents
SEC. 10. Procurement and Distribution of Family itself.
Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of At this point, the Court is of the strong view that
family planning supplies for the whole country. Congress cannot legislate that hormonal
The DOH shall coordinate with all appropriate contraceptives and intra-uterine devices are
local government bodies to plan and implement safe and non-abortifacient. The first sentence of
this procurement and distribution program. The Section 9 that ordains their inclusion by the
supply and budget allotments shall be based on, National Drug Formulary in the EDL by using the
among others, the current levels and projections mandatory "shall" is to be construed as operative
of the following: only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress,
(a) Number of women of reproductive age and has the expertise to determine whether a
couples who want to space or limit their children; particular hormonal contraceptive or intrauterine
device is safe and non-abortifacient. The
(b) Contraceptive prevalence rate, by type of provision of the third sentence concerning the
method used; and requirements for the inclusion or removal of a
particular family planning supply from the EDL
(c) Cost of family planning supplies. supports this construction.

Provided, That LGUs may implement its own Stated differently, the provision in Section 9
procurement, distribution and monitoring covering the inclusion of hormonal
program consistent with the overall provisions of contraceptives, intra-uterine devices,
this Act and the guidelines of the DOH. injectables, and other safe, legal, non-
abortifacient and effective family planning
products and supplies by the National Drug
 CONSTI LAW II ACJUCO FINALS 158

Formulary in the EDL is not mandatory. There

must first be a determination by the FDA that They further argue that even if the conscientious
they are in fact safe, legal, non-abortifacient and objector's duty to refer is recognized, the
effective family planning products and supplies. recognition is unduly limited, because although
There can be no predetermination by Congress it allows a conscientious objector in Section 23
that the gamut of contraceptives are "safe, legal, (a)(3) the option to refer a patient seeking
non-abortifacient and effective" without the reproductive health services and information -
proper scientific examination. no escape is afforded the conscientious objector
in Section 23 (a)(l) and (2), i.e. against a patient
3 -Freedom of Religion and the Right to Free seeking reproductive health procedures. They
Speech claim that the right of other individuals to
conscientiously object, such as: a) those
Position of the Petitioners: working in public health facilities referred to in
Section 7; b) public officers involved in the
1. On Contraception implementation of the law referred to in Section
23(b ); and c) teachers in public schools referred
While contraceptives and procedures like to in Section 14 of the RH Law, are also not
vasectomy and tubal ligation are not covered by recognize.191
the constitutional proscription, there are those
who, because of their religious education and Petitioner Echavez and the other medical
background, sincerely believe that practitioners meanwhile, contend that the
contraceptives, whether abortifacient or not, are requirement to refer the matter to another health
evil. Some of these are medical practitioners care service provider is still considered a
who essentially claim that their beliefs prohibit compulsion on those objecting healthcare
not only the use of contraceptives but also the service providers. They add that compelling
willing participation and cooperation in all things them to do the act against their will violates the
dealing with contraceptive use. Petitioner PAX Doctrine of Benevolent Neutrality. Sections 9, 14
explained that "contraception is gravely opposed and 1 7 of the law are too secular that they tend
to marital chastity, it is contrary to the good of to disregard the religion of Filipinos. Authorizing
the transmission of life, and to the reciprocal self- the use of contraceptives with abortive effects,
giving of the spouses; it harms true love and mandatory sex education, mandatory pro-bono
denies the sovereign rule of God in the reproductive health services to indigents
transmission of Human life."188 encroach upon the religious freedom of those
upon whom they are required.192
The petitioners question the State-sponsored
procurement of contraceptives, arguing that the Petitioner CFC also argues that the requirement
expenditure of their taxes on contraceptives for a conscientious objector to refer the person
violates the guarantee of religious freedom since seeking reproductive health care services to
contraceptives contravene their religious another provider infringes on one's freedom of
beliefs.189 religion as it forces the objector to become an
unwilling participant in the commission of a
2. On Religious Accommodation and The serious sin under Catholic teachings. While the
Duty to Refer right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are
Petitioners Imbong and Luat note that while the passive acts which produce neither harm nor
RH Law attempts to address religious injury to the public.193
sentiments by making provisions for a
conscientious objector, the constitutional Petitioner CFC adds that the RH Law does not
guarantee is nonetheless violated because the show compelling state interest to justify
law also imposes upon the conscientious regulation of religious freedom because it
objector the duty to refer the patient seeking mentions no emergency, risk or threat that
reproductive health services to another medical endangers state interests. It does not explain
practitioner who would be able to provide for the how the rights of the people (to equality, non-
patient's needs. For the petitioners, this amounts discrimination of rights, sustainable human
to requiring the conscientious objector to development, health, education, information,
cooperate with the very thing he refuses to do choice and to make decisions according to
without violating his/her religious beliefs.190 religious convictions, ethics, cultural beliefs and
 CONSTI LAW II ACJUCO FINALS 159

the demands of responsible parenthood) are constitutional guarantee of religious freedom, it

being threatened or are not being met as to being a carefully balanced compromise between
justify the impairment of religious freedom.194 the interests of the religious objector, on one
hand, who is allowed to keep silent but is
Finally, the petitioners also question Section 15 required to refer -and that of the citizen who
of the RH Law requiring would-be couples to needs access to information and who has the
attend family planning and responsible right to expect that the health care professional
parenthood seminars and to obtain a certificate in front of her will act professionally. For the
of compliance. They claim that the provision respondents, the concession given by the State
forces individuals to participate in the under Section 7 and 23(a)(3) is sufficient
implementation of the RH Law even if it accommodation to the right to freely exercise
contravenes their religious beliefs.195 As the one's religion without unnecessarily infringing on
assailed law dangles the threat of penalty of fine the rights of others.202
and/or imprisonment in case of non-compliance
with its provisions, the petitioners claim that the Whatever burden is placed on the petitioner's
RH Law forcing them to provide, support and religious freedom is minimal as the duty to refer
facilitate access and information to is limited in duration, location and impact.203
contraception against their beliefs must be
struck down as it runs afoul to the constitutional Regarding mandatory family planning seminars
guarantee of religious freedom. under Section 15 , the respondents claim that it
is a reasonable regulation providing an
The Respondents' Positions opportunity for would-be couples to have access
to information regarding parenthood, family
The respondents, on the other hand, contend planning, breastfeeding and infant nutrition. It is
that the RH Law does not provide that a specific argued that those who object to any information
mode or type of contraceptives be used, be it received on account of their attendance in the
natural or artificial. It neither imposes nor required seminars are not compelled to accept
sanctions any religion or belief.196 They point information given to them. They are completely
out that the RH Law only seeks to serve the free to reject any information they do not agree
public interest by providing accessible, effective with and retain the freedom to decide on matters
and quality reproductive health services to of family life without intervention of the State.204
ensure maternal and child health, in line with the
State's duty to bring to reality the social justice For their part, respondents De Venecia et al.,
health guarantees of the Constitution,197 and dispute the notion that natural family planning is
that what the law only prohibits are those acts or the only method acceptable to Catholics and the
practices, which deprive others of their right to Catholic hierarchy. Citing various studies and
reproductive health.198 They assert that the surveys on the matter, they highlight the
assailed law only seeks to guarantee informed changing stand of the Catholic Church on
choice, which is an assurance that no one will be contraception throughout the years and note the
compelled to violate his religion against his free general acceptance of the benefits of
will.199 contraceptives by its followers in planning their
families.
The respondents add that by asserting that only
natural family planning should be allowed, the The Church and The State
petitioners are effectively going against the
constitutional right to religious freedom, the At the outset, it cannot be denied that we all live
same right they invoked to assail the in a heterogeneous society. It is made up of
constitutionality of the RH Law.200 In other people of diverse ethnic, cultural and religious
words, by seeking the declaration that the RH beliefs and backgrounds. History has shown us
Law is unconstitutional, the petitioners are that our government, in law and in practice, has
asking that the Court recognize only the Catholic allowed these various religious, cultural, social
Church's sanctioned natural family planning and racial groups to thrive in a single society
methods and impose this on the entire together. It has embraced minority groups and is
citizenry.201 tolerant towards all - the religious people of
different sects and the non-believers. The
With respect to the duty to refer, the respondents undisputed fact is that our people generally
insist that the same does not violate the believe in a deity, whatever they conceived Him
 CONSTI LAW II ACJUCO FINALS 160

to be, and to whom they call for guidance and Consistent with the principle that not any one
enlightenment in crafting our fundamental law. religion should ever be preferred over another,
Thus, the preamble of the present Constitution the Constitution in the above-cited provision
reads: utilizes the term "church" in its generic sense,
which refers to a temple, a mosque, an iglesia,
We, the sovereign Filipino people, imploring the or any other house of God which metaphorically
aid of Almighty God, in order to build a just and symbolizes a religious organization. Thus, the
humane society, and establish a Government "Church" means the religious congregations
that shall embody our ideals and aspirations, collectively.
promote the common good, conserve and
develop our patrimony, and secure to ourselves Balancing the benefits that religion affords and
and our posterity, the blessings of independence the need to provide an ample barrier to protect
and democracy under the rule of law and a the State from the pursuit of its secular
regime of truth, justice, freedom, love, equality, objectives, the Constitution lays down the
and peace, do ordain and promulgate this following mandate in Article III, Section 5 and
Constitution. Article VI, Section 29 (2), of the 1987
Constitution:
The Filipino people in "imploring the aid of
Almighty God " manifested their spirituality Section. 5. No law shall be made respecting an
innate in our nature and consciousness as a establishment of religion, or prohibiting the free
people, shaped by tradition and historical exercise thereof. The free exercise and
experience. As this is embodied in the preamble, enjoyment of religious profession and worship,
it means that the State recognizes with respect without discrimination or preference, shall
the influence of religion in so far as it instills into forever be allowed. No religious test shall be
the mind the purest principles of morality.205 required for the exercise of civil or political rights.
Moreover, in recognition of the contributions of
religion to society, the 1935, 1973 and 1987 Section 29.
constitutions contain benevolent and
accommodating provisions towards religions xxx.
such as tax exemption of church property, salary
of religious officers in government institutions, No public money or property shall be
and optional religious instructions in public appropriated, applied, paid, or employed,
schools. directly or indirectly, for the use, benefit, or
support of any sect, church, denomination,
The Framers, however, felt the need to put up a sectarian institution, or system of religion, or of
strong barrier so that the State would not any priest, preacher, minister, other religious
encroach into the affairs of the church, and vice- teacher, or dignitary as such, except when such
versa. The principle of separation of Church and priest, preacher, minister, or dignitary is
State was, thus, enshrined in Article II, Section 6 assigned to the armed forces, or to any penal
of the 1987 Constitution, viz: institution, or government orphanage or
leprosarium.
Section 6. The separation of Church and State
shall be inviolable. In short, the constitutional assurance of religious
freedom provides two guarantees: the
Verily, the principle of separation of Church and Establishment Clause and the Free Exercise
State is based on mutual respect.1âwphi1 Clause.
Generally, the State cannot meddle in the
internal affairs of the church, much less question The establishment clause "principally prohibits
its faith and dogmas or dictate upon it. It cannot the State from sponsoring any religion or
favor one religion and discriminate against favoring any religion as against other religions. It
another. On the other hand, the church cannot mandates a strict neutrality in affairs among
impose its beliefs and convictions on the State religious groups."206 Essentially, it prohibits the
and the rest of the citizenry. It cannot demand establishment of a state religion and the use of
that the nation follow its beliefs, even if it public resources for the support or prohibition of
sincerely believes that they are good for the a religion.
country.
 CONSTI LAW II ACJUCO FINALS 161

On the other hand, the basis of the free exercise influence individual religious beliefs and
clause is the respect for the inviolability of the practices.210
human conscience.207 Under this part of
religious freedom guarantee, the State is Corollary to the guarantee of free exercise of
prohibited from unduly interfering with the one's religion is the principle that the guarantee
outside manifestations of one's belief and of religious freedom is comprised of two parts:
faith.208 Explaining the concept of religious the freedom to believe, and the freedom to act
freedom, the Court, in Victoriano v. Elizalde on one's belief. The first part is absolute. As
Rope Workers Union209 wrote: explained in Gerona v. Secretary of
Education:211
The constitutional provisions not only prohibits
legislation for the support of any religious tenets The realm of belief and creed is infinite and
or the modes of worship of any sect, thus limitless bounded only by one's imagination and
forestalling compulsion by law of the acceptance thought. So is the freedom of belief, including
of any creed or the practice of any form of religious belief, limitless and without bounds.
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. One may believe in most anything, however
1148, 1153), but also assures the free exercise strange, bizarre and unreasonable the same
of one's chosen form of religion within limits of may appear to others, even heretical when
utmost amplitude. It has been said that the weighed in the scales of orthodoxy or doctrinal
religion clauses of the Constitution are all standards. But between the freedom of belief
designed to protect the broadest possible liberty and the exercise of said belief, there is quite a
of conscience, to allow each man to believe as stretch of road to travel.212
his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, The second part however, is limited and subject
consistent with the liberty of others and with the to the awesome power of the State and can be
common good. Any legislation whose effect or enjoyed only with proper regard to the rights of
purpose is to impede the observance of one or others. It is "subject to regulation where the
all religions, or to discriminate invidiously belief is translated into external acts that affect
between the religions, is invalid, even though the the public welfare."213
burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 Legislative Acts and the Free Exercise Clause
L.ed.2d 965, 83 S. Ct. 1970) But if the state
regulates conduct by enacting, within its power, Thus, in case of conflict between the free
a general law which has for its purpose and exercise clause and the State, the Court
effect to advance the state's secular goals, the adheres to the doctrine of benevolent neutrality.
statute is valid despite its indirect burden on This has been clearly decided by the Court in
religious observance, unless the state can Estrada v. Escritor, (Escritor)214 where it was
accomplish its purpose without imposing such stated "that benevolent neutrality-
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 accommodation, whether mandatory or
Led. 2d. 563, 81 S. Ct. 144; McGowan v. permissive, is the spirit, intent and framework
Maryland, 366 U.S. 420, 444-5 and 449). underlying the Philippine Constitution."215 In
the same case, it was further explained that"
As expounded in Escritor,
The benevolent neutrality theory believes that
The establishment and free exercise clauses with respect to these governmental actions,
were not designed to serve contradictory accommodation of religion may be allowed, not
purposes. They have a single goal-to promote to promote the government's favored form of
freedom of individual religious beliefs and religion, but to allow individuals and groups to
practices. In simplest terms, the free exercise exercise their religion without hindrance. "The
clause prohibits government from inhibiting purpose of accommodation is to remove a
religious beliefs with penalties for religious burden on, or facilitate the exercise of, a
beliefs and practice, while the establishment person's or institution's religion."216 "What is
clause prohibits government from inhibiting sought under the theory of accommodation is
religious belief with rewards for religious beliefs not a declaration of unconstitutionality of a
and practices. In other words, the two religion facially neutral law, but an exemption from its
clauses were intended to deny government the application or its 'burdensome effect,' whether
power to use either the carrot or the stick to by the legislature or the courts."217
 CONSTI LAW II ACJUCO FINALS 162

approach, thus not appropriate in this

In ascertaining the limits of the exercise of jurisdiction. Similar to Victoriano, the present
religious freedom, the compelling state interest case involves purely conduct arising from
test is proper.218 Underlying the compelling religious belief. The "compelling state interest"
state interest test is the notion that free exercise test is proper where conduct is involved for the
is a fundamental right and that laws burdening it whole gamut of human conduct has different
should be subject to strict scrutiny.219 In effects on the state's interests: some effects may
Escritor, it was written: be immediate and short-term while others
delayed and far-reaching. A test that would
Philippine jurisprudence articulates several tests protect the interests of the state in preventing a
to determine these limits. Beginning with the first substantive evil, whether immediate or delayed,
case on the Free Exercise Clause, American is therefore necessary. However, not any
Bible Society, the Court mentioned the "clear interest of the state would suffice to prevail over
and present danger" test but did not employ it. the right to religious freedom as this is a
Nevertheless, this test continued to be cited in fundamental right that enjoys a preferred
subsequent cases on religious liberty. The position in the hierarchy of rights - "the most
Gerona case then pronounced that the test of inalienable and sacred of all human rights", in
permissibility of religious freedom is whether it the words of Jefferson. This right is sacred for an
violates the established institutions of society invocation of the Free Exercise Clause is an
and law. The Victoriano case mentioned the appeal to a higher sovereignty. The entire
"immediate and grave danger" test as well as the constitutional order of limited government is
doctrine that a law of general applicability may premised upon an acknowledgment of such
burden religious exercise provided the law is the higher sovereignty, thus the Filipinos implore the
least restrictive means to accomplish the goal of "aid of Almighty God in order to build a just and
the law. The case also used, albeit humane society and establish a government."
inappropriately, the "compelling state interest" As held in Sherbert, only the gravest abuses,
test. After Victoriano , German went back to the endangering paramount interests can limit this
Gerona rule. Ebralinag then employed the fundamental right. A mere balancing of interests
"grave and immediate danger" test and which balances a right with just a colorable state
overruled the Gerona test. The fairly recent case interest is therefore not appropriate. Instead,
of Iglesia ni Cristo went back to the " clear and only a compelling interest of the state can prevail
present danger" test in the maiden case of A over the fundamental right to religious liberty.
merican Bible Society. Not surprisingly, all the The test requires the state to carry a heavy
cases which employed the "clear and present burden, a compelling one, for to do otherwise
danger" or "grave and immediate danger" test would allow the state to batter religion,
involved, in one form or another, religious especially the less powerful ones until they are
speech as this test is often used in cases on destroyed. In determining which shall prevail
freedom of expression. On the other hand, the between the state's interest and religious liberty,
Gerona and German cases set the rule that reasonableness shall be the guide. The
religious freedom will not prevail over "compelling state interest" serves the purpose of
established institutions of society and law. revering religious liberty while at the same time
Gerona, however, which was the authority cited affording protection to the paramount interests of
by German has been overruled by Ebralinag the state. This was the test used in Sherbert
which employed the "grave and immediate which involved conduct, i.e. refusal to work on
danger" test . Victoriano was the only case that Saturdays. In the end, the "compelling state
employed the "compelling state interest" test, interest" test, by upholding the paramount
but as explained previously, the use of the test interests of the state, seeks to protect the very
was inappropriate to the facts of the case. state, without which, religious liberty will not be
preserved. [Emphases in the original.
The case at bar does not involve speech as in A Underlining supplied.]
merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and The Court's Position
"grave and immediate danger" tests were
appropriate as speech has easily discernible or In the case at bench, it is not within the province
immediate effects. The Gerona and German of the Court to determine whether the use of
doctrine, aside from having been overruled, is contraceptives or one's participation in the
not congruent with the benevolent neutrality support of modem reproductive health measures
 CONSTI LAW II ACJUCO FINALS 163

is moral from a religious standpoint or whether FDA for the poor and marginalized as identified
the same is right or wrong according to one's through the NHTS-PR and other government
dogma or belief. For the Court has declared that measures of identifying marginalization:
matters dealing with "faith, practice, doctrine, Provided, That the State shall also provide
form of worship, ecclesiastical law, custom and funding support to promote modern natural
rule of a church ... are unquestionably methods of family planning, especially the
ecclesiastical matters which are outside the Billings Ovulation Method, consistent with the
province of the civil courts."220 The jurisdiction needs of acceptors and their religious
of the Court extends only to public and secular convictions. [Section 3(e), Declaration of Policy]
morality. Whatever pronouncement the Court
makes in the case at bench should be 4. The State shall promote programs that: (1)
understood only in this realm where it has enable individuals and couples to have the
authority. Stated otherwise, while the Court number of children they desire with due
stands without authority to rule on ecclesiastical consideration to the health, particularly of
matters, as vanguard of the Constitution, it does women, and the resources available and
have authority to determine whether the RH Law affordable to them and in accordance with
contravenes the guarantee of religious freedom. existing laws, public morals and their religious
convictions. [Section 3CDJ
At first blush, it appears that the RH Law
recognizes and respects religion and religious 5. The State shall respect individuals'
beliefs and convictions. It is replete with preferences and choice of family planning
assurances the no one can be compelled to methods that are in accordance with their
violate the tenets of his religion or defy his religious convictions and cultural beliefs, taking
religious convictions against his free will. into consideration the State's obligations under
Provisions in the RH Law respecting religious various human rights instruments. [Section 3(h)]
freedom are the following:
6. Active participation by nongovernment
1. The State recognizes and guarantees the organizations (NGOs) , women's and people's
human rights of all persons including their right organizations, civil society, faith-based
to equality and nondiscrimination of these rights, organizations, the religious sector and
the right to sustainable human development, the communities is crucial to ensure that
right to health which includes reproductive reproductive health and population and
health, the right to education and information, development policies, plans, and programs will
and the right to choose and make decisions for address the priority needs of women, the poor,
themselves in accordance with their religious and the marginalized. [Section 3(i)]
convictions, ethics, cultural beliefs, and the
demands of responsible parenthood. [Section 2, 7. Responsible parenthood refers to the will and
Declaration of Policy] ability of a parent to respond to the needs and
aspirations of the family and children. It is
2 . The State recognizes marriage as an likewise a shared responsibility between parents
inviolable social institution and the foundation of to determine and achieve the desired number of
the family which in turn is the foundation of the children, spacing and timing of their children
nation. Pursuant thereto, the State shall defend: according to their own family life aspirations,
taking into account psychological preparedness,
(a) The right of spouses to found a family in health status, sociocultural and economic
accordance with their religious convictions and concerns consistent with their religious
the demands of responsible parenthood." convictions. [Section 4(v)] (Emphases supplied)
[Section 2, Declaration of Policy]
While the Constitution prohibits abortion, laws
3. The State shall promote and provide were enacted allowing the use of contraceptives.
information and access, without bias, to all To some medical practitioners, however, the
methods of family planning, including effective whole idea of using contraceptives is an
natural and modern methods which have been anathema. Consistent with the principle of
proven medically safe, legal, non-abortifacient, benevolent neutrality, their beliefs should be
and effective in accordance with scientific and respected.
evidence-based medical research standards
such as those registered and approved by the The Establishment Clause
 CONSTI LAW II ACJUCO FINALS 164

conscientious objectors for exemption from the

and Contraceptives RH Law deserves no less than strict scrutiny.

