Beruflich Dokumente
Kultur Dokumente
"In the center is chalice, with grape vine and stalks of wheat as
border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are
for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually
issued and sold though the greater part thereof, to this day,
remains unsold. The further sale of the stamps is sought to be
prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not
the proper legal remedy in the instant case, although he admits
that the writ may properly restrain ministerial functions. While,
generally, prohibition as an extraordinary legal writ will not issue
to restrain or control the performance of other than judicial or
quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may
issue to . . . inferior tribunals, corporations, boards, or persons,
whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation,
board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.)
The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and
include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the
Constitution is a fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is that the writ of
prohibition is not confined exclusively to courts or tribunals to keep
them within the limits of their own jurisdiction and to prevent
them from encroaching upon the jurisdiction of other tribunals, but
will issue, in appropriate cases, to an officer or person whose acts
are without or in excess of his authority. Not infrequently, "the writ
is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an
oppressive or vindictive manner, or a multiplicity of actions."
(Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation
of the Constitution by the respondent in issuing and selling postage
stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the
respondent is violative of the provisions of section 23, subsection 3,
Article VI, of the Constitution of the Philippines, which provides as
follows:
No public money or property shall ever be appropriated,
applied, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, secretarian,
institution, or system of religion, or for the use, benefit, or
support of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the
principle of separation of church and state. Without the necessity of
adverting to the historical background of this principle in our
country, it is sufficient to say that our history, not to speak of the
history of mankind, has taught us that the union of church and
state is prejudicial to both, for ocassions might arise when the
estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of
church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the
United States and Spain of December 10, 1898, reiterated in
President McKinley's Instructions of the Philippine Commission,
Church, was not the aim and purpose of the Government. We are of
the opinion that the Government should not be embarassed in its
activities simply because of incidental results, more or less religious
in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere
incidental results not contemplated. (Vide Bradfield vs. Roberts,
175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for
the petitioner to maintain inviolate the complete separation of
church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene
of religious intolerance and prescription, care should be taken that
at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect or
institution. But, upon very serious reflection, examination of Act
No. 4052, and scrutiny of the attending circumstances, we have
come to the conclusion that there has been no constitutional
infraction in the case at bar, Act No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and
Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made
use of a poor judgment in issuing and selling the postage stamps in
question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the
unconstitutionality of the step taken, a gap exists which is yet to be
filled to justify the court in setting aside the official act assailed as
coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without
pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and
Concepcion, JJ., concur.
1976 but he was not able to attend those sessions because he was
working with a construction company based at Ipil, Ormoc City
(Par. 2[d] Exh. 1).
Maago's absence from the sessions of the barangay council did not
render the said resolutions void. There was a quorum when the said
resolutions were passed.
The other contention of the petitioners is that the resolutions
contravene the constitutional provisions that "no law shall be made
respecting an establishment of religion" and that "no public money
or property shall ever be appropriated, applied, paid, or used,
directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion,
or for the use, benefit, or support of any priest, preacher, minister,
or other religious teacher or dignitary as such. except when such
priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or
leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII,
Constitution).
That contention is glaringly devoid of merit. The questioned
resolutions do not directly or indirectly establish any religion, nor
abridge religious liberty, nor appropriate public money or property
for the benefit of any sect, priest or clergyman. The image was
purchased with private funds, not with tax money. The construction
of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the
barangay council favored the Catholic religion by using the funds
raised by solicitations and donations for the purchase of the patron
saint's wooden image and making the image available to the
Catholic church.
The preposterousness of that argument is rendered more evident by
the fact that counsel advanced that argument in behalf of the
petitioner, Father Osmea the parish priest.
The wooden image was purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San
Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the
barrio residents. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in the
church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio, then any activity intended to
facilitate the worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious
affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of the
lives of the masses.
The barangay council designated a layman as the custodian of the
wooden image in order to forestall any suspicion that it is favoring
the Catholic church. A more practical reason for that arrangement
would be that the image, if placed in a layman's custody, could
easily be made available to any family desiring to borrow the image
in connection with prayers and novenas.
by failing to uphold the exercises it was interfering in the freeexercise rights of religious students and their parents. While the
Free Exercise Clause clearly prohibits the use of state action to
deny the rights of free exercise to anyone, the court declared, it
has never meant that a majority could use the machinery of the
State to practice its beliefs.
Concurring opinions were filed by Justice Arthur J. Goldberg,
joined by Justice John Marshall Harlan, and by Justices William J.