In the same breath that the establishment clause In applying the test, the first inquiry is whether a
restricts what the government can do with conscientious objector's right to religious
religion, it also limits what religious sects can or freedom has been burdened. As in Escritor,
cannot do with the government. They can there is no doubt that an intense tug-of-war
neither cause the government to adopt their plagues a conscientious objector. One side
particular doctrines as policy for everyone, nor coaxes him into obedience to the law and the
can they not cause the government to restrict abandonment of his religious beliefs, while the
other groups. To do so, in simple terms, would other entices him to a clean conscience yet
cause the State to adhere to a particular religion under the pain of penalty. The scenario is an
and, thus, establishing a state religion. illustration of the predicament of medical
practitioners whose religious beliefs are
Consequently, the petitioners are misguided in incongruent with what the RH Law promotes.
their supposition that the State cannot enhance
its population control program through the RH The Court is of the view that the obligation to
Law simply because the promotion of refer imposed by the RH Law violates the
contraceptive use is contrary to their religious religious belief and conviction of a conscientious
beliefs. Indeed, the State is not precluded to objector. Once the medical practitioner, against
pursue its legitimate secular objectives without his will, refers a patient seeking information on
being dictated upon by the policies of any one modem reproductive health products, services,
religion. One cannot refuse to pay his taxes procedures and methods, his conscience is
simply because it will cloud his conscience. The immediately burdened as he has been
demarcation line between Church and State compelled to perform an act against his beliefs.
demands that one render unto Caesar the things As Commissioner Joaquin A. Bernas
that are Caesar's and unto God the things that (Commissioner Bernas) has written, "at the
are God's.221 basis of the free exercise clause is the respect
for the inviolability of the human conscience.222
The Free Exercise Clause and the Duty to Refer
Though it has been said that the act of referral is
While the RH Law, in espousing state policy to an opt-out clause, it is, however, a false
promote reproductive health manifestly respects compromise because it makes pro-life health
diverse religious beliefs in line with the Non- providers complicit in the performance of an act
Establishment Clause, the same conclusion that they find morally repugnant or offensive.
cannot be reached with respect to Sections 7, 23 They cannot, in conscience, do indirectly what
and 24 thereof. The said provisions commonly they cannot do directly. One may not be the
mandate that a hospital or a medical practitioner principal, but he is equally guilty if he abets the
to immediately refer a person seeking health offensive act by indirect participation.
care and services under the law to another
accessible healthcare provider despite their Moreover, the guarantee of religious freedom is
conscientious objections based on religious or necessarily intertwined with the right to free
ethical beliefs. speech, it being an externalization of one's
thought and conscience. This in turn includes
In a situation where the free exercise of religion the right to be silent. With the constitutional
is allegedly burdened by government legislation guarantee of religious freedom follows the
or practice, the compelling state interest test in protection that should be afforded to individuals
line with the Court's espousal of the Doctrine of in communicating their beliefs to others as well
Benevolent Neutrality in Escritor, finds as the protection for simply being silent. The Bill
application. In this case, the conscientious of Rights guarantees the liberty of the individual
objector's claim to religious freedom would to utter what is in his mind and the liberty not to
warrant an exemption from obligations under the utter what is not in his mind.223 While the RH
RH Law, unless the government succeeds in Law seeks to provide freedom of choice through
demonstrating a more compelling state interest informed consent, freedom of choice guarantees
in the accomplishment of an important secular the liberty of the religious conscience and
objective. Necessarily so, the plea of prohibits any degree of compulsion or burden,
 CONSTI LAW II ACJUCO FINALS 165

whether direct or indirect, in the practice of one's the religious freedom of health care service
religion.224 providers should be respected.

In case of conflict between the religious beliefs In the case of Islamic Da'wah Council of the
and moral convictions of individuals, on one Philippines, Inc. v. Office of the Executive
hand, and the interest of the State, on the other, Secretary228 it was stressed:
to provide access and information on
reproductive health products, services, Freedom of religion was accorded preferred
procedures and methods to enable the people to status by the framers of our fundamental law.
determine the timing, number and spacing of the And this Court has consistently affirmed this
birth of their children, the Court is of the strong preferred status, well aware that it is "designed
view that the religious freedom of health to protect the broadest possible liberty of
providers, whether public or private, should be conscience, to allow each man to believe as his
accorded primacy. Accordingly, a conscientious conscience directs, to profess his beliefs, and to
objector should be exempt from compliance with live as he believes he ought to live, consistent
the mandates of the RH Law. If he would be with the liberty of others and with the common
compelled to act contrary to his religious belief good."10
and conviction, it would be violative of "the
principle of non-coercion" enshrined in the The Court is not oblivious to the view that
constitutional right to free exercise of religion. penalties provided by law endeavour to ensure
compliance. Without set consequences for
Interestingly, on April 24, 2013, Scotland's Inner either an active violation or mere inaction, a law
House of the Court of Session, found in the case tends to be toothless and ineffectual.
of Doogan and Wood v. NHS Greater Glasgow Nonetheless, when what is bartered for an
and Clyde Health Board,225 that the midwives effective implementation of a law is a
claiming to be conscientious objectors under the constitutionally-protected right the Court firmly
provisions of Scotland's Abortion Act of 1967, chooses to stamp its disapproval. The
could not be required to delegate, supervise or punishment of a healthcare service provider,
support staff on their labor ward who were who fails and/or refuses to refer a patient to
involved in abortions.226 The Inner House another, or who declines to perform reproductive
stated "that if 'participation' were defined health procedure on a patient because
according to whether the person was taking part incompatible religious beliefs, is a clear inhibition
'directly' or ' indirectly' this would actually mean of a constitutional guarantee which the Court
more complexity and uncertainty."227 cannot allow.

While the said case did not cover the act of The Implementing Rules and Regulation (RH-
referral, the applicable principle was the same - IRR)
they could not be forced to assist abortions if it
would be against their conscience or will. The last paragraph of Section 5.24 of the RH-
IRR reads:
Institutional Health Providers
Provided, That skilled health professional such
The same holds true with respect to non- as provincial, city or municipal health officers,
maternity specialty hospitals and hospitals chiefs of hospital, head nurses, supervising
owned and operated by a religious group and midwives, among others, who by virtue of their
health care service providers. Considering that office are specifically charged with the duty to
Section 24 of the RH Law penalizes such implement the provisions of the RPRH Act and
institutions should they fail or refuse to comply these Rules, cannot be considered as
with their duty to refer under Section 7 and conscientious objectors.
Section 23(a)(3), the Court deems that it must be
struck down for being violative of the freedom of This is discriminatory and violative of the equal
religion. The same applies to Section 23(a)(l) protection clause. The conscientious objection
and (a)(2) in relation to Section 24, considering clause should be equally protective of the
that in the dissemination of information religious belief of public health officers. There is
regarding programs and services and in the no perceptible distinction why they should not be
performance of reproductive health procedures, considered exempt from the mandates of the
law. The protection accorded to other
 CONSTI LAW II ACJUCO FINALS 166

conscientious objectors should equally apply to cannot be considered as conscientious

all medical practitioners without distinction objectors." Do you agree with this?
whether they belong to the public or private
sector. After all, the freedom to believe is Congressman Lagman:
intrinsic in every individual and the protective
robe that guarantees its free exercise is not I will have to go over again the provisions, Your
taken off even if one acquires employment in the Honor.
government.
Justice Mendoza:
It should be stressed that intellectual liberty
occupies a place inferior to none in the hierarchy In other words, public health officers in contrast
of human values. The mind must be free to think to the private practitioners who can be
what it wills, whether in the secular or religious conscientious objectors, skilled health
sphere, to give expression to its beliefs by oral professionals cannot be considered
discourse or through the media and, thus, seek conscientious objectors. Do you agree with this?
other candid views in occasions or gatherings or Is this not against the constitutional right to the
in more permanent aggrupation. Embraced in religious belief?
such concept then are freedom of religion,
freedom of speech, of the press, assembly and Congressman Lagman:
petition, and freedom of association.229
Your Honor, if there is any conflict between the
The discriminatory provision is void not only IRR and the law, the law must prevail.230
because no such exception is stated in the RH
Law itself but also because it is violative of the Compelling State Interest
equal protection clause in the Constitution.
Quoting respondent Lagman, if there is any The foregoing discussion then begets the
conflict between the RH-IRR and the RH Law, question on whether the respondents, in
the law must prevail. defense of the subject provisions, were able to:
1] demonstrate a more compelling state interest
Justice Mendoza: to restrain conscientious objectors in their choice
of services to render; and 2] discharge the
I'll go to another point. The RH law .. .in your burden of proof that the obligatory character of
Comment- in-Intervention on page 52, you the law is the least intrusive means to achieve
mentioned RH Law is replete with provisions in the objectives of the law.
upholding the freedom of religion and respecting
religious convictions. Earlier, you affirmed this Unfortunately, a deep scrutiny of the
with qualifications. Now, you have read, I respondents' submissions proved to be in vain.
presumed you have read the IRR-Implementing The OSG was curiously silent in the
Rules and Regulations of the RH Bill? establishment of a more compelling state
interest that would rationalize the curbing of a
Congressman Lagman: conscientious objector's right not to adhere to an
action contrary to his religious convictions.
Yes, Your Honor, I have read but I have to admit, During the oral arguments, the OSG maintained
it's a long IRR and I have not thoroughly the same silence and evasion. The Transcripts
dissected the nuances of the provisions. of the Stenographic Notes disclose the following:

Justice Mendoza: Justice De Castro:

I will read to you one provision. It's Section 5.24. Let's go back to the duty of the conscientious
This I cannot find in the RH Law. But in the IRR objector to refer. ..
it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief Senior State Solicitor Hilbay:
of hospitals, head nurses, supervising midwives,
among others, who by virtue of their office are Yes, Justice.
specifically charged with the duty to implement
the provisions of the RPRH Act and these Rules, Justice De Castro:
 CONSTI LAW II ACJUCO FINALS 167

... which you are discussing awhile ago with the moment a patient seeks consultation on
Justice Abad. What is the compelling State reproductive health matters.
interest in imposing this duty to refer to a
conscientious objector which refuses to do so Moreover, granting that a compelling interest
because of his religious belief? exists to justify the infringement of the
conscientious objector's religious freedom, the
Senior State Solicitor Hilbay: respondents have failed to demonstrate "the
gravest abuses, endangering paramount
Ahh, Your Honor, .. interests" which could limit or override a person's
fundamental right to religious freedom. Also, the
Justice De Castro: respondents have not presented any
government effort exerted to show that the
What is the compelling State interest to impose means it takes to achieve its legitimate state
this burden? objective is the least intrusive means.234 Other
than the assertion that the act of referring would
Senior State Solicitor Hilbay: only be momentary, considering that the act of
referral by a conscientious objector is the very
In the first place, Your Honor, I don't believe that action being contested as violative of religious
the standard is a compelling State interest, this freedom, it behooves the respondents to
is an ordinary health legislation involving demonstrate that no other means can be
professionals. This is not a free speech matter undertaken by the State to achieve its objective
or a pure free exercise matter. This is a without violating the rights of the conscientious
regulation by the State of the relationship objector. The health concerns of women may
between medical doctors and their patients.231 still be addressed by other practitioners who
may perform reproductive health-related
Resultantly, the Court finds no compelling state procedures with open willingness and
interest which would limit the free exercise motivation. Suffice it to say, a person who is
clause of the conscientious objectors, however forced to perform an act in utter reluctance
few in number. Only the prevention of an deserves the protection of the Court as the last
immediate and grave danger to the security and vanguard of constitutional freedoms.
welfare of the community can justify the
infringement of religious freedom. If the At any rate, there are other secular steps already
government fails to show the seriousness and taken by the Legislature to ensure that the right
immediacy of the threat, State intrusion is to health is protected. Considering other
constitutionally unacceptable.232 legislations as they stand now, R.A . No. 4 729
or the Contraceptive Act, R.A. No. 6365 or "The
Freedom of religion means more than just the Population Act of the Philippines" and R.A. No.
freedom to believe. It also means the freedom to 9710, otherwise known as "The Magna Carta of
act or not to act according to what one believes. Women," amply cater to the needs of women in
And this freedom is violated when one is relation to health services and programs. The
compelled to act against one's belief or is pertinent provision of Magna Carta on
prevented from acting according to one's comprehensive health services and programs
belief.233 for women, in fact, reads:

Apparently, in these cases, there is no Section 17. Women's Right to Health. - (a)
immediate danger to the life or health of an Comprehensive Health Services. - The State
individual in the perceived scenario of the shall, at all times, provide for a comprehensive,
subject provisions. After all, a couple who plans culture-sensitive, and gender-responsive health
the timing, number and spacing of the birth of services and programs covering all stages of a
their children refers to a future event that is woman's life cycle and which addresses the
contingent on whether or not the mother decides major causes of women's mortality and
to adopt or use the information, product, method morbidity: Provided, That in the provision for
or supply given to her or whether she even comprehensive health services, due respect
decides to become pregnant at all. On the other shall be accorded to women's religious
hand, the burden placed upon those who object convictions, the rights of the spouses to found a
to contraceptive use is immediate and occurs family in accordance with their religious
convictions, and the demands of responsible
 CONSTI LAW II ACJUCO FINALS 168

parenthood, and the right of women to protection all sectors with appropriate, timely, complete,
from hazardous drugs, devices, interventions, and accurate information and education on all
and substances. the above-stated aspects of women's health in
government education and training programs,
Access to the following services shall be with due regard to the following:
ensured:
(1) The natural and primary right and duty of
(1) Maternal care to include pre- and post-natal parents in the rearing of the youth and the
services to address pregnancy and infant health development of moral character and the right of
and nutrition; children to be brought up in an atmosphere of
morality and rectitude for the enrichment and
(2) Promotion of breastfeeding; strengthening of character;

(3) Responsible, ethical, legal, safe, and (2) The formation of a person's sexuality that
effective methods of family planning; affirms human dignity; and

(4) Family and State collaboration in youth (3) Ethical, legal, safe, and effective family
sexuality education and health services without planning methods including fertility awareness.
prejudice to the primary right and duty of parents
to educate their children; As an afterthought, Asst. Solicitor General
Hilbay eventually replied that the compelling
(5) Prevention and management of reproductive state interest was "Fifteen maternal deaths per
tract infections, including sexually transmitted day, hundreds of thousands of unintended
diseases, HIV, and AIDS; pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by
(6) Prevention and management of reproductive concrete facts and figures from reputable
tract cancers like breast and cervical cancers, sources.
and other gynecological conditions and
disorders; The undisputed fact, however, is that the World
Health Organization reported that the Filipino
(7) Prevention of abortion and management of maternal mortality rate dropped to 48 percent
pregnancy-related complications; from 1990 to 2008, 236 although there was still
no RH Law at that time. Despite such revelation,
(8) In cases of violence against women and the proponents still insist that such number of
children, women and children victims and maternal deaths constitute a compelling state
survivors shall be provided with comprehensive interest.
health services that include psychosocial,
therapeutic, medical, and legal interventions and Granting that there are still deficiencies and
assistance towards healing, recovery, and flaws in the delivery of social healthcare
empowerment; programs for Filipino women, they could not be
solved by a measure that puts an unwarrantable
(9) Prevention and management of infertility and stranglehold on religious beliefs in exchange for
sexual dysfunction pursuant to ethical norms blind conformity.
and medical standards;
Exception: Life Threatening Cases
(10) Care of the elderly women beyond their
child-bearing years; and All this notwithstanding, the Court properly
recognizes a valid exception set forth in the law.
(11) Management, treatment, and intervention of While generally healthcare service providers
mental health problems of women and girls. In cannot be forced to render reproductive health
addition, healthy lifestyle activities are care procedures if doing it would contravene
encouraged and promoted through programs their religious beliefs, an exception must be
and projects as strategies in the prevention of made in life-threatening cases that require the
diseases. performance of emergency procedures. In these
situations, the right to life of the mother should
(b) Comprehensive Health Information and be given preference, considering that a referral
Education. - The State shall provide women in by a medical practitioner would amount to a
 CONSTI LAW II ACJUCO FINALS 169

denial of service, resulting to unnecessarily methods to be included in the seminar, whether

placing the life of a mother in grave danger. they be natural or artificial. As correctly noted by
Thus, during the oral arguments, Atty. Liban, the OSG, those who receive any information
representing CFC, manifested: "the forced during their attendance in the required seminars
referral clause that we are objecting on grounds are not compelled to accept the information
of violation of freedom of religion does not given to them, are completely free to reject the
contemplate an emergency."237 information they find unacceptable, and retain
the freedom to decide on matters of family life
In a conflict situation between the life of the without the intervention of the State.
mother and the life of a child, the doctor is
morally obliged always to try to save both lives. 4-The Family and the Right to Privacy
If, however, it is impossible, the resulting death
to one should not be deliberate. Atty. Noche Petitioner CFC assails the RH Law because
explained: Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into
Principle of Double-Effect. - May we please marital privacy and autonomy. It argues that it
remind the principal author of the RH Bill in the cultivates disunity and fosters animosity in the
House of Representatives of the principle of family rather than promote its solidarity and total
double-effect wherein intentional harm on the life development.240
of either the mother of the child is never justified
to bring about a "good" effect. In a conflict The Court cannot but agree.
situation between the life of the child and the life
of the mother, the doctor is morally obliged The 1987 Constitution is replete with provisions
always to try to save both lives. However, he can strengthening the family as it is the basic social
act in favor of one (not necessarily the mother) institution. In fact, one article, Article XV, is
when it is medically impossible to save both, devoted entirely to the family.
provided that no direct harm is intended to the
other. If the above principles are observed, the ARTICLE XV
loss of the child's life or the mother's life is not THE FAMILY
intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or Section 1. The State recognizes the Filipino
murder. The mother is never pitted against the family as the foundation of the nation.
child because both their lives are equally Accordingly, it shall strengthen its solidarity and
valuable.238 actively promote its total development.