Brennan, Jr., and William O. Douglas. JusticePotter Stewart filed a
dissenting opinion in which he argued that the record before the
court was insufficiently developed to allow it to conclude that the
students were coerced into participating in the exercises in
violation of the establishment clause.
schools, because the state might well abstain from aiding a profitmaking private enterprise.
As Jackson noted, the only reason for refusing to help children
going to for-profit private schools is a desire not to aid those schools
in their ventures - but this automatically means that giving
reimbursements to children going to parochial schools means that
the government is helping them.
Significance
This case reinforced the precedent of government money financing
portions of religious, sectarian education by having those funds
applied to activities other than direct religious education.
The focus of the Court decision was mostly the fact that the law had
a secular purpose:
The express purpose of 701 was stated by the New York Legislature
to be furtherance of the educational opportunities available to the
young. Appellants have shown us nothing about the necessary
effects of the statute that is contrary to its stated purpose. The law
this textbook case. The textbook goes to the very heart of education
in a parochial school. It is the chief, although not solitary,
instrumentality for propagating a particular religious creed or
faith. How can we possibly approve such state aid to a religion? A
parochial school textbook may contain many, many more seeds of
creed and dogma than a prayer. Yet we struck down in Engel v.
Vitale, an official New York prayer for its public schools, even
though it was not plainly denominational. For we emphasized the
violence done the Establishment Clause when the power was given
religious-political groups "to write their own prayers into law." That
risk is compounded here by giving parochial schools the initiative in
selecting the textbooks they desire to be furnished at public
expense.
Black concluded his dissent by arguing that, in order for the
separation of church and state to have force and meaning, it must
not be whittled away bit by bit as he saw happening with this
decision. He found substantial social value in maintaining the wall
of separation, because it prevents minority religions from being
discriminated against by a religious majority.
I still subscribe to the belief that tax-raised funds cannot
constitutionally be used to support religious schools, buy their
school books, erect their buildings, pay their teachers, or pay any
other of their maintenance expenses, even to the extent of one
penny. The First Amendment's prohibition against governmental
establishment of religion was written on the assumption that state
aid to religion and religious schools generates discord, disharmony,
hatred, and strife among our people, and that any government that
supplies such aids is to that extent a tyranny. And I still believe
that the only way to protect minority religious groups from majority
groups in this country is to keep the wall of separation between
church and state high and impregnable as the First and Fourteenth
Amendments provide. The Court's affirmance here bodes nothing
but evil to religious peace in this country.
Significance
Constitutional Issues
This case reinforced the precedent of government money financing
portions of religious, sectarian education by having those funds
applied to activities other than direct religious education.
Historical Background
Arguments
Tilton v. Richardson
Tilton v. Richardson is a landmark 1971 decision of the U.S.
Supreme Court upholding a congressional grant program that made
federal funds available to private religious colleges for constructing
buildings. In light of Tiltons having expanded the limits of
governmental aid to religiously affiliated colleges and universities,
this entry reviews the Courts rationale and considers the cases
implications.
Facts of the Case
COUNTY
OF
ALLEGHENY
PITTSBURGH CHAPTER (1989)
V.
ACLU
GREATER
Background Information
This case looked at the constitutionality of two holiday displays in
downtown Pittsburgh. One was a creche standing on the "grand
staircase" of the Allegheny County Courthouse, a very prominent
position in the courthouse and readily visible by all who entered.
The creche included figures of Joseph, Mary, Jesus, animals,
shepherds, and an angel bearing a huge banner with the words
"Gloria in Excelsis Deo!" ("Glory to God in the Highest")
emblazoned upon it. Next to it was a sign stating "This Display
Donated by the Holy Name Society" (a Catholic organization).
The other display was a block away in a building jointly owned by
both the city and the county. It was an 18-foot tall Hanukkah
menorah donated by a group of Lubavitcher Hasidim (an ultraorthodox branch of Judaism). With the menorah was a 45-foot tall
Christmas tree, at the base of which was a sign stating "Salute to
Liberty."
Some local residents, supported by the ACLU, filed suit claiming
that both displays violated the Establishment Clause. A Court of
Appeals agreed and ruled that both displays violated of the First
Amendment because they endorsed religion.
Court Decision
Arguments were made on February 22, 1989. On July 3, 1989, the
court ruled 5 to 4 (to strike) and 6 to 3 (to uphold). This was a
deeply and unusually fragmented Court Decision, but in the final
analysis the Court ruled that while the creche was
unconstitutional, the menorah display was not.
Although in Lynch v. Donnelly the Court used the three-part
Lemon test to allow a city in Rhode Island to display a creche as
part of a holiday display, the same did not hold here because the
Pittsburgh display was not used in conjunction with seasonal
decorations. Lynch had established what came to be called the
"plastic reindeer rule" of secular context which the creche failed.
Due to this independence along with the prominent place which the
creche occupied (thus signaling government endorsement), the
display was determined by Justice Blackmun in his plurality
opinion to have a specific religious purpose. The fact that the creche
was created by a private organization did not eliminate the
apparent endorsement by the government of the display. Moreover,
the placement of the display in such a prominent position
emphasized the message of supporting religion.The creche scene
stood on the grand staircase of a courthouse alone. The Supreme
Court said:
...the creche sits on the Grand Staircase, the "main" and "most
beautiful part" of the building that is the seat of county
government. No viewer could reasonably think that it occupies this
location without the support and approval of the government.
Thus, by permitting the display of the creche in this particular
physical setting, the county sends an unmistakable message that it
supports and promotes the Christian praise to God that is the
creche's religious message... The Establishment Clause does not
Significance
This Court's decision allowed the government to pay public
employees to work in parochial schools so long as their presence
had no impact upon the religious environemnt itself. The job
performed by the interpreter was not religious even though the
person would be translating religiously based information. The
Supreme Court also found that this assistance did not relieve the
religious school of a burden that it otherwise would have borne
independently.
This Court Decision was instrumental in Sandra Day O'Connor's
ruling in the Agnostini v. Felton, in which the Court allowed public
school teachers to tutor private school students in their private
schools, even if the schools were primarily religious in nature.
On a personal note, I'd like to add that I find it odd that parents
who choose to reject the services of a public school should want to
take with them some of those services. If a school is incapable of
providing a proper education for their child, why would they choose
to pay extramoney to send their child there?
Sec. 16. The rights of the people and their organizations to effective
and reasonable participation at all levels of social, political, and
economic decision-making shall not be abridged. The State shall,
by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter
haste and without even consulting Muslim peoples organizations
like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697
(EO 697) to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs,
customs, traditions, and institutions.[8] OMA deals with the
societal, legal, political and economic concerns of the Muslim
community as a national cultural community and not as a
religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that
OMA does not intrude into purely religious matters lest it violate
the non-establishment clause and the free exercise of religion
provision found in Article III, Section 5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has consistently
affirmed this preferred status, well aware that it is "designed to
protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and
to live as he believes he ought to live, consistent with the liberty of
others and with the common good.[10]
Without doubt, classifying a food product as halal is a
religious function because the standards used are drawn from the
Quran and Islamic beliefs. By giving OMA the exclusive power to
classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret
for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its
own interpretation of the Quran and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity,
the Solicitor General argues that the freedom of religion is
subservient to the police power of the State. By delegating to OMA
the authority to issue halal certifications, the government allegedly
seeks to protect and promote the muslim Filipinos right to health,
and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement
of religious freedom.[11] If the government fails to show the
seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the
government to deprive Muslim organizations, like herein petitioner,
of their religious right to classify a product as halal, even on the
premise that the health of Muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal
certifications. The protection and promotion of the Muslim
Filipinos right to health are already provided for in existing laws
and ministered to by government agencies charged with ensuring
that food products released in the market are fit for human
[1]
According to the petitioner, RISEAP is a federation of Muslim organizations in nonMuslim countries where Muslims are minorities in Asia and the Pacific.
[2]
Halal is a Muslim term that means lawful food, things, manners and actions allowed
by God for mankind and enjoined upon the believers (Petition, p. 6; Rollo, p.
8). It is a term that means to slaughter for food (WEBSTERS THIRD
INTERNATIONAL DICTIONARY, 1986 Ed., p. 1021).
[3]
[4]
The body of Islamic custom and practice based on Mohammads words and deeds
(WEBSTERS THIRD INTERNATIONAL DICTIONARY, 1986 Ed., p.
2292).