Accordingly, if it is necessary to save the life of Section 2. Marriage, as an inviolable social

a mother, procedures endangering the life of the institution, is the foundation of the family and
child may be resorted to even if is against the shall be protected by the State.
religious sentiments of the medical practitioner.
As quoted above, whatever burden imposed Section 3. The State shall defend:
upon a medical practitioner in this case would
have been more than justified considering the The right of spouses to found a family in
life he would be able to save. accordance with their religious convictions and
the demands of responsible parenthood;
Family Planning Seminars
The right of children to assistance, including
Anent the requirement imposed under Section proper care and nutrition, and special protection
15239 as a condition for the issuance of a from all forms of neglect, abuse, cruelty,
marriage license, the Court finds the same to be exploitation and other conditions prejudicial to
a reasonable exercise of police power by the their development;
government. A cursory reading of the assailed
provision bares that the religious freedom of the The right of the family to a family living wage and
petitioners is not at all violated. All the law income; and
requires is for would-be spouses to attend a
seminar on parenthood, family planning The right of families or family assoc1at1ons to
breastfeeding and infant nutrition. It does not participate in the planning and implementation of
even mandate the type of family planning policies and programs that affect them.
 CONSTI LAW II ACJUCO FINALS 170

from the policy of the State to protect marriage

In this case, the RH Law, in its not-so-hidden as an inviolable social institution.241
desire to control population growth, contains
provisions which tend to wreck the family as a Decision-making involving a reproductive health
solid social institution. It bars the husband and/or procedure is a private matter which belongs to
the father from participating in the decision the couple, not just one of them. Any decision
making process regarding their common future they would reach would affect their future as a
progeny. It likewise deprives the parents of their family because the size of the family or the
authority over their minor daughter simply number of their children significantly matters.
because she is already a parent or had suffered The decision whether or not to undergo the
a miscarriage. procedure belongs exclusively to, and shared
by, both spouses as one cohesive unit as they
The Family and Spousal Consent chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the
Section 23(a) (2) (i) of the RH Law states: State, which has not shown any compelling
interest, the State should see to it that they chart
The following acts are prohibited: their destiny together as one family.

(a) Any health care service provider, whether As highlighted by Justice Leonardo-De Castro,
public or private, who shall: ... Section 19( c) of R.A. No. 9710, otherwise
known as the "Magna Carta for Women,"
(2) refuse to perform legal and medically-safe provides that women shall have equal rights in
reproductive health procedures on any person of all matters relating to marriage and family
legal age on the ground of lack of consent or relations, including the joint decision on the
authorization of the following persons in the number and spacing of their children. Indeed,
following instances: responsible parenthood, as Section 3(v) of the
RH Law states, is a shared responsibility
(i) Spousal consent in case of married persons: between parents. Section 23(a)(2)(i) of the RH
provided, That in case of disagreement, the Law should not be allowed to betray the
decision of the one undergoing the procedures constitutional mandate to protect and strengthen
shall prevail. [Emphasis supplied] the family by giving to only one spouse the
absolute authority to decide whether to undergo
The above provision refers to reproductive reproductive health procedure.242
health procedures like tubal litigation and
vasectomy which, by their very nature, should The right to chart their own destiny together falls
require mutual consent and decision between within the protected zone of marital privacy and
the husband and the wife as they affect issues such state intervention would encroach into the
intimately related to the founding of a family. zones of spousal privacy guaranteed by the
Section 3, Art. XV of the Constitution espouses Constitution. In our jurisdiction, the right to
that the State shall defend the "right of the privacy was first recognized in Marje v.
spouses to found a family." One person cannot Mutuc,243 where the Court, speaking through
found a family. The right, therefore, is shared by Chief Justice Fernando, held that "the right to
both spouses. In the same Section 3, their right privacy as such is accorded recognition
"to participate in the planning and independently of its identification with liberty; in
implementation of policies and programs that itself, it is fully deserving of constitutional
affect them " is equally recognized. protection."244 Marje adopted the ruling of the
US Supreme Court in Griswold v.
The RH Law cannot be allowed to infringe upon Connecticut,245 where Justice William O.
this mutual decision-making. By giving absolute Douglas wrote:
authority to the spouse who would undergo a
procedure, and barring the other spouse from We deal with a right of privacy older than the Bill
participating in the decision would drive a wedge of Rights -older than our political parties, older
between the husband and wife, possibly result in than our school system. Marriage is a coming
bitter animosity, and endanger the marriage and together for better or for worse, hopefully
the family, all for the sake of reducing the enduring, and intimate to the degree of being
population. This would be a marked departure sacred. It is an association that promotes a way
of life, not causes; a harmony in living, not
 CONSTI LAW II ACJUCO FINALS 171

political faiths; a bilateral loyalty, not commercial mandate to protect and strengthen the family as
or social projects. Yet it is an association for as an inviolable social institution.
noble a purpose as any involved in our prior
decisions. More alarmingly, it disregards and disobeys the
constitutional mandate that "the natural and
Ironically, Griswold invalidated a Connecticut primary right and duty of parents in the rearing
statute which made the use of contraceptives a of the youth for civic efficiency and the
criminal offense on the ground of its amounting development of moral character shall receive the
to an unconstitutional invasion of the right to support of the Government."247 In this regard,
privacy of married persons. Nevertheless, it Commissioner Bernas wrote:
recognized the zone of privacy rightfully enjoyed
by couples. Justice Douglas in Grisworld wrote The 1987 provision has added the adjective
that "specific guarantees in the Bill of Rights "primary" to modify the right of parents. It imports
have penumbras, formed by emanations from the assertion that the right of parents is superior
those guarantees that help give them life and to that of the State.248 [Emphases supplied]
substance. Various guarantees create zones of
privacy."246 To insist on a rule that interferes with the right of
parents to exercise parental control over their
At any rate, in case of conflict between the minor-child or the right of the spouses to
couple, the courts will decide. mutually decide on matters which very well
affect the very purpose of marriage, that is, the
The Family and Parental Consent establishment of conjugal and family life, would
result in the violation of one's privacy with
Equally deplorable is the debarment of parental respect to his family. It would be dismissive of
consent in cases where the minor, who will be the unique and strongly-held Filipino tradition of
undergoing a procedure, is already a parent or maintaining close family ties and violative of the
has had a miscarriage. Section 7 of the RH law recognition that the State affords couples
provides: entering into the special contract of marriage to
as one unit in forming the foundation of the
SEC. 7. Access to Family Planning. – x x x. family and society.

No person shall be denied information and The State cannot, without a compelling state
access to family planning services, whether interest, take over the role of parents in the care
natural or artificial: Provided, That minors will not and custody of a minor child, whether or not the
be allowed access to modern methods of family latter is already a parent or has had a
planning without written consent from their miscarriage. Only a compelling state interest can
parents or guardian/s except when the minor is justify a state substitution of their parental
already a parent or has had a miscarriage. authority.

There can be no other interpretation of this First Exception: Access to Information

provision except that when a minor is already a
parent or has had a miscarriage, the parents are Whether with respect to the minor referred to
excluded from the decision making process of under the exception provided in the second
the minor with regard to family planning. Even if paragraph of Section 7 or with respect to the
she is not yet emancipated, the parental consenting spouse under Section 23(a)(2)(i), a
authority is already cut off just because there is distinction must be made. There must be a
a need to tame population growth. differentiation between access to information
about family planning services, on one hand,
It is precisely in such situations when a minor and access to the reproductive health
parent needs the comfort, care, advice, and procedures and modern family planning
guidance of her own parents. The State cannot methods themselves, on the other. Insofar as
replace her natural mother and father when it access to information is concerned, the Court
comes to providing her needs and comfort. To finds no constitutional objection to the
say that their consent is no longer relevant is acquisition of information by the minor referred
clearly anti-family. It does not promote unity in to under the exception in the second paragraph
the family. It is an affront to the constitutional of Section 7 that would enable her to take proper
care of her own body and that of her unborn
 CONSTI LAW II ACJUCO FINALS 172

child. After all, Section 12, Article II of the States and statistical data gathered in the
Constitution mandates the State to protect both country, the petitioners aver that the prevalence
the life of the mother as that of the unborn child. of contraceptives has led to an increase of out-
Considering that information to enable a person of-wedlock births; divorce and breakdown of
to make informed decisions is essential in the families; the acceptance of abortion and
protection and maintenance of ones' health, euthanasia; the "feminization of poverty"; the
access to such information with respect to aging of society; and promotion of promiscuity
reproductive health must be allowed. In this among the youth.251
situation, the fear that parents might be deprived
of their parental control is unfounded because At this point, suffice it to state that any attack on
they are not prohibited to exercise parental the validity of Section 14 of the RH Law is
guidance and control over their minor child and premature because the Department of
assist her in deciding whether to accept or reject Education, Culture and Sports has yet to
the information received. formulate a curriculum on age-appropriate
reproductive health education. One can only
Second Exception: Life Threatening Cases speculate on the content, manner and medium
of instruction that will be used to educate the
As in the case of the conscientious objector, an adolescents and whether they will contradict the
exception must be made in life-threatening religious beliefs of the petitioners and validate
cases that require the performance of their apprehensions. Thus, considering the
emergency procedures. In such cases, the life of premature nature of this particular issue, the
the minor who has already suffered a Court declines to rule on its constitutionality or
miscarriage and that of the spouse should not be validity.
put at grave risk simply for lack of consent. It
should be emphasized that no person should be At any rate, Section 12, Article II of the 1987
denied the appropriate medical care urgently Constitution provides that the natural and
needed to preserve the primordial right, that is, primary right and duty of parents in the rearing
the right to life. of the youth for civic efficiency and development
of moral character shall receive the support of
In this connection, the second sentence of the Government. Like the 1973 Constitution and
Section 23(a)(2)(ii)249 should be struck down. the 1935 Constitution, the 1987 Constitution
By effectively limiting the requirement of parental affirms the State recognition of the invaluable
consent to "only in elective surgical procedures," role of parents in preparing the youth to become
it denies the parents their right of parental productive members of society. Notably, it
authority in cases where what is involved are places more importance on the role of parents in
"non-surgical procedures." Save for the two the development of their children by recognizing
exceptions discussed above, and in the case of that said role shall be "primary," that is, that the
an abused child as provided in the first sentence right of parents in upbringing the youth is
of Section 23(a)(2)(ii), the parents should not be superior to that of the State.252
deprived of their constitutional right of parental
authority. To deny them of this right would be an It is also the inherent right of the State to act as
affront to the constitutional mandate to protect parens patriae to aid parents in the moral
and strengthen the family. development of the youth. Indeed, the
Constitution makes mention of the importance of
5 - Academic Freedom developing the youth and their important role in
nation building.253 Considering that Section 14
It is asserted that Section 14 of the RH Law, in provides not only for the age-appropriate-
relation to Section 24 thereof, mandating the reproductive health education, but also for
teaching of Age-and Development-Appropriate values formation; the development of knowledge
Reproductive Health Education under threat of and skills in self-protection against
fine and/or imprisonment violates the principle of discrimination; sexual abuse and violence
academic freedom . According to the petitioners, against women and children and other forms of
these provisions effectively force educational gender based violence and teen pregnancy;
institutions to teach reproductive health physical, social and emotional changes in
education even if they believe that the same is adolescents; women's rights and children's
not suitable to be taught to their students.250 rights; responsible teenage behavior; gender
Citing various studies conducted in the United and development; and responsible parenthood,
 CONSTI LAW II ACJUCO FINALS 173

and that Rule 10, Section 11.01 of the RH-IRR

and Section 4(t) of the RH Law itself provides for The arguments fail to persuade.
the teaching of responsible teenage behavior,
gender sensitivity and physical and emotional A statute or act suffers from the defect of
changes among adolescents - the Court finds vagueness when it lacks comprehensible
that the legal mandate provided under the standards that men of common intelligence must
assailed provision supplements, rather than necessarily guess its meaning and differ as to its
supplants, the rights and duties of the parents in application. It is repugnant to the Constitution in
the moral development of their children. two respects: (1) it violates due process for
failure to accord persons, especially the parties
Furthermore, as Section 14 also mandates that targeted by it, fair notice of the conduct to avoid;
the mandatory reproductive health education and (2) it leaves law enforcers unbridled
program shall be developed in conjunction with discretion in carrying out its provisions and
parent-teacher-community associations, school becomes an arbitrary flexing of the Government
officials and other interest groups, it could very muscle.255 Moreover, in determining whether
well be said that it will be in line with the religious the words used in a statute are vague, words
beliefs of the petitioners. By imposing such a must not only be taken in accordance with their
condition, it becomes apparent that the plain meaning alone, but also in relation to other
petitioners' contention that Section 14 violates parts of the statute. It is a rule that every part of
Article XV, Section 3(1) of the Constitution is the statute must be interpreted with reference to
without merit.254 the context, that is, every part of it must be
construed together with the other parts and kept
While the Court notes the possibility that subservient to the general intent of the whole
educators might raise their objection to their enactment.256
participation in the reproductive health education
program provided under Section 14 of the RH As correctly noted by the OSG, in determining
Law on the ground that the same violates their the definition of "private health care service
religious beliefs, the Court reserves its judgment provider," reference must be made to Section
should an actual case be filed before it. 4(n) of the RH Law which defines a "public health
service provider," viz:
6 - Due Process
(n) Public health care service provider refers to:
The petitioners contend that the RH Law suffers (1) public health care institution, which is duly
from vagueness and, thus violates the due licensed and accredited and devoted primarily to
process clause of the Constitution. According to the maintenance and operation of facilities for
them, Section 23 (a)(l) mentions a "private health promotion, disease prevention, diagnosis,
health service provider" among those who may treatment and care of individuals suffering from
be held punishable but does not define who is a illness, disease, injury, disability or deformity, or
"private health care service provider." They in need of obstetrical or other medical and
argue that confusion further results since nursing care; (2) public health care professional,
Section 7 only makes reference to a "private who is a doctor of medicine, a nurse or a
health care institution." midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay
The petitioners also point out that Section 7 of health worker who has undergone training
the assailed legislation exempts hospitals programs under any accredited government and
operated by religious groups from rendering NGO and who voluntarily renders primarily
reproductive health service and modern family health care services in the community after
planning methods. It is unclear, however, if having been accredited to function as such by
these institutions are also exempt from giving the local health board in accordance with the
reproductive health information under Section guidelines promulgated by the Department of
23(a)(l), or from rendering reproductive health Health (DOH) .
procedures under Section 23(a)(2).
Further, the use of the term "private health care
Finally, it is averred that the RH Law punishes institution" in Section 7 of the law, instead of
the withholding, restricting and providing of "private health care service provider," should not
incorrect information, but at the same time fails be a cause of confusion for the obvious reason
to define "incorrect information." that they are used synonymously.
 CONSTI LAW II ACJUCO FINALS 174

acceptable in medical practice. While health

The Court need not belabor the issue of whether care service providers are not barred from
the right to be exempt from being obligated to expressing their own personal opinions
render reproductive health service and modem regarding the programs and services on
family planning methods, includes exemption reproductive health, their right must be tempered
from being obligated to give reproductive health with the need to provide public health and safety.
information and to render reproductive health The public deserves no less.
procedures. Clearly, subject to the qualifications
and exemptions earlier discussed, the right to be 7-Egual Protection
exempt from being obligated to render
reproductive health service and modem family The petitioners also claim that the RH Law
planning methods, necessarily includes violates the equal protection clause under the
exemption from being obligated to give Constitution as it discriminates against the poor
reproductive health information and to render because it makes them the primary target of the
reproductive health procedures. The terms government program that promotes
"service" and "methods" are broad enough to contraceptive use . They argue that, rather than
include the providing of information and the promoting reproductive health among the poor,
rendering of medical procedures. the RH Law introduces contraceptives that
would effectively reduce the number of the poor.
The same can be said with respect to the Their bases are the various provisions in the RH
contention that the RH Law punishes health care Law dealing with the poor, especially those
service providers who intentionally withhold, mentioned in the guiding principles259 and
restrict and provide incorrect information definition of terms260 of the law.
regarding reproductive health programs and
services. For ready reference, the assailed They add that the exclusion of private
provision is hereby quoted as follows: educational institutions from the mandatory
reproductive health education program imposed
SEC. 23. Prohibited Acts. - The following acts by the RH Law renders it unconstitutional.
are prohibited:
In Biraogo v. Philippine Truth Commission,261
(a) Any health care service provider, whether the Court had the occasion to expound on the
public or private, who shall: concept of equal protection. Thus:

(1) Knowingly withhold information or restrict the One of the basic principles on which this
dissemination thereof, and/ or intentionally government was founded is that of the equality
provide incorrect information regarding of right which is embodied in Section 1, Article III
programs and services on reproductive health of the 1987 Constitution. The equal protection of
including the right to informed choice and access the laws is embraced in the concept of due
to a full range of legal, medically-safe, non- process, as every unfair discrimination offends
abortifacient and effective family planning the requirements of justice and fair play. It has
methods; been embodied in a separate clause, however,
to provide for a more specific guaranty against
From its plain meaning, the word "incorrect" here any form of undue favoritism or hostility from the
denotes failing to agree with a copy or model or government. Arbitrariness in general may be
with established rules; inaccurate, faulty; failing challenged on the basis of the due process
to agree with the requirements of duty, morality clause. But if the particular act assailed partakes
or propriety; and failing to coincide with the truth. of an unwarranted partiality or prejudice, the
257 On the other hand, the word "knowingly" sharper weapon to cut it down is the equal
means with awareness or deliberateness that is protection clause.
intentional.258 Used together in relation to
Section 23(a)(l), they connote a sense of malice "According to a long line of decisions, equal
and ill motive to mislead or misrepresent the protection simply requires that all persons or
public as to the nature and effect of programs things similarly situated should be treated alike,
and services on reproductive health. Public both as to rights conferred and responsibilities
health and safety demand that health care imposed." It "requires public bodies and inst
service providers give their honest and correct itutions to treat similarly situated individuals in a
medical information in accordance with what is similar manner." "The purpose of the equal
 CONSTI LAW II ACJUCO FINALS 175

protection clause is to secure every person The classification must not be based on existing
within a state's jurisdiction against intentional circumstances only, or so constituted as to
and arbitrary discrimination, whether occasioned preclude addition to the number included in the
by the express terms of a statue or by its class. It must be of such a nature as to embrace
improper execution through the state's duly all those who may thereafter be in similar
constituted authorities." "In other words, the circumstances and conditions. It must not leave
concept of equal justice under the law requires out or "underinclude" those that should
the state to govern impartially, and it may not otherwise fall into a certain classification.
draw distinctions between individuals solely on [Emphases supplied; citations excluded]
differences that are irrelevant to a legitimate
governmental objective." To provide that the poor are to be given priority
in the government's reproductive health care
The equal protection clause is aimed at all program is not a violation of the equal protection
official state actions, not just those of the clause. In fact, it is pursuant to Section 11,
legislature. Its inhibitions cover all the Article XIII of the Constitution which recognizes
departments of the government including the the distinct necessity to address the needs of the
political and executive departments, and extend underprivileged by providing that they be given
to all actions of a state denying equal protection priority in addressing the health development of
of the laws, through whatever agency or the people. Thus:
whatever guise is taken.
Section 11. The State shall adopt an integrated
It, however, does not require the universal and comprehensive approach to health
application of the laws to all persons or things development which shall endeavor to make
without distinction. What it simply requires is essential goods, health and other social services
equality among equals as determined according available to all the people at affordable cost.
to a valid classification. Indeed, the equal There shall be priority for the needs of the
protection clause permits classification. Such underprivileged, sick, elderly, disabled, women,
classification, however, to be valid must pass the and children. The State shall endeavor to
test of reasonableness. The test has four provide free medical care to paupers.
requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the It should be noted that Section 7 of the RH Law
purpose of the law; (3) It is not limited to existing prioritizes poor and marginalized couples who
conditions only; and (4) It applies equally to all are suffering from fertility issues and desire to
members of the same class. "Superficial have children. There is, therefore, no merit to the
differences do not make for a valid contention that the RH Law only seeks to target
classification." the poor to reduce their number. While the RH
Law admits the use of contraceptives, it does
For a classification to meet the requirements of not, as elucidated above, sanction abortion. As
constitutionality, it must include or embrace all Section 3(1) explains, the "promotion and/or
persons who naturally belong to the class. "The stabilization of the population growth rate is
classification will be regarded as invalid if all the incidental to the advancement of reproductive
members of the class are not similarly treated, health."
both as to rights conferred and obligations
imposed. It is not necessary that the Moreover, the RH Law does not prescribe the
classification be made with absolute symmetry, number of children a couple may have and does
in the sense that the members of the class not impose conditions upon couples who intend
should possess the same characteristics in to have children. While the petitioners surmise
equal degree. Substantial similarity will suffice; that the assailed law seeks to charge couples
and as long as this is achieved, all those covered with the duty to have children only if they would
by the classification are to be treated equally. raise them in a truly humane way, a deeper look
The mere fact that an individual belonging to a into its provisions shows that what the law seeks
class differs from the other members, as long as to do is to simply provide priority to the poor in
that class is substantially distinguishable from all the implementation of government programs to
others, does not justify the non-application of the promote basic reproductive health care.
law to him."
With respect to the exclusion of private
educational institutions from the mandatory
 CONSTI LAW II ACJUCO FINALS 176