EXECUTIVE ORDER NO. 46
[5]
xxx
xxx
WHEREAS, the establishment of a Philippine Halal Certification Scheme for food and
non-food products will contribute toward:
The establishment of a national standards and certification scheme for halal food and
non-food products and a national standards and accreditation scheme for
establishments;
The opening of new markets and the development of strong consumer awareness of,
and confidence in, Philippine halal food and non-food products;
The development and promotion of Philippine industries through the increase in the
volume and value of Philippine halal food and non-food exports; and
The development of Philippine products which comply with halal standards established
in accordance with Shariah Law and which are highly competitive and
acceptable to the Muslim Market;
xxx
xxx
xxx
Formulate policies, guidelines and developmental goals within the context of the
Philippine Halal Certification Scheme;
Without limiting the scope of the above paragraph, the act or practice of a seller or
supplier is deceptive when it represents that:
Plan, facilitate, and supervise the implementation and monitoring of components and
developmental activities relating to the Philippine Halal Certification
Scheme;
a)
b)
c)
d)
e)
Adopt measures to ensure the success of the Philippine Halal Certification Scheme.
f)
SECTION 3. Training and Research. A halal training and research facility to support
the Philippine Halal Certification Scheme shall be established. Said facility
shall be operated under the auspices of the Office on Muslim Affairs.
g)
h)
a specific price advantage of a consumer product exists when in fact it does not;
i)
the sales act or practice involves or does not involve a warranty, a disclaimer of
warranties, particular warranty terms or other rights, remedies or
obligations if the indication is false; and
j)
Ensure strict implementation of and compliance with halal standards and guidelines;
Coordinate with appropriate agencies, both at local and international level as may be
required, to ensure the enforcement of the Philippine Halal Certification
Scheme and the acceptance of Philippine products certified under the
Philippine Halal Certification Scheme;
[15]
SECTION 4. Funding. Funds necessary for the initial halal certification and
regulatory functions of the Office on Muslim Affairs shall be sourced from
the Office of the President, upon submission by the Office on Muslim Affairs
of its work and financial plan. Subsequent annual funding requirement
shall be sourced from the General Appropriations Act and from the income
generated by the Office on Muslim Affairs.
SECTION 5. Rules and Regulations; Sanctions.- The Office on Muslim Affairs shall
formulate rules and regulations, and impose sanctions as may be allowed by
law to ensure compliance therewith, for the successful implementation of
the Philippine Halal Certification Scheme; Provided, that the Office on
Muslim Affairs shall consider the pertinent provisions of Republic Act No.
4109 in the formulation and eventual implementation of said rules and
regulations.
SECTION 6. Repealing Clause. All executive issuances, orders, rules and regulations
which are inconsistent with any provision of this Executive Order are
hereby revoked, amended or modified accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect fifteen (15) days after
its publication in two (2) newspapers of national circulation.
City of Manila, October 26, 2001.
By the President:
ALBERTO ROMULO (Sgd.)
Executive Secretary
[6]
[7]
An Act to Convert the Division of Standards Under the Bureau of Commerce into A
Bureau of Standards, to Provide for the Standardization and/or Inspection
of Products and Imports of the Philippines and for other Purposes.
Section 6, Article II of the 1987 Philippine Constitution provides that:
Section 1, EO 697.
[9]
[10]
Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 [1996] citing Victoriano vs.
Elizalde Rope Workers Union, 59 SCRA 54 [1974].
[16]
[17]
b)
prescribe or specify by any means the manner in which such products are
packaged or labeled; or
c)
[11]
b)
[12]
Article 2, RA 7394.
c)
[13]
d)
[14]
e)
f)
g)
h)
The following may be required by the concerned department in accordance with the
rules and regulations they will promulgate under authority of this Act:
a)
b)
c)
warning of toxicity;
d)
e)
ARTICLE 81. Price Tag Requirement. It shall be unlawful to offer any consumer
product for retail sale to the public without an appropriate price tag, label
or marking publicly displayed to indicate the price of each article and said
products shall not be sold at a price higher than that stated therein and
without discrimination to all buyers: Provided, That lumber sold, displayed
or offered for sale to the public shall be tagged or labeled by indicating
thereon the price and the corresponding official name of the
wood: Provided, further, That if consumer products for sale are too small or
the nature of which makes it impractical to place a price tag thereon price
list placed at the nearest point where the products are displayed indicating
the retail price of the same may suffice.
ARTICLE 82. Manner of Placing Price Tags. Price tags, labels or markings must be
written clearly, indicating the price of the consumer product per unit in
pesos and centavos.
ARTICLE 83. Regulations for Price Tag Placement. The concerned department
shall prescribe rules and regulations for the visible placement of price tags
for specific consumer products and services. There shall be no erasures or
alterations of any sort of price tags, labels or markings.
ARTICLE 84. Additional Labeling Requirements for Food. The following additional
labeling requirements shall be imposed by the concerned department for
food:
a)
The above requirements shall form an integral part of the label without danger of
being erased or detached under ordinary handling of the product.
b)
ARTICLE 78. Philippine Product Standard Mark. The label may contain the
Philippine Product Standard Mark if it is certified to have passed the
consumer product standard prescribed by the concerned department.
c)
d)
whether the ingredients used are natural or synthetic, as the case may be;
e)
b)
regulate the placement upon any package containing any product or upon any
label affixed to such product of any printed matter stating or representing
by implication that such product is offered for retail at a price lower than
the ordinary and customary retail price or that a price advantage is
accorded to purchases thereof by reason of the size of the package or the
quantity of its contents;
c)
b)
1)
2)
3)
4)
b)
c)
if it is an imitation of another food, unless its label bears in type of uniform size
and prominence, the word "imitation" and, immediately thereafter, the
name of the food imitated;
d)
e)
f)
g)
1)
2)
its labels bears the name of the food specified in the definition or standards,
and insofar as may be required by such regulations, the common names of
optional ingredients other than spices, flavoring and coloring, present in
such food;
h)
1)
2)
i)
if it is not subject to the provisions of paragraph (g) of this Article unless its
label bears:
1)
2)
j)
k)
(1)
(2)
(3)
Those rights may be the subject of litigation in a civil court, and the
courts have jurisdiction to determine controverted claims to the
title, use, or possession of church property. (Ibid., p.466)
Ergo, this Court is of the opinion and so holds that the instant case
does not involve a violation and/or protection of a civil or property
rights in order for the court a quo to acquire jurisdiction in the
instant case.[3]
Petitioners appealed from the above decision but their petition
was denied. Their motion for reconsideration was likewise denied,
hence, this appeal.
The only issue to be resolved in this case is whether or not the
courts have jurisdiction to hear a case involving the
expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987
Constitution specifically provides that:
Sec. 5. No law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
In our jurisdiction, we hold the Church and the State to be
separate and distinct from each other. Give to Ceasar what is
Ceasars and to God what is Gods. We have, however, observed as
early as 1928 that:
upon the examination of the decisions it will be readily apparent
that cases involving questions relative to ecclesiastical rights have
always received the profoundest attention from the courts, not only
because of their inherent interest, but because of the far reaching
effects of the decisions in human society. [However,] courts have
learned the lesson of conservatism in dealing with such matters, it
having been found that, in a form of government where the complete
separation of civil and ecclesiastical authority is insisted upon, the
civil courts must not allow themselves to intrude unduly in matters
of an ecclesiastical nature.[4] (italics ours)
We agree with the Court of Appeals that the
expulsion/excommunication
of
members
of
a
religious
institution/organization is a matter best left to the discretion of the
officials, and the laws and canons, of said institution/organization.
It is not for the courts to exercise control over church authorities in
the performance of their discretionary and official functions.
Rather, it is for the members of religious institutions/organizations
to conform to just church regulations. In the words of Justice
Samuel F. Miller[5]:
all who unite themselves to an ecclesiastical body do so with an
implied consent to submit to the Church government and they are
bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,[6] we
enunciated the doctrine that in disputes involving religious
Rollo, p. 73.
Rollo, p. 129.
[3] Penned by Associate Justice Bennie A. Adefuin-de la Cruz and concurred
in by Associate Justices Cancio C. Garcia (now Associate Justice of
the Supreme Court) and Renato C. Dacudao, Rollo, p. 82.
[4] Gonzales v. R. Archbishop, 51 Phil. 420, 434 (1928).
[5] In Watson v. Jones, 13 Wall. 679, 723; 20 Law ed., 666, quoted in
Gonzales v. R. Archbishop, supra.
[6] 96 Phil. 417 (1955).
[7] Bernas, J., The 1987 Constitution of the Republic of the Philippines, A
Commentary, 1996 ed., p. 322.