reproductive health education program under

Section 14, suffice it to state that the mere fact Moreover, as some petitioners put it, the notion
that the children of those who are less fortunate of involuntary servitude connotes the presence
attend public educational institutions does not of force, threats, intimidation or other similar
amount to substantial distinction sufficient to means of coercion and compulsion.265 A
annul the assailed provision. On the other hand, reading of the assailed provision, however,
substantial distinction rests between public reveals that it only encourages private and non-
educational institutions and private educational government reproductive healthcare service
institutions, particularly because there is a need providers to render pro bono service. Other than
to recognize the academic freedom of private non-accreditation with PhilHealth, no penalty is
educational institutions especially with respect to imposed should they choose to do otherwise.
religious instruction and to consider their Private and non-government reproductive
sensitivity towards the teaching of reproductive healthcare service providers also enjoy the
health education. liberty to choose which kind of health service
they wish to provide, when, where and how to
8-Involuntary Servitude provide it or whether to provide it all. Clearly,
therefore, no compulsion, force or threat is made
The petitioners also aver that the RH Law is upon them to render pro bono service against
constitutionally infirm as it violates the their will. While the rendering of such service
constitutional prohibition against involuntary was made a prerequisite to accreditation with
servitude. They posit that Section 17 of the PhilHealth, the Court does not consider the
assailed legislation requiring private and non- same to be an unreasonable burden, but rather,
government health care service providers to a necessary incentive imposed by Congress in
render forty-eight (48) hours of pro bono the furtherance of a perceived legitimate state
reproductive health services, actually amounts interest.
to involuntary servitude because it requires
medical practitioners to perform acts against Consistent with what the Court had earlier
their will.262 discussed, however, it should be emphasized
that conscientious objectors are exempt from
The OSG counters that the rendition of pro bono this provision as long as their religious beliefs
services envisioned in Section 17 can hardly be and convictions do not allow them to render
considered as forced labor analogous to slavery, reproductive health service, pro bona or
as reproductive health care service providers otherwise.
have the discretion as to the manner and time of
giving pro bono services. Moreover, the OSG 9-Delegation of Authority to the FDA
points out that the imposition is within the powers
of the government, the accreditation of medical The petitioners likewise question the delegation
practitioners with PhilHealth being a privilege by Congress to the FDA of the power to
and not a right. determine whether or not a supply or product is
to be included in the Essential Drugs List
The point of the OSG is well-taken. (EDL).266

It should first be mentioned that the practice of The Court finds nothing wrong with the
medicine is undeniably imbued with public delegation. The FDA does not only have the
interest that it is both a power and a duty of the power but also the competency to evaluate,
State to control and regulate it in order to protect register and cover health services and methods.
and promote the public welfare. Like the legal It is the only government entity empowered to
profession, the practice of medicine is not a right render such services and highly proficient to do
but a privileged burdened with conditions as it so. It should be understood that health services
directly involves the very lives of the people. A and methods fall under the gamut of terms that
fortiori, this power includes the power of are associated with what is ordinarily understood
Congress263 to prescribe the qualifications for as "health products."
the practice of professions or trades which affect
the public welfare, the public health, the public In this connection, Section 4 of R.A. No. 3 720,
morals, and the public safety; and to regulate or as amended by R.A. No. 9711 reads:
control such professions or trades, even to the
point of revoking such right altogether.264
 CONSTI LAW II ACJUCO FINALS 177

SEC. 4. To carry out the provisions of this Act, "(k) After due process, to order the ban, recall,
there is hereby created an office to be called the and/or withdrawal of any health product found to
Food and Drug Administration (FDA) in the have caused death, serious illness or serious
Department of Health (DOH). Said injury to a consumer or patient, or is found to be
Administration shall be under the Office of the imminently injurious, unsafe, dangerous, or
Secretary and shall have the following functions, grossly deceptive, and to require all concerned
powers and duties: to implement the risk management plan which is
a requirement for the issuance of the appropriate
"(a) To administer the effective implementation authorization;
of this Act and of the rules and regulations
issued pursuant to the same; x x x.

"(b) To assume primary jurisdiction in the As can be gleaned from the above, the functions,
collection of samples of health products; powers and duties of the FDA are specific to
enable the agency to carry out the mandates of
"(c) To analyze and inspect health products in the law. Being the country's premiere and sole
connection with the implementation of this Act; agency that ensures the safety of food and
medicines available to the public, the FDA was
"(d) To establish analytical data to serve as basis equipped with the necessary powers and
for the preparation of health products standards, functions to make it effective. Pursuant to the
and to recommend standards of identity, purity, principle of necessary implication, the mandate
safety, efficacy, quality and fill of container; by Congress to the FDA to ensure public health
and safety by permitting only food and
"(e) To issue certificates of compliance with medicines that are safe includes "service" and
technical requirements to serve as basis for the "methods." From the declared policy of the RH
issuance of appropriate authorization and spot- Law, it is clear that Congress intended that the
check for compliance with regulations regarding public be given only those medicines that are
operation of manufacturers, importers, proven medically safe, legal, non-abortifacient,
exporters, distributors, wholesalers, drug and effective in accordance with scientific and
outlets, and other establishments and facilities of evidence-based medical research standards.
health products, as determined by the FDA; The philosophy behind the permitted delegation
was explained in Echagaray v. Secretary of
"x x x Justice,267 as follows:

"(h) To conduct appropriate tests on all The reason is the increasing complexity of the
applicable health products prior to the issuance task of the government and the growing inability
of appropriate authorizations to ensure safety, of the legislature to cope directly with the many
efficacy, purity, and quality; problems demanding its attention. The growth of
society has ramified its activities and created
"(i) To require all manufacturers, traders, peculiar and sophisticated problems that the
distributors, importers, exporters, wholesalers, legislature cannot be expected reasonably to
retailers, consumers, and non-consumer users comprehend. Specialization even in legislation
of health products to report to the FDA any has become necessary. To many of the
incident that reasonably indicates that said problems attendant upon present day
product has caused or contributed to the death, undertakings, the legislature may not have the
serious illness or serious injury to a consumer, a competence, let alone the interest and the time,
patient, or any person; to provide the required direct and efficacious, not
to say specific solutions.
"(j) To issue cease and desist orders motu
propio or upon verified complaint for health 10- Autonomy of Local Governments and the
products, whether or not registered with the FDA Autonomous Region
Provided, That for registered health products,
the cease and desist order is valid for thirty (30) of Muslim Mindanao (ARMM)
days and may be extended for sixty ( 60) days
only after due process has been observed; As for the autonomy of local governments, the
petitioners claim that the RH Law infringes upon
the powers devolved to local government units
 CONSTI LAW II ACJUCO FINALS 178

(LGUs) under Section 17 of the Local involves the delivery of basic services within the
Government Code. Said Section 17 vested upon jurisdiction of the LGU.269 A complete
the LGUs the duties and functions pertaining to relinquishment of central government powers on
the delivery of basic services and facilities, as the matter of providing basic facilities and
follows: services cannot be implied as the Local
Government Code itself weighs against it.270
SECTION 17. Basic Services and Facilities. –
In this case, a reading of the RH Law clearly
(a) Local government units shall endeavor to be shows that whether it pertains to the
self-reliant and shall continue exercising the establishment of health care facilities,271 the
powers and discharging the duties and functions hiring of skilled health professionals,272 or the
currently vested upon them. They shall also training of barangay health workers,273 it will be
discharge the functions and responsibilities of the national government that will provide for the
national agencies and offices devolved to them funding of its implementation. Local autonomy is
pursuant to this Code. Local government units not absolute. The national government still has
shall likewise exercise such other powers and the say when it comes to national priority
discharge such other functions and programs which the local government is called
responsibilities as are necessary, appropriate, or upon to implement like the RH Law.
incidental to efficient and effective provision of
the basic services and facilities enumerated Moreover, from the use of the word "endeavor,"
herein. the LG Us are merely encouraged to provide
these services. There is nothing in the wording
(b) Such basic services and facilities include, but of the law which can be construed as making the
are not limited to, x x x. availability of these services mandatory for the
LGUs. For said reason, it cannot be said that the
While the aforementioned provision charges the RH Law amounts to an undue encroachment by
LGUs to take on the functions and the national government upon the autonomy
responsibilities that have already been devolved enjoyed by the local governments.
upon them from the national agencies on the
aspect of providing for basic services and The ARMM
facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a The fact that the RH Law does not intrude in the
categorical exception of cases involving autonomy of local governments can be equally
nationally-funded projects, facilities, programs applied to the ARMM. The RH Law does not
and services.268 Thus: infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the
(c) Notwithstanding the provisions of subsection organic act of the ARMM, alluded to by petitioner
(b) hereof, public works and infrastructure Tillah to justify the exemption of the operation of
projects and other facilities, programs and the RH Law in the autonomous region, refer to
services funded by the National Government the policy statements for the guidance of the
under the annual General Appropriations Act, regional government. These provisions relied
other special laws, pertinent executive orders, upon by the petitioners simply delineate the
and those wholly or partially funded from foreign powers that may be exercised by the regional
sources, are not covered under this Section, government, which can, in no manner, be
except in those cases where the local characterized as an abdication by the State of its
government unit concerned is duly designated power to enact legislation that would benefit the
as the implementing agency for such projects, general welfare. After all, despite the veritable
facilities, programs and services. [Emphases autonomy granted the ARMM, the Constitution
supplied] and the supporting jurisprudence, as they now
stand, reject the notion of imperium et imperio in
The essence of this express reservation of the relationship between the national and the
power by the national government is that, unless regional governments.274 Except for the
an LGU is particularly designated as the express and implied limitations imposed on it by
implementing agency, it has no power over a the Constitution, Congress cannot be restricted
program for which funding has been provided by to exercise its inherent and plenary power to
the national government under the annual legislate on all subjects which extends to all
general appropriations act, even if the program
 CONSTI LAW II ACJUCO FINALS 179

matters of general concern or common

interest.275 In conformity with the principle of separation of
Church and State, one religious group cannot be
11 - Natural Law allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves
With respect to the argument that the RH Law enough room for diversity and pluralism. As
violates natural law,276 suffice it to say that the such, everyone should be tolerant and open-
Court does not duly recognize it as a legal basis minded so that peace and harmony may
for upholding or invalidating a law. Our only continue to reign as we exist alongside each
guidepost is the Constitution. While every law other.
enacted by man emanated from what is
perceived as natural law, the Court is not obliged As healthful as the intention of the RH Law may
to see if a statute, executive issuance or be, the idea does not escape the Court that what
ordinance is in conformity to it. To begin with, it it seeks to address is the problem of rising
is not enacted by an acceptable legitimate body. poverty and unemployment in the country. Let it
Moreover, natural laws are mere thoughts and be said that the cause of these perennial issues
notions on inherent rights espoused by theorists, is not the large population but the unequal
philosophers and theologists. The jurists of the distribution of wealth. Even if population growth
philosophical school are interested in the law as is controlled, poverty will remain as long as the
an abstraction, rather than in the actual law of country's wealth remains in the hands of the very
the past or present.277 Unless, a natural right few.
has been transformed into a written law, it
cannot serve as a basis to strike down a law. In At any rate, population control may not be
Republic v. Sandiganbayan,278 the very case beneficial for the country in the long run. The
cited by the petitioners, it was explained that the European and Asian countries, which embarked
Court is not duty-bound to examine every law or on such a program generations ago , are now
action and whether it conforms with both the burdened with ageing populations. The number
Constitution and natural law. Rather, natural law of their young workers is dwindling with adverse
is to be used sparingly only in the most peculiar effects on their economy. These young workers
of circumstances involving rights inherent to represent a significant human capital which
man where no law is applicable.279 could have helped them invigorate, innovate and
fuel their economy. These countries are now
At any rate, as earlier expounded, the RH Law trying to reverse their programs, but they are still
does not sanction the taking away of life. It does struggling. For one, Singapore, even with
not allow abortion in any shape or form. It only incentives, is failing.
seeks to enhance the population control
program of the government by providing And in this country, the economy is being
information and making non-abortifacient propped up by remittances from our Overseas
contraceptives more readily available to the Filipino Workers. This is because we have an
public, especially to the poor. ample supply of young able-bodied workers.
What would happen if the country would be
Facts and Fallacies weighed down by an ageing population and the
fewer younger generation would not be able to
and the Wisdom of the Law support them? This would be the situation when
our total fertility rate would go down below the
In general, the Court does not find the RH Law replacement level of two (2) children per
as unconstitutional insofar as it seeks to provide woman.280
access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality Indeed, at the present, the country has a
reproductive healthcare services, methods, population problem, but the State should not use
devices, and supplies. As earlier pointed out, coercive measures (like the penal provisions of
however, the religious freedom of some sectors the RH Law against conscientious objectors) to
of society cannot be trampled upon in pursuit of solve it. Nonetheless, the policy of the Court is
what the law hopes to achieve. After all, the non-interference in the wisdom of a law.
Constitutional safeguard to religious freedom is
a recognition that man stands accountable to an x x x. But this Court cannot go beyond what the
authority higher than the State. legislature has laid down. Its duty is to say what
 CONSTI LAW II ACJUCO FINALS 180

the law is as enacted by the lawmaking body. healthcare service provider who fails and or
That is not the same as saying what the law refuses to disseminate information regarding
should be or what is the correct rule in a given programs and services on reproductive health
set of circumstances. It is not the province of the regardless of his or her religious beliefs.
judiciary to look into the wisdom of the law nor to
question the policies adopted by the legislative 3) Section 23(a)(2)(i) and the corresponding
branch. Nor is it the business of this Tribunal to provision in the RH-IRR insofar as they allow a
remedy every unjust situation that may arise married individual, not in an emergency or life-
from the application of a particular law. It is for threatening case, as defined under Republic Act
the legislature to enact remedial legislation if that No. 8344, to undergo reproductive health
would be necessary in the premises. But as procedures without the consent of the spouse;
always, with apt judicial caution and cold
neutrality, the Court must carry out the delicate 4) Section 23(a)(2)(ii) and the corresponding
function of interpreting the law, guided by the provision in the RH-IRR insofar as they limit the
Constitution and existing legislation and mindful requirement of parental consent only to elective
of settled jurisprudence. The Court's function is surgical procedures.
therefore limited, and accordingly, must confine
itself to the judicial task of saying what the law 5) Section 23(a)(3) and the corresponding
is, as enacted by the lawmaking body.281 provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any
Be that as it may, it bears reiterating that the RH healthcare service provider who fails and/or
Law is a mere compilation and enhancement of refuses to refer a patient not in an emergency or
the prior existing contraceptive and reproductive life-threatening case, as defined under Republic
health laws, but with coercive measures. Even if Act No. 8344, to another health care service
the Court decrees the RH Law as entirely provider within the same facility or one which is
unconstitutional, there will still be the Population conveniently accessible regardless of his or her
Act (R.A. No. 6365), the Contraceptive Act (R.A. religious beliefs;
No. 4729) and the reproductive health for
women or The Magna Carta of Women (R.A. No. 6) Section 23(b) and the corresponding
9710), sans the coercive provisions of the provision in the RH-IRR, particularly Section 5
assailed legislation. All the same, the principle of .24 thereof, insofar as they punish any public
"no-abortion" and "non-coercion" in the adoption officer who refuses to support reproductive
of any family planning method should be health programs or shall do any act that hinders
maintained. the full implementation of a reproductive health
program, regardless of his or her religious
WHEREFORE, the petitions are PARTIALLY beliefs;
GRANTED. Accordingly, the Court declares
R.A. No. 10354 as NOT UNCONSTITUTIONAL 7) Section 17 and the corresponding prov1s10n
except with respect to the following provisions in the RH-IRR regarding the rendering of pro
which are declared UNCONSTITUTIONAL: bona reproductive health service in so far as
they affect the conscientious objector in securing
1) Section 7 and the corresponding provision in PhilHealth accreditation; and
the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty 8) Section 3.0l(a) and Section 3.01 G) of the RH-
hospitals and hospitals owned and operated by IRR, which added the qualifier "primarily" in
a religious group to refer patients, not in an defining abortifacients and contraceptives, as
emergency or life-threatening case, as defined they are ultra vires and, therefore, null and void
under Republic Act No. 8344, to another health for contravening Section 4(a) of the RH Law and
facility which is conveniently accessible; and b) violating Section 12, Article II of the Constitution.
allow minor-parents or minors who have
suffered a miscarriage access to modem The Status Quo Ante Order issued by the Court
methods of family planning without written on March 19, 2013 as extended by its Order,
consent from their parents or guardian/s; dated July 16, 2013 , is hereby LIFTED, insofar
as the provisions of R.A. No. 10354 which have
2) Section 23(a)(l) and the corresponding been herein declared as constitutional.
provision in the RH-IRR, particularly Section 5
.24 thereof, insofar as they punish any SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 181

LIBERTY OF ABODE; RIGHT TO TRAVEL were being taken to a police station for an
investigation. They had no knowledge that they
G.R. No. L-14639 March 25, 1919 were destined for a life in Mindanao. They had
not been asked if they wished to depart from that
ZACARIAS VILLAVICENCIO, ET AL., region and had neither directly nor indirectly
petitioners, given their consent to the deportation. The
vs. involuntary guests were received on board the
JUSTO LUKBAN, ET AL., respondents. steamers by a representative of the Bureau of
Labor and a detachment of Constabulary
Alfonso Mendoza for petitioners. soldiers. The two steamers with their unwilling
City Fiscal Diaz for respondents. passengers sailed for Davao during the night of
October 25.
MALCOLM, J.:
The vessels reached their destination at Davao
The annals of juridical history fail to reveal a on October 29. The women were landed and
case quite as remarkable as the one which this receipted for as laborers by Francisco Sales,
application for habeas corpus submits for provincial governor of Davao, and by Feliciano
decision. While hardly to be expected to be met Yñigo and Rafael Castillo. The governor and the
with in this modern epoch of triumphant hacendero Yñigo, who appear as parties in the
democracy, yet, after all, the cause presents no case, had no previous notification that the
great difficulty if there is kept in the forefront of women were prostitutes who had been expelled
our minds the basic principles of popular from the city of Manila. The further happenings
government, and if we give expression to the to these women and the serious charges
paramount purpose for which the courts, as an growing out of alleged ill-treatment are of public
independent power of such a government, were interest, but are not essential to the disposition
constituted. The primary question is — Shall the of this case. Suffice it to say, generally, that
judiciary permit a government of the men instead some of the women married, others assumed
of a government of laws to be set up in the more or less clandestine relations with men,
Philippine Islands? others went to work in different capacities,
others assumed a life unknown and
Omitting much extraneous matter, of no moment disappeared, and a goodly portion found means
to these proceedings, but which might prove to return to Manila.
profitable reading for other departments of the
government, the facts are these: The Mayor of To turn back in our narrative, just about the time
the city of Manila, Justo Lukban, for the best of the Corregidor and the Negros were putting in to
all reasons, to exterminate vice, ordered the Davao, the attorney for the relatives and friends
segregated district for women of ill repute, which of a considerable number of the deportees
had been permitted for a number of years in the presented an application for habeas corpus to a
city of Manila, closed. Between October 16 and member of the Supreme Court. Subsequently,
October 25, 1918, the women were kept the application, through stipulation of the parties,
confined to their houses in the district by the was made to include all of the women who were
police. Presumably, during this period, the city sent away from Manila to Davao and, as the
authorities quietly perfected arrangements with same questions concerned them all, the
the Bureau of Labor for sending the women to application will be considered as including them.
Davao, Mindanao, as laborers; with some The application set forth the salient facts, which
government office for the use of the coastguard need not be repeated, and alleged that the
cutters Corregidor and Negros, and with the women were illegally restrained of their liberty by
Constabulary for a guard of soldiers. At any rate, Justo Lukban, Mayor of the city of Manila, Anton
about midnight of October 25, the police, acting Hohmann, chief of police of the city of Manila,
pursuant to orders from the chief of police, Anton and by certain unknown parties. The writ was
Hohmann and the Mayor of the city of Manila, made returnable before the full court. The city
Justo Lukban, descended upon the houses, fiscal appeared for the respondents, Lukban and
hustled some 170 inmates into patrol wagons, Hohmann, admitted certain facts relative to
and placed them aboard the steamers that sequestration and deportation, and prayed that
awaited their arrival. The women were given no the writ should not be granted because the
opportunity to collect their belongings, and petitioners were not proper parties, because the
apparently were under the impression that they action should have been begun in the Court of
 CONSTI LAW II ACJUCO FINALS 182

First Instance for Davao, Department of with the original order to the satisfaction of the
Mindanao and Sulu, because the respondents court nor explained their failure to do so, and
did not have any of the women under their therefore directed that those of the women not in
custody or control, and because their jurisdiction Manila be brought before the court by
did not extend beyond the boundaries of the city respondents Lukban, Hohmann, Sales, and
of Manila. According to an exhibit attached to the Yñigo on January 13, 1919, unless the women
answer of the fiscal, the 170 women were should, in written statements voluntarily made
destined to be laborers, at good salaries, on the before the judge of first instance of Davao or the
haciendas of Yñigo and Governor Sales. In open clerk of that court, renounce the right, or unless
court, the fiscal admitted, in answer to question the respondents should demonstrate some other
of a member of the court, that these women had legal motives that made compliance impossible.
been sent out of Manila without their consent. It was further stated that the question of whether
The court awarded the writ, in an order of the respondents were in contempt of court would
November 4, that directed Justo Lukban, Mayor later be decided and the reasons for the order
of the city of Manila, Anton Hohmann, chief of announced in the final decision.
police of the city of Manila, Francisco Sales,
governor of the province of Davao, and Feliciano Before January 13, 1919, further testimony
Yñigo, an hacendero of Davao, to bring before including that of a number of the women, of
the court the persons therein named, alleged to certain detectives and policemen, and of the
be deprived of their liberty, on December 2, provincial governor of Davao, was taken before
1918. the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First
Before the date mentioned, seven of the women Instance of Davao acting in the same capacity.
had returned to Manila at their own expense. On On January 13, 1919, the respondents
motion of counsel for petitioners, their testimony technically presented before the Court the
was taken before the clerk of the Supreme Court women who had returned to the city through their
sitting as commissioners. On the day named in own efforts and eight others who had been
the order, December 2nd, 1918, none of the brought to Manila by the respondents. Attorneys
persons in whose behalf the writ was issued for the respondents, by their returns, once again
were produced in court by the respondents. It recounted the facts and further endeavored to
has been shown that three of those who had account for all of the persons involved in the
been able to come back to Manila through their habeas corpus. In substance, it was stated that
own efforts, were notified by the police and the the respondents, through their representatives
secret service to appear before the court. The and agents, had succeeded in bringing from
fiscal appeared, repeated the facts more Davao with their consent eight women; that
comprehensively, reiterated the stand taken by eighty-one women were found in Davao who, on
him when pleading to the original petition copied notice that if they desired they could return to
a telegram from the Mayor of the city of Manila Manila, transportation fee, renounced the right
to the provincial governor of Davao and the through sworn statements; that fifty-nine had
answer thereto, and telegrams that had passed already returned to Manila by other means, and
between the Director of Labor and the attorney that despite all efforts to find them twenty-six
for that Bureau then in Davao, and offered could not be located. Both counsel for petitioners
certain affidavits showing that the women were and the city fiscal were permitted to submit
contained with their life in Mindanao and did not memoranda. The first formally asked the court to
wish to return to Manila. Respondents Sales find Justo Lukban, Mayor of the city of Manila,
answered alleging that it was not possible to Anton Hohmann, chief of police of the city of
fulfill the order of the Supreme Court because Manila, Jose Rodriguez and Fernando Ordax,
the women had never been under his control, members of the police force of the city of Manila,
because they were at liberty in the Province of Feliciano Yñigo, an hacendero of Davao,
Davao, and because they had married or signed Modesto Joaquin, the attorney for the Bureau of
contracts as laborers. Respondent Yñigo Labor, and Anacleto Diaz, fiscal of the city of
answered alleging that he did not have any of Manila, in contempt of court. The city fiscal
the women under his control and that therefore requested that the replica al memorandum de
it was impossible for him to obey the mandate. los recurridos, (reply to respondents'
The court, after due deliberation, on December memorandum) dated January 25, 1919, be
10, 1918, promulgated a second order, which struck from the record.
related that the respondents had not complied
 CONSTI LAW II ACJUCO FINALS 183

In the second order, the court promised to give citizens — to change their domicile from Manila
the reasons for granting the writ of habeas to another locality. On the contrary, Philippine
corpus in the final decision. We will now proceed penal law specifically punishes any public officer
to do so. who, not being expressly authorized by law or
regulation, compels any person to change his
One fact, and one fact only, need be recalled — residence.
these one hundred and seventy women were
isolated from society, and then at night, without In other countries, as in Spain and Japan, the
their consent and without any opportunity to privilege of domicile is deemed so important as
consult with friends or to defend their rights, to be found in the Bill of Rights of the
were forcibly hustled on board steamers for Constitution. Under the American constitutional
transportation to regions unknown. Despite the system, liberty of abode is a principle so deeply
feeble attempt to prove that the women left imbedded in jurisprudence and considered so
voluntarily and gladly, that such was not the case elementary in nature as not even to require a
is shown by the mere fact that the presence of constitutional sanction. Even the Governor-
the police and the constabulary was deemed General of the Philippine Islands, even the
necessary and that these officers of the law President of the United States, who has often
chose the shades of night to cloak their secret been said to exercise more power than any king
and stealthy acts. Indeed, this is a fact or potentate, has no such arbitrary prerogative,
impossible to refute and practically admitted by either inherent or express. Much less, therefore,
the respondents. has the executive of a municipality, who acts
within a sphere of delegated powers. If the
With this situation, a court would next expect to mayor and the chief of police could, at their mere
resolve the question — By authority of what law behest or even for the most praiseworthy of
did the Mayor and the Chief of Police presume motives, render the liberty of the citizen so
to act in deporting by duress these persons from insecure, then the presidents and chiefs of
Manila to another distant locality within the police of one thousand other municipalities of
Philippine Islands? We turn to the statutes and the Philippines have the same privilege. If these
we find — officials can take to themselves such power,
then any other official can do the same. And if
Alien prostitutes can be expelled from the any official can exercise the power, then all
Philippine Islands in conformity with an Act of persons would have just as much right to do so.
congress. The Governor-General can order the And if a prostitute could be sent against her
eviction of undesirable aliens after a hearing wishes and under no law from one locality to
from the Islands. Act No. 519 of the Philippine another within the country, then officialdom can
Commission and section 733 of the Revised hold the same club over the head of any citizen.
Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice Law defines power. Centuries ago Magna
of any person who is a common prostitute. Act Charta decreed that — "No freeman shall be
No. 899 authorizes the return of any citizen of taken, or imprisoned, or be disseized of his
the United States, who may have been freehold, or liberties, or free customs, or be
convicted of vagrancy, to the homeland. New outlawed, or exiled, or any other wise destroyed;
York and other States have statutes providing nor will we pass upon him nor condemn him, but
for the commitment to the House of Refuge of by lawful judgment of his peers or by the law of
women convicted of being common prostitutes. the land. We will sell to no man, we will not deny
Always a law! Even when the health authorities or defer to any man either justice or right."
compel vaccination, or establish a quarantine, or (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1
place a leprous person in the Culion leper eng. stat. at Large, 7.) No official, no matter how
colony, it is done pursuant to some law or order. high, is above the law. The courts are the forum
But one can search in vain for any law, order, or which functionate to safeguard individual liberty
regulation, which even hints at the right of the and to punish official transgressors. "The law,"
Mayor of the city of Manila or the chief of police said Justice Miller, delivering the opinion of the
of that city to force citizens of the Philippine Supreme Court of the United States, "is the only
Islands — and these women despite their being supreme power in our system of government,
in a sense lepers of society are nevertheless not and every man who by accepting office
chattels but Philippine citizens protected by the participates in its functions is only the more
same constitutional guaranties as are other strongly bound to submit to that supremacy, and
 CONSTI LAW II ACJUCO FINALS 184

to observe the limitations which it imposes upon have defended the same official in this action.
the exercise of the authority which it gives." (U.S. Nevertheless, that the act may be a crime and
vs. Lee [1882], 106 U.S., 196, 220.) "The very that the persons guilty thereof can be proceeded
idea," said Justice Matthews of the same high against, is no bar to the instant proceedings. To
tribunal in another case, "that one man may be quote the words of Judge Cooley in a case which
compelled to hold his life, or the means of living, will later be referred to — "It would be a
or any material right essential to the enjoyment monstrous anomaly in the law if to an application
of life, at the mere will of another, seems to be by one unlawfully confined, ta be restored to his
intolerable in any country where freedom liberty, it could be a sufficient answer that the
prevails, as being the essence of slavery itself." confinement was a crime, and therefore might
(Yick Wo vs. Hopkins [1886], 118 U.S., 356, be continued indefinitely until the guilty party
370.) All this explains the motive in issuing the was tried and punished therefor by the slow
writ of habeas corpus, and makes clear why we process of criminal procedure." (In the matter of
said in the very beginning that the primary Jackson [1867], 15 Mich., 416, 434.) The writ of
question was whether the courts should permit a habeas corpus was devised and exists as a
government of men or a government of laws to speedy and effectual remedy to relieve persons
be established in the Philippine Islands. from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any
What are the remedies of the unhappy victims of further rights of the parties are left untouched by
official oppression? The remedies of the citizen decision on the writ, whose principal purpose is
are three: (1) Civil action; (2) criminal action, and to set the individual at liberty.
(3) habeas corpus.
Granted that habeas corpus is the proper
The first is an optional but rather slow process remedy, respondents have raised three specific
by which the aggrieved party may recoup money objections to its issuance in this instance. The
damages. It may still rest with the parties in fiscal has argued (l) that there is a defect in
interest to pursue such an action, but it was parties petitioners, (2) that the Supreme Court
never intended effectively and promptly to meet should not a assume jurisdiction, and (3) that the
any such situation as that now before us. person in question are not restrained of their
liberty by respondents. It was finally suggested
As to criminal responsibility, it is true that the that the jurisdiction of the Mayor and the chief of
Penal Code in force in these Islands provides: police of the city of Manila only extends to the
city limits and that perforce they could not bring
Any public officer not thereunto authorized by the women from Davao.
law or by regulations of a general character in
force in the Philippines who shall banish any The first defense was not presented with any
person to a place more than two hundred vigor by counsel. The petitioners were relatives
kilometers distant from his domicile, except it be and friends of the deportees. The way the
by virtue of the judgment of a court, shall be expulsion was conducted by the city officials
punished by a fine of not less than three hundred made it impossible for the women to sign a
and twenty-five and not more than three petition for habeas corpus. It was consequently
thousand two hundred and fifty pesetas. proper for the writ to be submitted by persons in
their behalf. (Code of Criminal Procedure, sec.
Any public officer not thereunto expressly 78; Code of Civil Procedure, sec. 527.) The law,
authorized by law or by regulation of a general in its zealous regard for personal liberty, even
character in force in the Philippines who shall makes it the duty of a court or judge to grant a
compel any person to change his domicile or writ of habeas corpus if there is evidence that
residence shall suffer the penalty of destierro within the court's jurisdiction a person is unjustly
and a fine of not less than six hundred and imprisoned or restrained of his liberty, though no
twenty-five and not more than six thousand two application be made therefor. (Code of Criminal
hundred and fifty pesetas. (Art. 211.) Procedure, sec. 93.) Petitioners had standing in
court.
We entertain no doubt but that, if, after due
investigation, the proper prosecuting officers find The fiscal next contended that the writ should
that any public officer has violated this provision have been asked for in the Court of First
of law, these prosecutors will institute and press Instance of Davao or should have been made
a criminal prosecution just as vigorously as they returnable before that court. It is a general rule
 CONSTI LAW II ACJUCO FINALS 185

of good practice that, to avoid unnecessary money or personal belongings, they were
expense and inconvenience, petitions for prevented from exercising the liberty of going
habeas corpus should be presented to the when and where they pleased. The restraint of
nearest judge of the court of first instance. But liberty which began in Manila continued until the
this is not a hard and fast rule. The writ of habeas aggrieved parties were returned to Manila and
corpus may be granted by the Supreme Court or released or until they freely and truly waived his
any judge thereof enforcible anywhere in the right.
Philippine Islands. (Code of Criminal Procedure,
sec. 79; Code of Civil Procedure, sec. 526.) Consider for a moment what an agreement with
Whether the writ shall be made returnable such a defense would mean. The chief executive
before the Supreme Court or before an inferior of any municipality in the Philippines could
court rests in the discretion of the Supreme forcibly and illegally take a private citizen and
Court and is dependent on the particular place him beyond the boundaries of the
circumstances. In this instance it was not shown municipality, and then, when called upon to
that the Court of First Instance of Davao was in defend his official action, could calmly fold his
session, or that the women had any means by hands and claim that the person was under no
which to advance their plea before that court. On restraint and that he, the official, had no
the other hand, it was shown that the petitioners jurisdiction over this other municipality. We
with their attorneys, and the two original believe the true principle should be that, if the
respondents with their attorney, were in Manila; respondent is within the jurisdiction of the court
it was shown that the case involved parties and has it in his power to obey the order of the
situated in different parts of the Islands; it was court and thus to undo the wrong that he has
shown that the women might still be imprisoned inflicted, he should be compelled to do so. Even
or restrained of their liberty; and it was shown if the party to whom the writ is addressed has
that if the writ was to accomplish its purpose, it illegally parted with the custody of a person
must be taken cognizance of and decided before the application for the writ is no reason
immediately by the appellate court. The failure of why the writ should not issue. If the mayor and
the superior court to consider the application and the chief of police, acting under no authority of
then to grant the writ would have amounted to a law, could deport these women from the city of
denial of the benefits of the writ. Manila to Davao, the same officials must
necessarily have the same means to return them
The last argument of the fiscal is more plausible from Davao to Manila. The respondents, within
and more difficult to meet. When the writ was the reach of process, may not be permitted to
prayed for, says counsel, the parties in whose restrain a fellow citizen of her liberty by forcing
behalf it was asked were under no restraint; the her to change her domicile and to avow the act
women, it is claimed, were free in Davao, and with impunity in the courts, while the person who
the jurisdiction of the mayor and the chief of has lost her birthright of liberty has no effective
police did not extend beyond the city limits. At recourse. The great writ of liberty may not thus
first blush, this is a tenable position. On closer be easily evaded.
examination, acceptance of such dictum is found
to be perversive of the first principles of the writ It must be that some such question has
of habeas corpus. heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem,
A prime specification of an application for a writ a close examination of the authorities fails to
of habeas corpus is restraint of liberty. The reveal any analogous case. Certain decisions of
essential object and purpose of the writ of respectable courts are however very persuasive
habeas corpus is to inquire into all manner of in nature.
involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if A question came before the Supreme Court of
such restraint is illegal. Any restraint which will the State of Michigan at an early date as to
preclude freedom of action is sufficient. The whether or not a writ of habeas corpus would
forcible taking of these women from Manila by issue from the Supreme Court to a person within
officials of that city, who handed them over to the jurisdiction of the State to bring into the State
other parties, who deposited them in a distant a minor child under guardianship in the State,
region, deprived these women of freedom of who has been and continues to be detained in
locomotion just as effectively as if they had been another State. The membership of the Michigan
imprisoned. Placed in Davao without either Supreme Court at this time was notable. It was
 CONSTI LAW II ACJUCO FINALS 186

composed of Martin, chief justice, and Cooley, relieves him by compelling the oppressor to
Campbell, and Christiancy, justices. On the release his constraint. The whole force of the writ
question presented the court was equally is spent upon the respondent, and if he fails to
divided. Campbell, J., with whom concurred obey it, the means to be resorted to for the
Martin, C. J., held that the writ should be purposes of compulsion are fine and
quashed. Cooley, J., one of the most imprisonment. This is the ordinary mode of
distinguished American judges and law-writers, affording relief, and if any other means are
with whom concurred Christiancy, J., held that resorted to, they are only auxiliary to those which
the writ should issue. Since the opinion of are usual. The place of confinement is,
Justice Campbell was predicated to a large therefore, not important to the relief, if the guilty
extent on his conception of the English party is within reach of process, so that by the
decisions, and since, as will hereafter appear, power of the court he can be compelled to
the English courts have taken a contrary view, release his grasp. The difficulty of affording
only the following eloquent passages from the redress is not increased by the confinement
opinion of Justice Cooley are quoted: being beyond the limits of the state, except as
greater distance may affect it. The important
I have not yet seen sufficient reason to doubt the question is, where the power of control
power of this court to issue the present writ on exercised? And I am aware of no other remedy.
the petition which was laid before us. . . . (In the matter of Jackson [1867], 15 Mich., 416.)