[1]
[2]
Fifthly, the Union contended that Republic Act No. 3350, violates
the "equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni
Cristo", it has granted said members undue advantages over their
fellow workers, for while the Act exempts them from union
obligation and liability, it nevertheless entitles them at the same
time to the enjoyment of all concessions, benefits and other
emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates
the constitutional provision regarding the promotion of social
justice. 11
Both the Constitution and Republic Act No. 875 recognize freedom
of association. Section 1 (6) of Article III of the Constitution of 1935,
as well as Section 7 of Article IV of the Constitution of 1973,
provide that the right to form associations or societies for purposes
not contrary to law shall not be abridged. Section 3 of Republic Act
No. 875 provides that employees shall have the right to selforganization and to form, join of assist labor organizations of their
own choosing for the purpose of collective bargaining and to engage
in concerted activities for the purpose of collective bargaining and
other mutual aid or protection. What the Constitution and the
Industrial Peace Act recognize and guarantee is the "right" to form
or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the
nature and contents of a "right", it can be safely said that whatever
theory one subscribes to, a right comprehends at least two broad
notions, namely: first, liberty or freedom, i.e., the absence of legal
restraint, whereby an employee may act for himself without being
prevented by law; and second, power, whereby an employee may, as
he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he
should join or not an association; and should he choose to join, he
himself makes up his mind as to which association he would join;
and even after he has joined, he still retains the liberty and the
power to leave and cancel his membership with said organization at
any time. 20 It is clear, therefore, that the right to join a union
includes the right to abstain from joining any union. 21 Inasmuch as
what both the Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the "right" to join
associations of his choice, it would be absurd to say that the law
also imposes, in the same breath, upon the employee the duty to
join associations. The law does not enjoin an employee to sign up
with any association.
not from its effects on a particular case. 70 The essential basis for
the exercise of power, and not a mere incidental result arising from
its exertion, is the criterion by which the validity of a statute is to
be measured. 71
II. We now pass on the second assignment of error, in support of
which the Union argued that the decision of the trial court ordering
the Union to pay P500 for attorney's fees directly contravenes
Section 24 of Republic Act No. 875, for the instant action involves
an industrial dispute wherein the Union was a party, and said
Union merely acted in the exercise of its rights under the union
shop provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil
Code; that, furthermore, Appellee was never actually dismissed by
the defendant Company and did not therefore suffer any damage at
all . 72
In refuting appellant Union's arguments, Appellee claimed that in
the instant case there was really no industrial dispute involved in
the attempt to compel Appellee to maintain its membership in the
union under pain of dismissal, and that the Union, by its act,
inflicted intentional harm on Appellee; that since Appellee was
compelled to institute an action to protect his right to work,
appellant could legally be ordered to pay attorney's fees under
Articles 1704 and 2208 of the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875 which
is relied upon by appellant provides that:
No suit, action or other proceedings shall be
maintainable in any court against a labor
organization or any officer or member thereof for
any act done by or on behalf of such
organization in furtherance of an industrial
dispute to which it is a party, on the ground only
that such act induces some other person to break
a contract of employment or that it is in restraint
of trade or interferes with the trade, business or
employment of some other person or with the
right of some other person to dispose of his capital
or labor. (Emphasis supplied)
That there was a labor dispute in the instant case cannot be
disputed for appellant sought the discharge of respondent by virtue
of the closed shop agreement and under Section 2 (j) of Republic Act
No. 875 a question involving tenure of employment is included in
the term "labor dispute". 74 The discharge or the act of seeking it is
the labor dispute itself. It being the labor dispute itself, that very
same act of the Union in asking the employer to dismiss Appellee
cannot be "an act done ... in furtherance of an industrial
dispute". The mere fact that appellant is a labor union does not
necessarily mean that all its acts are in furtherance of an industrial
dispute. 75 Appellant Union, therefore, cannot invoke in its favor
Section 24 of Republic Act No. 875. This case is not intertwined
with any unfair labor practice case existing at the time when
Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union,
serve as its shield. The article provides that attorney's fees and
expenses of litigation may be awarded "when the defendant's act or
omission has compelled the plaintiff ... to incur expenses to protect
his interest"; and "in any other case where the court deems it just
and equitable that attorney's fees and expenses of litigation should
be recovered". In the instant case, it cannot be gainsaid that
appellant Union's act in demanding Appellee's dismissal caused
Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic
Act No. 3350 is free from the constitutional infirmities imputed to it
was demonstrated in a manner wellnigh conclusive in the learned,
scholarly, and comprehensive opinion so typical of the efforts of
the ponente, Justice Zaldivar. Like the rest of my brethren, I concur
fully. Considering moreover, the detailed attention paid to each and
every objection raised as to its validity and the clarity and
persuasiveness with which it was shown to be devoid of support in
authoritative doctrines, it would appear that the last word has been
written on this particular subject. Nonetheless, I deem it proper to
submit this brief expression of my views on the transcendent
character of religious freedom 1 and its primacy even as against the
claims of protection to labor, 2 also one of the fundamental
principles of the Constitution.
1. Religious freedom is identified with the liberty every individual
possesses to worship or not a Supreme Being, and if a devotee of
any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that
"profession of faith to an active power that binds and elevates man
to his Creator ...." 3 The choice of what a man wishes to believe in is
his and his alone. That is a domain left untouched, where intrusion
is not allowed, a citadel to which the law is denied entry, whatever
be his thoughts or hopes. In that sphere, what he wills reigns
supreme. The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation. No matter.