It would be strange indeed if, at this late day, The opinion of Judge Cooley has since been
after the eulogiums of six centuries and a half accepted as authoritative by other courts.
have been expended upon the Magna Charta, (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene
and rivers of blood shed for its establishment; vs. People [1911], Colo., 117 Pac. Rep., 1000;
after its many confirmations, until Coke could Ex parte Young [1892], 50 Fed., 526.)
declare in his speech on the petition of right that
"Magna Charta was such a fellow that he will The English courts have given careful
have no sovereign," and after the extension of its consideration to the subject. Thus, a child had
benefits and securities by the petition of right, bill been taken out of English by the respondent. A
of rights and habeas corpus acts, it should now writ of habeas corpus was issued by the Queen's
be discovered that evasion of that great clause Bench Division upon the application of the
for the protection of personal liberty, which is the mother and her husband directing the defendant
life and soul of the whole instrument, is so easy to produce the child. The judge at chambers
as is claimed here. If it is so, it is important that gave defendant until a certain date to produce
it be determined without delay, that the the child, but he did not do so. His return stated
legislature may apply the proper remedy, as I that the child before the issuance of the writ had
can not doubt they would, on the subject being been handed over by him to another; that it was
brought to their notice. . . . no longer in his custody or control, and that it
was impossible for him to obey the writ. He was
The second proposition — that the statutory found in contempt of court. On appeal, the court,
provisions are confined to the case of through Lord Esher, M. R., said:
imprisonment within the state — seems to me to
be based upon a misconception as to the source A writ of habeas corpus was ordered to issue,
of our jurisdiction. It was never the case in and was issued on January 22. That writ
England that the court of king's bench derived its commanded the defendant to have the body of
jurisdiction to issue and enforce this writ from the the child before a judge in chambers at the Royal
statute. Statutes were not passed to give the Courts of Justice immediately after the receipt of
right, but to compel the observance of rights the writ, together with the cause of her being
which existed. . . . taken and detained. That is a command to bring
the child before the judge and must be obeyed,
The important fact to be observed in regard to unless some lawful reason can be shown to
the mode of procedure upon this writ is, that it is excuse the nonproduction of the child. If it could
directed to and served upon, not the person be shown that by reason of his having lawfully
confined, but his jailor. It does not reach the parted with the possession of the child before the
former except through the latter. The officer or issuing of the writ, the defendant had no longer
person who serves it does not unbar the prison power to produce the child, that might be an
doors, and set the prisoner free, but the court answer; but in the absence of any lawful reason
 CONSTI LAW II ACJUCO FINALS 187

he is bound to produce the child, and, if he does corpus, and if it be found that they did not,
not, he is in contempt of the Court for not whether the contempt should be punished or be
obeying the writ without lawful excuse. Many taken as purged.
efforts have been made in argument to shift the
question of contempt to some anterior period for The first order, it will be recalled, directed Justo
the purpose of showing that what was done at Lukban, Anton Hohmann, Francisco Sales, and
some time prior to the writ cannot be a contempt. Feliciano Yñigo to present the persons named in
But the question is not as to what was done the writ before the court on December 2, 1918.
before the issue of the writ. The question is The order was dated November 4, 1918. The
whether there has been a contempt in respondents were thus given ample time,
disobeying the writ it was issued by not practically one month, to comply with the writ. As
producing the child in obedience to its far as the record discloses, the Mayor of the city
commands. (The Queen vs. Bernardo [1889], 23 of Manila waited until the 21st of November
Q. B. D., 305. See also to the same effect the before sending a telegram to the provincial
Irish case of In re Matthews, 12 Ir. Com. Law governor of Davao. According to the response of
Rep. [N. S.], 233; The Queen vs. Barnardo, the attorney for the Bureau of Labor to the
Gossage's Case [1890], 24 Q. B. D., 283.) telegram of his chief, there were then in Davao
women who desired to return to Manila, but who
A decision coming from the Federal Courts is should not be permitted to do so because of
also of interest. A habeas corpus was directed to having contracted debts. The half-hearted effort
the defendant to have before the circuit court of naturally resulted in none of the parties in
the District of Columbia three colored persons, question being brought before the court on the
with the cause of their detention. Davis, in his day named.
return to the writ, stated on oath that he had
purchased the negroes as slaves in the city of For the respondents to have fulfilled the court's
Washington; that, as he believed, they were order, three optional courses were open: (1)
removed beyond the District of Columbia before They could have produced the bodies of the
the service of the writ of habeas corpus, and that persons according to the command of the writ;
they were then beyond his control and out of his or (2) they could have shown by affidavit that on
custody. The evidence tended to show that account of sickness or infirmity those persons
Davis had removed the negroes because he could not safely be brought before the court; or
suspected they would apply for a writ of habeas (3) they could have presented affidavits to show
corpus. The court held the return to be evasive that the parties in question or their attorney
and insufficient, and that Davis was bound to waived the right to be present. (Code of Criminal
produce the negroes, and Davis being present in Procedure, sec. 87.) They did not produce the
court, and refusing to produce them, ordered bodies of the persons in whose behalf the writ
that he be committed to the custody of the was granted; they did not show impossibility of
marshall until he should produce the negroes, or performance; and they did not present writings
be otherwise discharged in due course of law. that waived the right to be present by those
The court afterwards ordered that Davis be interested. Instead a few stereotyped affidavits
released upon the production of two of the purporting to show that the women were
negroes, for one of the negroes had run away contended with their life in Davao, some of which
and been lodged in jail in Maryland. Davis have since been repudiated by the signers, were
produced the two negroes on the last day of the appended to the return. That through ordinary
term. (United States vs. Davis [1839], 5 Cranch diligence a considerable number of the women,
C.C., 622, Fed. Cas. No. 14926. See also Robb at least sixty, could have been brought back to
vs. Connolly [1883], 111 U.S., 624; Church on Manila is demonstrated to be found in the
Habeas, 2nd ed., p. 170.) municipality of Davao, and that about this
number either returned at their own expense or
We find, therefore, both on reason and authority, were produced at the second hearing by the
that no one of the defense offered by the respondents.
respondents constituted a legitimate bar to the
granting of the writ of habeas corpus. The court, at the time the return to its first order
was made, would have been warranted
There remains to be considered whether the summarily in finding the respondents guilty of
respondent complied with the two orders of the contempt of court, and in sending them to jail
Supreme Court awarding the writ of habeas until they obeyed the order. Their excuses for the
 CONSTI LAW II ACJUCO FINALS 188

non-production of the persons were far from the city of Manila, Jose Rodriguez, and
sufficient. The, authorities cited herein pertaining Fernando Ordax, members of the police force of
to somewhat similar facts all tend to indicate with the city of Manila, Modesto Joaquin, the attorney
what exactitude a habeas corpus writ must be for the Bureau of Labor, Feliciano Yñigo, an
fulfilled. For example, in Gossage's case, supra, hacendero of Davao, and Anacleto Diaz, Fiscal
the Magistrate in referring to an earlier decision of the city of Manila.
of the Court, said: "We thought that, having
brought about that state of things by his own The power to punish for contempt of court should
illegal act, he must take the consequences; and be exercised on the preservative and not on the
we said that he was bound to use every effort to vindictive principle. Only occasionally should the
get the child back; that he must do much more court invoke its inherent power in order to retain
than write letters for the purpose; that he must that respect without which the administration of
advertise in America, and even if necessary justice must falter or fail. Nevertheless when one
himself go after the child, and do everything that is commanded to produce a certain person and
mortal man could do in the matter; and that the does not do so, and does not offer a valid
court would only accept clear proof of an excuse, a court must, to vindicate its authority,
absolute impossibility by way of excuse." In adjudge the respondent to be guilty of contempt,
other words, the return did not show that every and must order him either imprisoned or fined.
possible effort to produce the women was made An officer's failure to produce the body of a
by the respondents. That the court forebore at person in obedience to a writ of habeas corpus
this time to take drastic action was because it did when he has power to do so, is a contempt
not wish to see presented to the public gaze the committed in the face of the court. (Ex parte
spectacle of a clash between executive officials Sterns [1888], 77 Cal., 156; In re Patterson
and the judiciary, and because it desired to give [1888], 99 N. C., 407.)
the respondents another chance to demonstrate
their good faith and to mitigate their wrong. With all the facts and circumstances in mind, and
with judicial regard for human imperfections, we
In response to the second order of the court, the cannot say that any of the respondents, with the
respondents appear to have become more possible exception of the first named, has flatly
zealous and to have shown a better spirit. disobeyed the court by acting in opposition to its
Agents were dispatched to Mindanao, placards authority. Respondents Hohmann, Rodriguez,
were posted, the constabulary and the municipal Ordax, and Joaquin only followed the orders of
police joined in rounding up the women, and a their chiefs, and while, under the law of public
steamer with free transportation to Manila was officers, this does not exonerate them entirely, it
provided. While charges and counter-charges in is nevertheless a powerful mitigating
such a bitterly contested case are to be circumstance. The hacendero Yñigo appears to
expected, and while a critical reading of the have been drawn into the case through a
record might reveal a failure of literal fulfillment misconstruction by counsel of telegraphic
with our mandate, we come to conclude that communications. The city fiscal, Anacleto Diaz,
there is a substantial compliance with it. Our would seem to have done no more than to fulfill
finding to this effect may be influenced his duty as the legal representative of the city
somewhat by our sincere desire to see this government. Finding him innocent of any
unhappy incident finally closed. If any wrong is disrespect to the court, his counter-motion to
now being perpetrated in Davao, it should strike from the record the memorandum of
receive an executive investigation. If any attorney for the petitioners, which brings him into
particular individual is still restrained of her this undesirable position, must be granted.
liberty, it can be made the object of separate When all is said and done, as far as this record
habeas corpus proceedings. discloses, the official who was primarily
responsible for the unlawful deportation, who
Since the writ has already been granted, and ordered the police to accomplish the same, who
since we find a substantial compliance with it, made arrangements for the steamers and the
nothing further in this connection remains to be constabulary, who conducted the negotiations
done. with the Bureau of Labor, and who later, as the
head of the city government, had it within his
The attorney for the petitioners asks that we find power to facilitate the return of the unfortunate
in contempt of court Justo Lukban, Mayor of the women to Manila, was Justo Lukban, the Mayor
city of Manila, Anton Hohmann, chief of police of of the city of Manila. His intention to suppress
 CONSTI LAW II ACJUCO FINALS 189

the social evil was commendable. His methods

were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and
reluctantly acknowledged.

It would be possible to turn to the provisions of

section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the
writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in
addition to deal with him as for a contempt.
Some members of the court are inclined to this
stern view. It would also be possible to find that
since respondent Lukban did comply
substantially with the second order of the court,
he has purged his contempt of the first order.
Some members of the court are inclined to this
merciful view. Between the two extremes
appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of
the court tended to belittle and embarrass the
administration of justice to such an extent that
his later activity may be considered only as
extenuating his conduct. A nominal fine will at
once command such respect without being
unduly oppressive — such an amount is P100.

In resume — as before stated, no further action

on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax,
Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found
in contempt of court and shall pay into the office
of the clerk of the Supreme Court within five days
the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike
from the record the Replica al Memorandum de
los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So
ordered.

In concluding this tedious and disagreeable task,

may we not be permitted to express the hope
that this decision may serve to bulwark the
fortifications of an orderly government of laws
and to protect individual liberty from illegal
encroachment.
 CONSTI LAW II ACJUCO FINALS 190

G.R. No. 94284 April 8, 1991

Petitioner's Certiorari Petition before the Court of
RICARDO C. SILVERIO, petitioner, Appeals met a similar fate on 31 January 1990.
vs. Hence, this Petition for Review filed on 30 July
THE COURT OF APPEALS, HON. BENIGNO 1990.
G. GAVIOLA, as Judge of the Regional Trial
Court of Cebu City, Branch IX, and PEOPLE After the respective pleadings required by the
OF THE PHILIPPINES, respondents. Court were filed, we resolved to give due course
and to decide the case.
Quisumbing, Torres & Evangelista for
petitioner. Petitioner contends that respondent Court of
Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting
MELENCIO-HERRERA, J.: to lack of jurisdiction in issuing its Orders, dated
4 April and 28 July 1988, (1) on the basis of facts
This is a Petition for Review on Certiorari under allegedly patently erroneous, claiming that the
Rule 45 of the Rules of Court praying that the scheduled arraignments could not be held
Decision of respondent Court of Appeals in CA- because there was a pending Motion to Quash
G.R. SP No. 15827, entitled "Ricardo C. Silverio the Information; and (2) finding that the right to
vs. Hon. Benigno C. Gaviola, etc., et al.," dated travel can be impaired upon lawful order of the
31 January 1990, as well as the Resolution of 29 Court, even on grounds other than the "interest
June 1990 denying reconsideration, be set of national security, public safety or public
aside. health."

On 14 October 1985, Petitioner was charged We perceive no reversible error.

with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 1) Although the date of the filing of the
of the Regional Trial Court of Cebu. In due time, Motion to Quash has been omitted by Petitioner,
he posted bail for his provisional liberty. it is apparent that it was filed long after the filing
of the Information in 1985 and only after several
On 26 January 1988, or more than two (2) years arraignments had already been scheduled and
after the filing of the Information, respondent cancelled due to Petitioner's non-appearance. In
People of the Philippines filed an Urgent ex parte fact, said Motion to Quash was set for hearing
Motion to cancel the passport of and to issue a only on 19 February 1988. Convincingly shown
hold-departure Order against accused-petitioner by the Trial Court and conformed to by
on the ground that he had gone abroad several respondent Appellate Court is the concurrence
times without the necessary Court approval of the following circumstances:
resulting in postponements of the arraignment
and scheduled hearings. 1. The records will show that the information
was filed on October 14, 1985. Until this date (28
Overruling opposition, the Regional Trial Court, July 1988), the case had yet to be arraigned.
on 4 April 1988, issued an Order directing the Several scheduled arraignments were cancelled
Department of Foreign Affairs to cancel and reset, mostly due to the failure of accused
Petitioner's passport or to deny his application Silverio to appear. The reason for accused
therefor, and the Commission on Immigration to Silverio's failure to appear had invariably been
prevent Petitioner from leaving the country. This because he is abroad in the United States of
order was based primarily on the Trial Court's America;
finding that since the filing of the Information on
14 October 1985, "the accused has not yet been 2. Since the information was filed, until this
arraigned because he has never appeared in date, accused Silverio had never appeared in
Court on the dates scheduled for his person before the Court;
arraignment and there is evidence to show that
accused Ricardo C. Silverio, Sr. has left the 3. The bond posted by accused Silverio had
country and has gone abroad without the been cancelled twice and warrants of arrest had
knowledge and permission of this Court" (Rollo, been issued against him all for the same reason
p. 45). Petitioner's Motion for Reconsideration –– failure to appear at scheduled arraignments.
was denied on 28 July 1988.
 CONSTI LAW II ACJUCO FINALS 191

In all candidness, the Court makes the the Courts to curtail the liberty of abode within
observation that it has given accused Silverio the limits prescribed by law, it restricts the
more than enough consideration. The limit had allowable impairment of the right to travel only
long been reached (Order, 28 July 1988, Crim. on grounds of interest of national security, public
Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. safety or public health, as compared to the
73). provisions on freedom of movement in the 1935
and 1973 Constitutions.
Patently, therefore, the questioned RTC Orders,
dated 4 April 1988 and 28 July 1988, were not Under the 1935 Constitution, the liberty of abode
based on erroneous facts, as Petitioner would and of travel were treated under one
want this Court to believe. To all appearances, provision.1âwphi1 Article III, Section 1(4) thereof
the pendency of a Motion to Quash came about reads:
only after several settings for arraignment had
been scheduled and cancelled by reason of The liberty of abode and of changing the same
Petitioner's non-appearance. within the limits prescribed by law shall not be
impaired.
2) Petitioner's further submission is that
respondent Appellate Court "glaringly erred" in The 1973 Constitution altered the 1935 text by
finding that the right to travel can be impaired explicitly including the liberty of travel, thus:
upon lawful order of the Court, even on grounds
other than the "interest of national security, The liberty of abode and of travel shall not be
public safety or public health." impaired except upon lawful order of the court or
when necessary in the interest of national
To start with, and this has not been controverted security, public safety, or public health (Article
by Petitioner, the bail bond he had posted had IV, Section 5).
been cancelled and Warrants of Arrest had been
issued against him by reason, in both instances, The 1987 Constitution has split the two
of his failure to appear at scheduled freedoms into two distinct sentences and treats
arraignments. Warrants of Arrest having been them differently, to wit:
issued against him for violation of the conditions
of his bail bond, he should be taken into custody. Sec. 6.The liberty of abode and of changing the
"Bail is the security given for the release of a same within the limits prescribed by law shall not
person in custody of the law, furnished by him or be impaired except upon lawful order of the
a bondsman, conditioned upon his appearance court. Neither shall the right to travel be impaired
before any court when so required by the Court except in the interest of national security, public
or the Rules (1985 Rules on Criminal Procedure, safety, or public health, as may be provided by
as amended, Rule 114, Secs. 1 and 2). law.

The foregoing condition imposed upon an Petitioner thus theorizes that under the 1987
accused to make himself available at all times Constitution, Courts can impair the right to travel
whenever the Court requires his presence only on the grounds of "national security, public
operates as a valid restriction of his right to travel safety, or public health."
(Manotoc, Jr. vs. Court of Appeals, et al. No.
62100, 30 May 1986, 142 SCRA 149). A person The submission is not well taken.
facing criminal charges may be restrained by the
Court from leaving the country or, if abroad, Article III, Section 6 of the 1987 Constitution
compelled to return (Constitutional Law, Cruz, should be interpreted to mean that while the
Isagani A., 1987 Edition, p. 138). So it is also that liberty of travel may be impaired even without
"An accused released on bail may be re-arrested Court Order, the appropriate executive officers
without the necessity of a warrant if he attempts or administrative authorities are not armed with
to depart from the Philippines without prior arbitrary discretion to impose limitations. They
permission of the Court where the case is can impose limits only on the basis of "national
pending (ibid., Sec. 20 [2nd security, public safety, or public health" and "as
par. ]). may be provided by law," a limitive phrase which
did not appear in the 1973 text (The Constitution,
Petitioner takes the posture, however, that while Bernas, Joaquin G.,S.J., Vol. I, First Edition,
the 1987 Constitution recognizes the power of 1987, p. 263). Apparently, the phraseology in the
 CONSTI LAW II ACJUCO FINALS 192

1987 Constitution was a reaction to the ban on WHEREFORE, the judgment under review is
international travel imposed under the previous hereby AFFIRMED. Costs against petitioner,
regime when there was a Travel Processing Ricardo C. Silverio.
Center, which issued certificates of eligibility to
travel upon application of an interested party SO ORDERED.
(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.
 CONSTI LAW II ACJUCO FINALS 193

August 28, 1987, Col. Gregorio Honasan, one of

G.R. No. 88211 September 15, 1989 the major players in the February Revolution, led
a failed coup that left scores of people, both
FERDINAND E. MARCOS, IMELDA R. combatants and civilians, dead. There were
MARCOS, FERDINAND R. MARCOS, JR., several other armed sorties of lesser
IRENE M. ARANETA, IMEE MANOTOC, significance, but the message they conveyed
TOMAS MANOTOC, GREGORIO ARANETA, was the same — a split in the ranks of the
PACIFICO E. MARCOS, NICANOR YÑIGUEZ military establishment that thraetened civilian
and PHILIPPINE CONSTITUTION supremacy over military and brought to the fore
ASSOCIATION (PHILCONSA), represented the realization that civilian government could be
by its President, CONRADO F. ESTRELLA, at the mercy of a fractious military.
petitioners,
vs. But the armed threats to the Government were
HONORABLE RAUL MANGLAPUS, not only found in misguided elements and
CATALINO MACARAIG, SEDFREY among rabid followers of Mr. Marcos. There are
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, also the communist insurgency and the
FIDEL RAMOS, RENATO DE VILLA, in their seccessionist movement in Mindanao which
capacity as Secretary of Foreign Affairs, gained ground during the rule of Mr. Marcos, to
Executive Secretary, Secretary of Justice, the extent that the communists have set up a
Immigration Commissioner, Secretary of parallel government of their own on the areas
National Defense and Chief of Staff, they effectively control while the separatist are
respectively, respondents. virtually free to move about in armed bands.
There has been no let up on this groups'
determination to wrest power from the
CORTES, J.: govermnent. Not only through resort to arms but
also to through the use of propaganda have they
Before the Court is a contreversy of grave been successful in dreating chaos and
national importance. While ostensibly only legal destabilizing the country.
issues are involved, the Court's decision in this
case would undeniably have a profound effect Nor are the woes of the Republic purely political.
on the political, economic and other aspects of The accumulated foreign debt and the plunder of
national life. the nation attributed to Mr. Marcos and his
cronies left the economy devastated. The efforts
We recall that in February 1986, Ferdinand E. at economic recovery, three years after Mrs.
Marcos was deposed from the presidency via Aquino assumed office, have yet to show
the non-violent "people power" revolution and concrete results in alleviating the poverty of the
forced into exile. In his stead, Corazon C. Aquino masses, while the recovery of the ill-gotten
was declared President of the Republic under a wealth of the Marcoses has remained elusive.
revolutionary government. Her ascension to and
consilidation of power have not been Now, Mr. Marcos, in his deathbed, has signified
unchallenged. The failed Manila Hotel coup in his wish to return to the Philipppines to die. But
1986 led by political leaders of Mr. Marcos, the Mrs. Aquino, considering the dire consequences
takeover of television station Channel 7 by rebel to the nation of his return at a time when the
troops led by Col. Canlas with the support of stability of government is threatened from
"Marcos loyalists" and the unseccessful plot of various directions and the economy is just
the Marcos spouses to surreptitiously return beginning to rise and move forward, has stood
from Hawii with mercenaries aboard an aircraft firmly on the decision to bar the return of Mr.
chartered by a Lebanese arms dealer [Manila Marcos and his family.
Bulletin, January 30, 1987] awakened the nation
to the capacity of the Marcoses to stir trouble The Petition
even from afar and to the fanaticism and blind
loyalty of their followers in the country. The This case is unique. It should not create a
ratification of the 1987 Constitution enshrined precedent, for the case of a dictator forced out of
the victory of "people power" and also clearly office and into exile after causing twenty years of
reinforced the constitutional moorings of Mrs. political, economic and social havoc in the
Aquino's presidency. This did not, however, stop country and who within the short space of three
bloody challenges to the government. On years seeks to return, is in a class by itself.
 CONSTI LAW II ACJUCO FINALS 194

to national security, public safety, or public

This petition for mandamus and prohibition asks health a political question?
the Courts to order the respondents to issue
travel documents to Mr. Marcos and the d. Assuming that the Court may inquire as
immediate members of his family and to enjoin to whether the return of former President Marcos
the implementation of the President's decision to and his family is a clear and present danger to
bar their return to the Philippines. national security, public safety, or public health,
have respondents established such fact?
The Issue
3. Have the respondents, therefore, in
Th issue is basically one of power: whether or implementing the President's decision to bar the
not, in the exercise of the powers granted by the return of former President Marcos and his family,
Constitution, the President may prohibit the acted and would be acting without jurisdiction, or
Marcoses from returning to the Philippines. in excess of jurisdiction, or with grave abuse of
discretion, in performing any act which would
According to the petitioners, the resolution of the effectively bar the return of former President
case would depend on the resolution of the Marcos and his family to the Philippines?
following issues: [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
1. Does the President have the power to bar
the return of former President Marcos and family The case for petitioners is founded on the
to the Philippines? assertion that the right of the Marcoses to return
to the Philippines is guaranteed under the
a. Is this a political question? following provisions of the Bill of Rights, to wit:

2. Assuming that the President has the Section 1. No person shall be deprived of life,
power to bar former President Marcos and his liberty, or property without due process of law,
family from returning to the Philippines, in the nor shall any person be denied the equal
interest of "national security, public safety or protection of the laws.
public health
xxx xxx xxx
a. Has the President made a finding that the
return of former President Marcos and his family Section 6. The liberty of abode and of changing
to the Philippines is a clear and present danger the same within the limits prescribed by law shall
to national security, public safety or public not be impaired except upon lawful order of the
health? court. Neither shall the right to travel be impaired
except in the interest of national security, public
b. Assuming that she has made that finding safety, or public health, as may be provided by
law.
(1) Have the requirements of due process
been complied with in making such finding? The petitioners contend that the President is
without power to impair the liberty of abode of
(2) Has there been prior notice to the Marcoses because only a court may do so
petitioners? "within the limits prescribed by law." Nor may the
President impair their right to travel because no
(3) Has there been a hearing? law has authorized her to do so. They advance
the view that before the right to travel may be
(4) Assuming that notice and hearing may be impaired by any authority or agency of the
dispensed with, has the President's decision, government, there must be legislation to that
including the grounds upon which it was based, effect.
been made known to petitioners so that they
may controvert the same? The petitioners further assert that under
international law, the right of Mr. Marcos and his
c. Is the President's determination that the family to return to the Philippines is guaranteed.
return of former President Marcos and his family
to the Philippines is a clear and present danger The Universal Declaration of Human Rights
provides:
 CONSTI LAW II ACJUCO FINALS 195

application thereof to petitioners Ferdinand E.