There is no requirement as to its conformity to what has found
acceptance. It suffices that for him such a concept holds undisputed
sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity
that attaches to every human being to deprive him of such an
attribute. The "fixed star on our constitutional constellation," to
borrow the felicitous phrase of Justice Jackson, is that no official,
not excluding the highest, has it in his power to prescribe what
shall be orthodox in matters of conscience or to mundane affairs,
for that matter.
Gerona v. Secretary of Education 4 speaks similarly. In the
language of its ponente, Justice Montemayor: "The realm of belief
Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic
Act No. 3350 is free from the constitutional infirmities imputed to it
was demonstrated in a manner wellnigh conclusive in the learned,
scholarly, and comprehensive opinion so typical of the efforts of
the ponente, Justice Zaldivar. Like the rest of my brethren, I concur
fully. Considering moreover, the detailed attention paid to each and
every objection raised as to its validity and the clarity and
persuasiveness with which it was shown to be devoid of support in
authoritative doctrines, it would appear that the last word has been
written on this particular subject. Nonetheless, I deem it proper to
submit this brief expression of my views on the transcendent
character of religious freedom 1 and its primacy even as against the
claims of protection to labor, 2 also one of the fundamental
principles of the Constitution.
1. Religious freedom is identified with the liberty every individual
possesses to worship or not a Supreme Being, and if a devotee of
any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that
"profession of faith to an active power that binds and elevates man
to his Creator ...." 3 The choice of what a man wishes to believe in is
his and his alone. That is a domain left untouched, where intrusion
is not allowed, a citadel to which the law is denied entry, whatever
be his thoughts or hopes. In that sphere, what he wills reigns
supreme. The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation. No matter.
There is no requirement as to its conformity to what has found
acceptance. It suffices that for him such a concept holds undisputed
sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity
that attaches to every human being to deprive him of such an
attribute. The "fixed star on our constitutional constellation," to
Court Decision
With Justice Roberts writing the majority opinion, the Supreme
Court found that statutes requiring a license to solicit for religious
purposes constituted a prior restraint upon speech and gave the
government too much power in determining which groups were
permitted to solicit. The officer who issued licences for solicitation
was authorized to inquire whether the applicant did have a
religious cause and to decline a license if in his view the cause was
not religious:
Such a censorship of religion as the means of determining its right
to survive is a denial of liberty protected by the First Amendment
and included in the liberty which is within the protection of the
Fourteenth.
Even if an error by the secretary can be corrected by the courts, the
process still serves as an unconstitutional prior restraint:
To condition the solicitation of aid for the perpetuation of religious
views or systems upon a license, the grant of which rests in the
exercise of a determination by state authority as to what is a
religious cause, is to lay a forbidden burden upon the exercise of
liberty protected by the Constitution.
The breach of the peace accusation arose because the three accosted
two Catholics in a strongly Catholic neighborhood and played them
a phonograph record which, in their opinion, insulted the Christian
religion in general and the Catholic Church in particular. The
Court voided this conviction under the clear-and-present danger
test, ruling that the interest sought to be upheld by the State did
not justify the suppression of religious views that simply annoyed
others.
According to the Court, the Cantwells simply did not pose a threat
to public order merely by spreading their message:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point
of view, the pleader, as we know, at times, resorts to exaggeration,
to vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation
have ordained in the light of history, that, in spite of the
probabilities of excesses and abuses, these liberties are in the long
view, essential to enlightened opinion and right conduct on the part
of the citizens of a democracy.
Significance
This judgement prohibited governments from creating special
requirements for people spreading religious ideas and sharing a
message in an unfriendly environment because such speech acts do
not automtically represent a "threat to public order."
This decision was also notable because it was the first time that the
Court had incorporated the Free Exercise Clause into the
Fourteenth Amdendment - since that point, it always has.
Amount of Sales
P1,244.21
2,206.85
1,950.38
2,235.99
3,256.04
13,241.07
15,774.55
14,654.13
12,590.94
11,143.90
14,715.26
38,333.83
16,179.90
23,975.10
17,802.08
16,640.79
15,961.38
18,562.46
21,816.32
25,004.55
45,287.92
37,841.21
29,103.98
20,181.10
22,968.91
23,002.65
17,626.96
17,921.01
24,180.72
29,516.21
plaintiff's contention that it never makes any profit from the sale of
its bible, is evidently untenable.