Article 13. (1) Everyone has the right to freedom Marcos and family. But when the question is
of movement and residence within the borders whether the two rights claimed by petitioners
of each state. Ferdinand E. Marcos and family impinge on or
collide with the more primordial and
(2) Everyone has the right to leave any country, transcendental right of the State to security and
including his own, and to return to his country. safety of its nationals, the question becomes
political and this Honorable Court can not
Likewise, the International Covenant on Civil consider it.
and Political Rights, which had been ratified by
the Philippines, provides: There are thus gradations to the question, to wit:

Article 12 Do petitioners Ferdinand E. Marcos and family

have the right to return to the Philippines and
1) Everyone lawfully within the territory of a reestablish their residence here? This is clearly
State shall, within that territory, have the right to a justiciable question which this Honorable Court
liberty of movement and freedom to choose his can decide.
residence.
Do petitioners Ferdinand E. Marcos and family
2) Everyone shall be free to leave any have their right to return to the Philippines and
country, including his own. reestablish their residence here even if their
return and residence here will endanger national
3) The above-mentioned rights shall not be security and public safety? this is still a
subject to any restrictions except those which justiciable question which this Honorable Court
are provided by law, are necessary to protect can decide.
national security, public order (order public),
public health or morals or the rights and Is there danger to national security and public
freedoms of others, and are consistent with the safety if petitioners Ferdinand E. Marcos and
other rights recognized in the present Covenant. family shall return to the Philippines and
establish their residence here? This is now a
4) No one shall be arbitrarily deprived of the political question which this Honorable Court can
right to enter his own country. not decide for it falls within the exclusive
authority and competence of the President of the
On the other hand, the respondents' principal Philippines. [Memorandum for Respondents, pp.
argument is that the issue in this case involves a 9-11; Rollo, pp. 297-299.]
political question which is non-justiciable.
According to the Solicitor General: Respondents argue for the primacy of the right
of the State to national security over individual
As petitioners couch it, the question involved is rights. In support thereof, they cite Article II of
simply whether or not petitioners Ferdinand E. the Constitution, to wit:
Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these Section 4. The prime duty of the Government
constitutional rights in vacuo without reference is to serve and protect the people. The
to attendant circumstances. Government may call upon the people to defend
the State and, in the fulfillment thereof, all
Respondents submit that in its proper citizens may be required, under conditions
formulation, the issue is whether or not provided by law, to render personal, military, or
petitioners Ferdinand E. Marcos and family have civil service.
the right to return to the Philippines and reside
here at this time in the face of the determination Section 5. The maintenance of peace and
by the President that such return and residence order, the protection of life, liberty, and property,
will endanger national security and public safety. and the promotion of the general welfare are
essential for the enjoyment by all the people of
It may be conceded that as formulated by the blessings of democracy.
petitioners, the question is not a political
question as it involves merely a determination of Respondents also point out that the decision to
what the law provides on the matter and ban Mr. Marcos and family from returning to the
 CONSTI LAW II ACJUCO FINALS 196

Philippines for reasons of national security and protect national security, public order, public
public safety has international precedents. health or morals or enter qqqs own country" of
Rafael Trujillo of the Dominican Republic, which one cannot be "arbitrarily deprived." [Art.
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico 12(4).] It would therefore be inappropriate to
of Guatemala, Fulgencio batista of Cuba, King construe the limitations to the right to return to
Farouk of Egypt, Maximiliano Hernandez one's country in the same context as those
Martinez of El Salvador, and Marcos Perez pertaining to the liberty of abode and the right to
Jimenez of Venezuela were among the deposed travel.
dictators whose return to their homelands was
prevented by their governments. [See Statement The right to return to one's country is not among
of Foreign Affairs Secretary Raul S. Manglapus, the rights specifically guaranteed in the Bill of
quoted in Memorandum for Respondents, pp. Rights, which treats only of the liberty of abode
26-32; Rollo, pp. 314-319.] and the right to travel, but it is our well-
considered view that the right to return may be
The parties are in agreement that the underlying considered, as a generally accepted principle of
issue is one of the scope of presidential power international law and, under our Constitution, is
and its limits. We, however, view this issue in a part of the law of the land [Art. II, Sec. 2 of the
different light. Although we give due weight to Constitution.] However, it is distinct and
the parties' formulation of the issues, we are not separate from the right to travel and enjoys a
bound by its narrow confines in arriving at a different protection under the International
solution to the controversy. Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art.
At the outset, we must state that it would not do 12 (4).]
to view the case within the confines of the right
to travel and the import of the decisions of the Thus, the rulings in the cases Kent and Haig
U.S. Supreme Court in the leading cases of Kent which refer to the issuance of passports for the
v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d purpose of effectively exercising the right to
1204] and Haig v. Agee [453 U.S. 280, 101 SCt travel are not determinative of this case and are
2766, 69 L Ed. 2d 640) which affirmed the right only tangentially material insofar as they relate
to travel and recognized exceptions to the to a conflict between executive action and the
exercise thereof, respectively. exercise of a protected right. The issue before
the Court is novel and without precedent in
It must be emphasized that the individual right Philippine, and even in American jurisprudence.
involved is not the right to travel from the
Philippines to other countries or within the Consequently, resolution by the Court of the
Philippines. These are what the right to travel well-debated issue of whether or not there can
would normally connote. Essentially, the right be limitations on the right to travel in the absence
involved is the right to return to one's country, a of legislation to that effect is rendered
totally distinct right under international law, unnecessary. An appropriate case for its
independent from although related to the right to resolution will have to be awaited.
travel. Thus, the Universal Declaration of
Humans Rights and the International Covenant Having clarified the substance of the legal issue,
on Civil and Political Rights treat the right to we find now a need to explain the methodology
freedom of movement and abode within the for its resolution. Our resolution of the issue will
territory of a state, the right to leave a country, involve a two-tiered approach. We shall first
and the right to enter one's country as separate resolve whether or not the President has the
and distinct rights. The Declaration speaks of the power under the Constitution, to bar the
"right to freedom of movement and residence Marcoses from returning to the Philippines.
within the borders of each state" [Art. 13(l)] Then, we shall determine, pursuant to the
separately from the "right to leave any country, express power of the Court under the
including his own, and to return to his country." Constitution in Article VIII, Section 1, whether or
[Art. 13(2).] On the other hand, the Covenant not the President acted arbitrarily or with grave
guarantees the "right to liberty of movement and abuse of discretion amounting to lack or excess
freedom to choose his residence" [Art. 12(l)] and of jurisdiction when she determined that the
the right to "be free to leave any country, return of the Marcose's to the Philippines poses
including his own." [Art. 12(2)] which rights may a serious threat to national interest and welfare
be restricted by such laws as "are necessary to and decided to bar their return.
 CONSTI LAW II ACJUCO FINALS 197

The inevitable question then arises: by

Executive Power enumerating certain powers of the President did
the framers of the Constitution intend that the
The 1987 Constitution has fully restored the President shall exercise those specific powers
separation of powers of the three great branches and no other? Are these se enumerated powers
of government. To recall the words of Justice the breadth and scope of "executive power"?
Laurel in Angara v. Electoral Commission [63 Petitioners advance the view that the President's
Phil. 139 (1936)], "the Constitution has blocked powers are limited to those specifically
but with deft strokes and in bold lines, allotment enumerated in the 1987 Constitution. Thus, they
of power to the executive, the legislative and the assert: "The President has enumerated powers,
judicial departments of the government." [At and what is not enumerated is impliedly denied
157.1 Thus, the 1987 Constitution explicitly to her. Inclusion unius est exclusio
provides that "[the legislative power shall be alterius[Memorandum for Petitioners, p. 4- Rollo
vested in the Congress of the Philippines" Art VI, p. 233.1 This argument brings to mind the
Sec. 11, "[t]he executive power shall bevested in institution of the U.S. Presidency after which
the President of the Philippines" [Art. VII, Sec. ours is legally patterned.**
11, and "[te judicial power shall be vested in one
Supreme Court and in such lower courts as may Corwin, in his monumental volume on the
be established by law" [Art. VIII, Sec. 1.] These President of the United States grappled with the
provisions not only establish a separation of same problem. He said:
powers by actual division [Angara v. Electoral
Commission, supra] but also confer plenary Article II is the most loosely drawn chapter of the
legislative, executive and judicial powers subject Constitution. To those who think that a
only to limitations provided in the Constitution. constitution ought to settle everything
For as the Supreme Court in Ocampo v. beforehand it should be a nightmare; by the
Cabangis [15 Phil. 626 (1910)] pointed out "a same token, to those who think that constitution
grant of the legislative power means a grant of makers ought to leave considerable leeway for
all legislative power; and a grant of the judicial the future play of political forces, it should be a
power means a grant of all the judicial power vision realized.
which may be exercised under the government."
[At 631-632.1 If this can be said of the legislative We encounter this characteristic of Article 11 in
power which is exercised by two chambers with its opening words: "The executive power shall be
a combined membership of more than two vested in a President of the United States of
hundred members and of the judicial power America." . . .. [The President: Office and
which is vested in a hierarchy of courts, it can Powers, 17871957, pp. 3-4.]
equally be said of the executive power which is
vested in one official the President. Reviewing how the powers of the U.S. President
were exercised by the different persons who
As stated above, the Constitution provides that held the office from Washington to the early
"[t]he executive power shall be vested in the 1900's, and the swing from the presidency by
President of the Philippines." [Art. VII, Sec. 1]. commission to Lincoln's dictatorship, he
However, it does not define what is meant by concluded that "what the presidency is at any
executive power" although in the same article it particular moment depends in important
touches on the exercise of certain powers by the measure on who is President." [At 30.]
President, i.e., the power of control over all
executive departments, bureaus and offices, the This view is shared by Schlesinger who wrote in
power to execute the laws, the appointing The Imperial Presidency:
power, the powers under the commander-in-
chief clause, the power to grant reprieves, For the American Presidency was a peculiarly
commutations and pardons, the power to grant personal institution. it remained of course, an
amnesty with the concurrence of Congress, the agency of government subject to unvarying
power to contract or guarantee foreign loans, the demands and duties no remained, of cas
power to enter into treaties or international President. But, more than most agencies of
agreements, the power to submit the budget to government, it changed shape, intensity and
Congress, and the power to address Congress ethos according to the man in charge. Each
[Art. VII, Sec. 14-23]. President's distinctive temperament and
character, his values, standards, style, his
 CONSTI LAW II ACJUCO FINALS 198

habits, expectations, Idiosyncrasies, "executive power." Corollarily, the powers of the

compulsions, phobias recast the WhiteHouse President cannot be said to be limited only to the
and pervaded the entire government. The specific powers enumerated in the Constitution.
executive branch, said Clark Clifford, was a In other words, executive power is more than the
chameleon, taking its color from the character sum of specific powers so enumerated,
and personality of the President. The thrust of
the office, its impact on the constitutional order, It has been advanced that whatever power
therefore altered from President to President. inherent in the government that is neither
Above all, the way each President understood it legislative nor judicial has to be executive. Thus,
as his personal obligation to inform and involve in the landmark decision of Springer v.
the Congress, to earn and hold the confidence Government of the Philippine Islands, 277 U.S.
of the electorate and to render an accounting to 189 (1928), on the issue of who between the
the nation and posterity determined whether he Governor-General of the Philippines and the
strengthened or weakened the constitutional Legislature may vote the shares of stock held by
order. [At 212- 213.] the Government to elect directors in the National
Coal Company and the Philippine National
We do not say that the presidency is what Mrs. Bank, the U.S. Supreme Court, in upholding the
Aquino says it is or what she does but, rather, power of the Governor-General to do so, said:
that the consideration of tradition and the
development of presidential power under the ...Here the members of the legislature who
different constitutions are essential for a constitute a majority of the "board" and
complete understanding of the extent of and "committee" respectively, are not charged with
limitations to the President's powers under the the performance of any legislative functions or
1987 Constitution. The 1935 Constitution with the doing of anything which is in aid of
created a strong President with explicitly broader performance of any such functions by the
powers than the U.S. President. The 1973 legislature. Putting aside for the moment the
Constitution attempted to modify the system of question whether the duties devolved upon
government into the parliamentary type, with the these members are vested by the Organic Act in
President as a mere figurehead, but through the Governor-General, it is clear that they are not
numerous amendments, the President became legislative in character, and still more clear that
even more powerful, to the point that he was also they are not judicial. The fact that they do not fall
the de facto Legislature. The 1987 Constitution, within the authority of either of these two
however, brought back the presidential system constitutes logical ground for concluding that
of government and restored the separation of they do fall within that of the remaining one
legislative, executive and judicial powers by their among which the powers of government are
actual distribution among three distinct branches divided ....[At 202-203; Emphasis supplied.]
of government with provision for checks and
balances. We are not unmindful of Justice Holmes' strong
dissent. But in his enduring words of dissent we
It would not be accurate, however, to state that find reinforcement for the view that it would
"executive power" is the power to enforce the indeed be a folly to construe the powers of a
laws, for the President is head of state as well as branch of government to embrace only what are
head of government and whatever powers specifically mentioned in the Constitution:
inhere in such positions pertain to the office
unless the Constitution itself withholds it. The great ordinances of the Constitution do not
Furthermore, the Constitution itself provides that establish and divide fields of black and white.
the execution of the laws is only one of the Even the more specific of them are found to
powers of the President. It also grants the terminate in a penumbra shading gradually from
President other powers that do not involve the one extreme to the other. ....
execution of any provision of law, e.g., his power
over the country's foreign relations. xxx xxx xxx

On these premises, we hold the view that It does not seem to need argument to show that
although the 1987 Constitution imposes however we may disguise it by veiling words we
limitations on the exercise of specific powers of do not and cannot carry out the distinction
the President, it maintains intact what is between legislative and executive action with
traditionally considered as within the scope of mathematical precision and divide the branches
 CONSTI LAW II ACJUCO FINALS 199

into watertight compartments, were it ever so and from whom billions of dollars believed to be
desirable to do so, which I am far from believing ill-gotten wealth are sought to be recovered. The
that it is, or that the Constitution requires. [At constitutional guarantees they invoke are neither
210- 211.] absolute nor inflexible. For the exercise of even
the preferred freedoms of speech and
The Power Involved ofexpression, although couched in absolute
terms, admits of limits and must be adjusted to
The Constitution declares among the guiding the requirements of equally important public
principles that "[t]he prime duty of interests [Zaldivar v. Sandiganbayan, G.R. Nos.
theGovernment is to serve and protect the 79690-707, October 7, 1981.]
people" and that "[t]he maintenance of peace
and order,the protection of life, liberty, and To the President, the problem is one of
property, and the promotion of the general balancing the general welfare and the common
welfare are essential for the enjoyment by all the good against the exercise of rights of certain
people of the blessings of democracy." [Art. II, individuals. The power involved is the
Secs. 4 and 5.] President's residual power to protect the general
welfare of the people. It is founded on the duty
Admittedly, service and protection of the people, of the President, as steward of the people. To
the maintenance of peace and order, the paraphrase Theodore Roosevelt, it is not only
protection of life, liberty and property, and the the power of the President but also his duty to do
promotion of the general welfare are essentially anything not forbidden by the Constitution or the
ideals to guide governmental action. But such laws that the needs of the nation demand [See
does not mean that they are empty words. Thus, Corwin, supra, at 153]. It is a power borne by the
in the exercise of presidential functions, in President's duty to preserve and defend the
drawing a plan of government, and in directing Constitution. It also may be viewed as a power
implementing action for these plans, or from implicit in the President's duty to take care that
another point of view, in making any decision as the laws are faithfully executed [see Hyman, The
President of the Republic, the President has to American President, where the author advances
consider these principles, among other things, the view that an allowance of discretionary
and adhere to them. power is unavoidable in any government and is
best lodged in the President].
Faced with the problem of whether or not the
time is right to allow the Marcoses to return to More particularly, this case calls for the exercise
the Philippines, the President is, under the of the President's powers as protector of the
Constitution, constrained to consider these basic peace. Rossiter The American Presidency].The
principles in arriving at a decision. More than power of the President to keep the peace is not
that, having sworn to defend and uphold the limited merely to exercising the commander-in-
Constitution, the President has the obligation chief powers in times of emergency or to leading
under the Constitution to protect the people, the State against external and internal threats to
promote their welfare and advance the national its existence. The President is not only clothed
interest. It must be borne in mind that the with extraordinary powers in times of
Constitution, aside from being an allocation of emergency, but is also tasked with attending to
power is also a social contract whereby the the day-to-day problems of maintaining peace
people have surrendered their sovereign powers and order and ensuring domestic tranquility in
to the State for the common good. Hence, lest times when no foreign foe appears on the
the officers of the Government exercising the horizon. Wide discretion, within the bounds of
powers delegated by the people forget and the law, in fulfilling presidential duties in times of
servants of the people become rulers, the peace is not in any way diminished by the
Constitution reminds everyone that relative want of an emergency specified in the
"[s]overeignty resides in the people and all commander-in-chief provision. For in making the
government authority emanates from them." President commander-in-chief the enumeration
[Art. II, Sec. 1.] of powers that follow cannot be said to exclude
the President's exercising as Commander-in-
The resolution of the problem is made difficult Chief powers short of the calling of the armed
because the persons who seek to return to the forces, or suspending the privilege of the writ of
country are the deposed dictator and his family habeas corpus or declaring martial law, in order
at whose door the travails of the country are laid
 CONSTI LAW II ACJUCO FINALS 200

to keep the peace, and maintain public order and decide. But nonetheless there remain issues
security. beyond the Court's jurisdiction the determination
of which is exclusively for the President, for
That the President has the power under the Congress or for the people themselves through
Constitution to bar the Marcose's from returning a plebiscite or referendum. We cannot, for
has been recognized by memembers of the example, question the President's recognition of
Legislature, and is manifested by the Resolution a foreign government, no matter how premature
proposed in the House of Representatives and or improvident such action may appear. We
signed by 103 of its members urging the cannot set aside a presidential pardon though it
President to allow Mr. Marcos to return to the may appear to us that the beneficiary is totally
Philippines "as a genuine unselfish gesture for undeserving of the grant. Nor can we amend the
true national reconciliation and as irrevocable Constitution under the guise of resolving a
proof of our collective adherence to dispute brought before us because the power is
uncompromising respect for human rights under reserved to the people.
the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The There is nothing in the case before us that
Resolution does not question the President's precludes our determination thereof on the
power to bar the Marcoses from returning to the political question doctrine. The deliberations of
Philippines, rather, it appeals to the President's the Constitutional Commission cited by
sense of compassion to allow a man to come petitioners show that the framers intended to
home to die in his country. widen the scope of judicial review but they did
not intend courts of justice to settle all actual
What we are saying in effect is that the request controversies before them. When political
or demand of the Marcoses to be allowed to questions are involved, the Constitution limits
return to the Philippines cannot be considered in the determination to whether or not there has
the light solely of the constitutional provisions been a grave abuse of discretion amounting to
guaranteeing liberty of abode and the right to lack or excess of jurisdiction on the part of the
travel, subject to certain exceptions, or of case official whose action is being questioned. If
law which clearly never contemplated situations grave abuse is not established, the Court will not
even remotely similar to the present one. It must substitute its judgment for that of the official
be treated as a matter that is appropriately concerned and decide a matter which by its
addressed to those residual unstated powers of nature or by law is for the latter alone to decide.
the President which are implicit in and In this light, it would appear clear that the second
correlative to the paramount duty residing in that paragraph of Article VIII, Section 1 of the
office to safeguard and protect general welfare. Constitution, defining "judicial power," which
In that context, such request or demand should specifically empowers the courts to determine
submit to the exercise of a broader discretion on whether or not there has been a grave abuse of
the part of the President to determine whether it discretion on the part of any branch or
must be granted or denied. instrumentality of the government, incorporates
in the fundamental law the ruling in Lansang v.
The Extent of Review Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 4481 that:]
Under the Constitution, judicial power includes
the duty to determine whether or not there has Article VII of the [1935] Constitution vests in the
been a grave abuse of discretion amounting to Executive the power to suspend the privilege of
lack or excess of jurisdiction on the part of any the writ of habeas corpus under specified
branch or instrumentality of the Government." conditions. Pursuant to the principle of
[Art. VIII, Sec. 1] Given this wording, we cannot separation of powers underlying our system of
agree with the Solicitor General that the issue government, the Executive is supreme within his
constitutes a political question which is beyond own sphere. However, the separation of powers,
the jurisdiction of the Court to decide. under the Constitution, is not absolute. What is
more, it goes hand in hand with the system of
The present Constitution limits resort to the checks and balances, under which the Executive
political question doctrine and broadens the is supreme, as regards the suspension of the
scope of judicial inquiry into areas which the privilege, but only if and when he acts within the
Court, under previous constitutions, would have sphere alloted to him by the Basic Law, and the
normally left to the political departments to authority to determine whether or not he has so
 CONSTI LAW II ACJUCO FINALS 201

acted is vested in the Judicial Department, It will not do to argue that if the return of the
which, in this respect, is, in turn, constitutionally Marcoses to the Philippines will cause the
supreme. In the exercise of such authority, the escalation of violence against the State, that
function of the Court is merely to check — not to would be the time for the President to step in and
supplant the Executive, or to ascertain merely exercise the commander-in-chief powers
whether he has gone beyond the constitutional granted her by the Constitution to suppress or
limits of his jurisdiction, not to exercise the power stamp out such violence. The State, acting
vested in him or to determine the wisdom of his through the Government, is not precluded from
act [At 479-480.] taking pre- emptive action against threats to its
existence if, though still nascent they are
Accordingly, the question for the Court to perceived as apt to become serious and direct.
determine is whether or not there exist factual Protection of the people is the essence of the
bases for the President to conclude that it was in duty of government. The preservation of the
the national interest to bar the return of the State the fruition of the people's sovereignty is
Marcoses to the Philippines. If such postulates an obligation in the highest order. The President,
do exist, it cannot be said that she has acted, or sworn to preserve and defend the Constitution
acts, arbitrarily or that she has gravely abused and to see the faithful execution the laws, cannot
her discretion in deciding to bar their return. shirk from that responsibility.

We find that from the pleadings filed by the We cannot also lose sight of the fact that the
parties, from their oral arguments, and the facts country is only now beginning to recover from
revealed during the briefing in chambers by the the hardships brought about by the plunder of
Chief of Staff of the Armed Forces of the the economy attributed to the Marcoses and
Philippines and the National Security Adviser, their close associates and relatives, many of
wherein petitioners and respondents were whom are still here in the Philippines in a
represented, there exist factual bases for the position to destabilize the country, while the
President's decision.. Government has barely scratched the surface,
so to speak, in its efforts to recover the
The Court cannot close its eyes to present enormous wealth stashed away by the
realities and pretend that the country is not Marcoses in foreign jurisdictions. Then, We
besieged from within by a well-organized cannot ignore the continually increasing burden
communist insurgency, a separatist movement imposed on the economy by the excessive
in Mindanao, rightist conspiracies to grab power, foreign borrowing during the Marcos regime,
urban terrorism, the murder with impunity of which stifles and stagnates development and is
military men, police officers and civilian officials, one of the root causes of widespread poverty
to mention only a few. The documented history and all its attendant ills. The resulting precarious
of the efforts of the Marcose's and their followers state of our economy is of common knowledge
to destabilize the country, as earlier narrated in and is easily within the ambit of judicial notice.
this ponencia bolsters the conclusion that the
return of the Marcoses at this time would only The President has determined that the
exacerbate and intensify the violence directed destabilization caused by the return of the
against the State and instigate more chaos. Marcoses would wipe away the gains achieved
during the past few years and lead to total
As divergent and discordant forces, the enemies economic collapse. Given what is within our
of the State may be contained. The military individual and common knowledge of the state
establishment has given assurances that it could of the economy, we cannot argue with that
handle the threats posed by particular groups. determination.
But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial WHEREFORE, and it being our well-considered
final straw that would break the camel's back. opinion that the President did not act arbitrarily
With these before her, the President cannot be or with grave abuse of discretion in determining
said to have acted arbitrarily and capriciously that the return of former President Marcos and
and whimsically in determining that the return of his family at the present time and under present
the Marcoses poses a serious threat to the circumstances poses a serious threat to national
national interest and welfare and in prohibiting interest and welfare and in prohibiting their
their return. return to the Philippines, the instant petition is
hereby DISMISSED. SO ORDERED.
 CONSTI LAW II ACJUCO FINALS 202

deployment ban in the states of Iraq, Jordan,

G.R. No. 81958 June 30, 1988 Qatar, Canada, Hongkong, United States, Italy,
Norway, Austria, and Switzerland. * In
PHILIPPINE ASSOCIATION OF SERVICE submitting the validity of the challenged
EXPORTERS, INC., petitioner, "guidelines," the Solicitor General invokes the
vs. police power of the Philippine State.
HON. FRANKLIN M. DRILON as Secretary of
Labor and Employment, and TOMAS D. It is admitted that Department Order No. 1 is in
ACHACOSO, as Administrator of the the nature of a police power measure. The only
Philippine Overseas Employment question is whether or not it is valid under the
Administration, respondents. Constitution.

Gutierrez & Alo Law Offices for petitioner. The concept of police power is well-established
in this jurisdiction. It has been defined as the
"state authority to enact legislation that may
SARMIENTO, J.: interfere with personal liberty or property in order
to promote the general welfare." 5 As defined, it
The petitioner, Philippine Association of Service consists of (1) an imposition of restraint upon
Exporters, Inc. (PASEI, for short), a firm liberty or property, (2) in order to foster the
"engaged principally in the recruitment of Filipino common good. It is not capable of an exact
workers, male and female, for overseas definition but has been, purposely, veiled in
placement," 1 challenges the Constitutional general terms to underscore its all-
validity of Department Order No. 1, Series of comprehensive embrace.
1988, of the Department of Labor and
Employment, in the character of "GUIDELINES "Its scope, ever-expanding to meet the
GOVERNING THE TEMPORARY exigencies of the times, even to anticipate the
SUSPENSION OF DEPLOYMENT OF future where it could be done, provides enough
FILIPINO DOMESTIC AND HOUSEHOLD room for an efficient and flexible response to
WORKERS," in this petition for certiorari and conditions and circumstances thus assuring the
prohibition. Specifically, the measure is assailed greatest benefits." 6
for "discrimination against males or females;" 2
that it "does not apply to all Filipino workers but It finds no specific Constitutional grant for the
only to domestic helpers and females with plain reason that it does not owe its origin to the
similar skills;" 3 and that it is violative of the right Charter. Along with the taxing power and
to travel. It is held likewise to be an invalid eminent domain, it is inborn in the very fact of
exercise of the lawmaking power, police power statehood and sovereignty. It is a fundamental
being legislative, and not executive, in character. attribute of government that has enabled it to
perform the most vital functions of governance.
In its supplement to the petition, PASEI invokes Marshall, to whom the expression has been
Section 3, of Article XIII, of the Constitution, credited, 7 refers to it succinctly as the plenary
providing for worker participation "in policy and power of the State "to govern its citizens." 8
decision-making processes affecting their rights
and benefits as may be provided by law." 4 "The police power of the State ... is a power
Department Order No. 1, it is contended, was coextensive with self- protection, and it is not
passed in the absence of prior consultations. It inaptly termed the "law of overwhelming
is claimed, finally, to be in violation of the necessity." It may be said to be that inherent and
Charter's non-impairment clause, in addition to plenary power in the State which enables it to
the "great and irreparable injury" that PASEI prohibit all things hurtful to the comfort, safety,
members face should the Order be further and welfare of society." 9
enforced.
It constitutes an implied limitation on the Bill of
On May 25, 1988, the Solicitor General, on Rights. According to Fernando, it is "rooted in
behalf of the respondents Secretary of Labor the conception that men in organizing the state
and Administrator of the Philippine Overseas and imposing upon its government limitations to
Employment Administration, filed a Comment safeguard constitutional rights did not intend
informing the Court that on March 8, 1988, the thereby to enable an individual citizen or a group
respondent Labor Secretary lifted the of citizens to obstruct unreasonably the
 CONSTI LAW II ACJUCO FINALS 203

enactment of such salutary measures calculated are compelling motives for urgent Government
to ensure communal peace, safety, good order, action. As precisely the caretaker of
and welfare." 10 Significantly, the Bill of Rights Constitutional rights, the Court is called upon to
itself does not purport to be an absolute guaranty protect victims of exploitation. In fulfilling that
of individual rights and liberties "Even liberty duty, the Court sustains the Government's
itself, the greatest of all rights, is not unrestricted efforts.
license to act according to one's will." 11 It is
subject to the far more overriding demands and The same, however, cannot be said of our male
requirements of the greater number. workers. In the first place, there is no evidence
that, except perhaps for isolated instances, our
Notwithstanding its extensive sweep, police men abroad have been afflicted with an Identical
power is not without its own limitations. For all its predicament. The petitioner has proffered no
awesome consequences, it may not be argument that the Government should act
exercised arbitrarily or unreasonably. Otherwise, similarly with respect to male workers. The
and in that event, it defeats the purpose for Court, of course, is not impressing some male
which it is exercised, that is, to advance the chauvinistic notion that men are superior to
public good. Thus, when the power is used to women. What the Court is saying is that it was
further private interests at the expense of the largely a matter of evidence (that women
citizenry, there is a clear misuse of the power. 12 domestic workers are being ill-treated abroad in
massive instances) and not upon some fanciful
In the light of the foregoing, the petition must be or arbitrary yardstick that the Government acted
dismissed. in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this
As a general rule, official acts enjoy a presumed Court accepts. The Court cannot, however, say
vahdity. 13 In the absence of clear and the same thing as far as men are concerned.
convincing evidence to the contrary, the There is simply no evidence to justify such an
presumption logically stands. inference. Suffice it to state, then, that insofar as
classifications are concerned, this Court is
The petitioner has shown no satisfactory reason content that distinctions are borne by the
why the contested measure should be nullified. evidence. Discrimination in this case is justified.
There is no question that Department Order No.
1 applies only to "female contract workers," 14 As we have furthermore indicated, executive
but it does not thereby make an undue determinations are generally final on the Court.
discrimination between the sexes. It is well- Under a republican regime, it is the executive
settled that "equality before the law" under the branch that enforces policy. For their part, the
Constitution 15 does not import a perfect Identity courts decide, in the proper cases, whether that
of rights among all men and women. It admits of policy, or the manner by which it is implemented,
classifications, provided that (1) such agrees with the Constitution or the laws, but it is
classifications rest on substantial distinctions; not for them to question its wisdom. As a co-
(2) they are germane to the purposes of the law; equal body, the judiciary has great respect for
(3) they are not confined to existing conditions; determinations of the Chief Executive or his
and (4) they apply equally to all members of the subalterns, especially when the legislature itself
same class. 16 has specifically given them enough room on how
the law should be effectively enforced. In the
The Court is satisfied that the classification case at bar, there is no gainsaying the fact, and
made-the preference for female workers — rests the Court will deal with this at greater length
on substantial distinctions. shortly, that Department Order No. 1 implements
the rule-making powers granted by the Labor
As a matter of judicial notice, the Court is well Code. But what should be noted is the fact that
aware of the unhappy plight that has befallen our in spite of such a fiction of finality, the Court is on
female labor force abroad, especially domestic its own persuaded that prevailing conditions
servants, amid exploitative working conditions indeed call for a deployment ban.
marked by, in not a few cases, physical and
personal abuse. The sordid tales of There is likewise no doubt that such a
maltreatment suffered by migrant Filipina classification is germane to the purpose behind
workers, even rape and various forms of torture, the measure. Unquestionably, it is the avowed
confirmed by testimonies of returning workers, objective of Department Order No. 1 to "enhance
 CONSTI LAW II ACJUCO FINALS 204

the protection for Filipino female overseas that make a real difference as infancy, sex, and
workers" 17 this Court has no quarrel that in the stage of civilization of minority groups, the better
midst of the terrible mistreatment Filipina rule, it would seem, is to recognize its validity
workers have suffered abroad, a ban on only if the young, the women, and the cultural
deployment will be for their own good and minorities are singled out for favorable
welfare. treatment. There would be an element of
unreasonableness if on the contrary their status
The Order does not narrowly apply to existing that calls for the law ministering to their needs is
conditions. Rather, it is intended to apply made the basis of discriminatory legislation
indefinitely so long as those conditions exist. against them. If such be the case, it would be
This is clear from the Order itself ("Pending difficult to refute the assertion of denial of equal
review of the administrative and legal measures, protection." 23 In the case at bar, the assailed
in the Philippines and in the host countries . . Order clearly accords protection to certain
."18), meaning to say that should the authorities women workers, and not the contrary.)
arrive at a means impressed with a greater
degree of permanency, the ban shall be lifted. It is incorrect to say that Department Order No.
As a stop-gap measure, it is possessed of a 1 prescribes a total ban on overseas
necessary malleability, depending on the deployment. From scattered provisions of the
circumstances of each case. Accordingly, it Order, it is evident that such a total ban has hot
provides: been contemplated. We quote:

9. LIFTING OF SUSPENSION. — The Secretary 5. AUTHORIZED DEPLOYMENT-The

of Labor and Employment (DOLE) may, upon deployment of domestic helpers and workers of
recommendation of the Philippine Overseas similar skills defined herein to the following [sic]
Employment Administration (POEA), lift the are authorized under these guidelines and are
suspension in countries where there are: exempted from the suspension.

1. Bilateral agreements or understanding 5.1 Hirings by immediate members of the

with the Philippines, and/or, family of Heads of State and Government;

2. Existing mechanisms providing for 5.2 Hirings by Minister, Deputy Minister and
sufficient safeguards to ensure the welfare and the other senior government officials; and
protection of Filipino workers. 19
5.3 Hirings by senior officials of the
The Court finds, finally, the impugned guidelines diplomatic corps and duly accredited
to be applicable to all female domestic overseas international organizations.
workers. That it does not apply to "all Filipina
workers" 20 is not an argument for 5.4 Hirings by employers in countries with
unconstitutionality. Had the ban been given whom the Philippines have [sic] bilateral labor
universal applicability, then it would have been agreements or understanding.
unreasonable and arbitrary. For obvious
reasons, not all of them are similarly xxx xxx xxx
circumstanced. What the Constitution prohibits
is the singling out of a select person or group of 7. VACATIONING DOMESTIC HELPERS AND
persons within an existing class, to the prejudice WORKERS OF SIMILAR SKILLS--Vacationing
of such a person or group or resulting in an unfair domestic helpers and/or workers of similar skills
advantage to another person or group of shall be allowed to process with the POEA and
persons. To apply the ban, say exclusively to leave for worksite only if they are returning to the
workers deployed by A, but not to those recruited same employer to finish an existing or partially
by B, would obviously clash with the equal served employment contract. Those workers
protection clause of the Charter. It would be a returning to worksite to serve a new employer
classic case of what Chase refers to as a law shall be covered by the suspension and the
that "takes property from A and gives it to B." 21 provision of these guidelines.
It would be an unlawful invasion of property
rights and freedom of contract and needless to xxx xxx xxx
state, an invalid act. 22 (Fernando says: "Where
the classification is based on such distinctions
 CONSTI LAW II ACJUCO FINALS 205

9. LIFTING OF SUSPENSION-The the Constitution more paramountly is that such

Secretary of Labor and Employment (DOLE) an employment be above all, decent, just, and
may, upon recommendation of the Philippine humane. It is bad enough that the country has to
Overseas Employment Administration (POEA), send its sons and daughters to strange lands
lift the suspension in countries where there are: because it cannot satisfy their employment
needs at home. Under these circumstances, the
1. Bilateral agreements or understanding Government is duty-bound to insure that our
with the Philippines, and/or, toiling expatriates have adequate protection,
personally and economically, while away from
2. Existing mechanisms providing for home. In this case, the Government has
sufficient safeguards to ensure the welfare and evidence, an evidence the petitioner cannot
protection of Filipino workers. 24 seriously dispute, of the lack or inadequacy of
such protection, and as part of its duty, it has
xxx xxx xxx precisely ordered an indefinite ban on
deployment.
The consequence the deployment ban has on
the right to travel does not impair the right. The The Court finds furthermore that the
right to travel is subject, among other things, to Government has not indiscriminately made use
the requirements of "public safety," "as may be of its authority. It is not contested that it has in
provided by law." 25 Department Order No. 1 is fact removed the prohibition with respect to
a valid implementation of the Labor Code, in certain countries as manifested by the Solicitor
particular, its basic policy to "afford protection to General.
labor," 26 pursuant to the respondent
Department of Labor's rule-making authority The non-impairment clause of the Constitution,
vested in it by the Labor Code. 27 The petitioner invoked by the petitioner, must yield to the loftier
assumes that it is unreasonable simply because purposes targetted by the Government. 31
of its impact on the right to travel, but as we have Freedom of contract and enterprise, like all other
stated, the right itself is not absolute. The freedoms, is not free from restrictions, more so
disputed Order is a valid qualification thereto. in this jurisdiction, where laissez faire has never
been fully accepted as a controlling economic
Neither is there merit in the contention that way of life.
Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police This Court understands the grave implications
power is the domain of the legislature, but it does the questioned Order has on the business of
not mean that such an authority may not be recruitment. The concern of the Government,
lawfully delegated. As we have mentioned, the however, is not necessarily to maintain profits of
Labor Code itself vests the Department of Labor business firms. In the ordinary sequence of
and Employment with rulemaking powers in the events, it is profits that suffer as a result of
enforcement whereof. 28 Government regulation. The interest of the State
is to provide a decent living to its citizens. The
The petitioners's reliance on the Constitutional Government has convinced the Court in this
guaranty of worker participation "in policy and case that this is its intent. We do not find the
decision-making processes affecting their rights impugned Order to be tainted with a grave abuse
and benefits" 29 is not well-taken. The right of discretion to warrant the extraordinary relief
granted by this provision, again, must submit to prayed for.
the demands and necessities of the State's
power of regulation. WHEREFORE, the petition is DISMISSED. No
costs.
The Constitution declares that:
SO ORDERED.
Sec. 3. The State shall afford full protection to
labor, local and overseas, organized and
unorganized, and promote full employment and
equality of employment opportunities for all. 30

"Protection to labor" does not signify the

promotion of employment alone. What concerns