After hearing the Court rendered judgment, the last part of which
is as follows:
xxx
xxx
xxx
xxx
Charter and section 18 (o) of the new seemingly differ in the way
the legislative intent was expressed, yet their meaning is
practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances
Nos. 2529 and 3000, as amended, are to be considered as still in full
force and effect uninterruptedly up to the present.
Often the legislature, instead of simply amending the preexisting statute, will repeal the old statute in its entirety
and by the same enactment re-enact all or certain portions
of the preexisting law. Of course, the problem created by
this sort of legislative action involves mainly the effect of
the repeal upon rights and liabilities which accrued under
the original statute. Are those rights and liabilities
destroyed or preserved? The authorities are divided as to
the effect of simultaneous repeals and re-enactments.
Some adhere to the view that the rights and liabilities
accrued under the repealed act are destroyed, since the
statutes from which they sprang are actually terminated,
even though for only a very short period of time. Others,
and they seem to be in the majority, refuse to accept this
view of the situation, and consequently maintain that all
rights an liabilities which have accrued under the original
statute are preserved and may be enforced, since the reenactment neutralizes the repeal, therefore, continuing the
law in force without interruption. (Crawford-Statutory
Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No,
409 introduces a new and wider concept of taxation and is different
from the provisions of Section 2444(m-2) that the former cannot be
considered as a substantial re-enactment of the provisions of the
latter. We have quoted above the provisions of section 2444(m-2) of
the Revised Administrative Code and We shall now copy hereunder
the provisions of Section 18, subdivision (o) of Republic Act No. 409,
which reads as follows:
(o) To tax and fix the license fee on dealers in general
merchandise, including importers and indentors, except
those dealers who may be expressly subject to the payment
of some other municipal tax under the provisions of this
section.
Dealers in general merchandise shall be classified as (a)
wholesale dealers and (b) retail dealers. For purposes of
the tax on retail dealers, general merchandise shall be
classified into four main classes: namely (1) luxury articles,
(2) semi-luxury articles, (3) essential commodities, and (4)
miscellaneous articles. A separate license shall be
prescribed for each class but where commodities of
different classes are sold in the same establishment, it
shall not be compulsory for the owner to secure more than
one license if he pays the higher or highest rate of tax
prescribed by ordinance. Wholesale dealers shall pay the
license tax as such, as may be provided by ordinance.
For purposes of this section, the term "General
merchandise" shall include poultry and livestock,
agricultural products, fish and other allied products.
The only essential difference that We find between these two
provisions that may have any bearing on the case at bar, is that,
while subsection (m-2) prescribes that the combined total tax of any
dealer or manufacturer, or both, enumerated under subsections (m1) and (m-2), whether dealing in one or all of the articles mentioned
Angelo,
Labrador,
DECISION
GRIO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and
Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members or a religious
sect known as Jehovah's Witnesses may be expelled from school
(both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by
whose
population
predominantly Filipino.
is
English Version
I
love
the
Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to
be, strong, happy and useful.
In return, I will heed the counsel
of
my
parents;
I will obey the rules of my school;
I will perform the duties of a
patriotic, law-abiding citizen;
I will serve my country
unselfishly
and
faithfully;
I will be a true, Filipino in
thought, in word, in deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute
the flag, sing the national anthem, and recite the patriotic pledge
for they believe that those are "acts of worship" or "religious
devotion" (p. 10, Rollo) which they "cannot conscientiously give . . .
to anyone or anything except God" (p. 8, Rollo). They feel bound by
the
Bible's
command
to
"guard
ourselves
from
idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an
image or idol representing the State (p. 10, Rollo). They think the
action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on the State's power
and invades the sphere of the intellect and spirit which the
Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children
of Jehovah's Witnesses may be expelled from school for
disobedience of R.A. No. 1265 and Department Order No. 8, series
of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of
Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs.
Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:
The flag is not an image but a symbol of the
Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution
guarantee and protect. Under a system of
complete separation of church and state in the
government, the flag is utterly devoid of any
religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is
no more a religious ceremony than the taking of
an oath of office by a public official or by a
candidate for admission to the bar.
In requiring school pupils to participate in the flag
salute, the State thru the Secretary of Education
is not imposing a religion or religious belief or a
religious test on said students. It is merely
enforcing
a
non-discriminatory school regulation applicable to
According
to
a
popular
expression, they could take it or
leave it! Having elected not to
comply with the regulation about
the flag salute they forfeited
their right to attend public
schools. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to
this Office a report on those who choose not to
participate in flag ceremony or salute the
Philippine flag. (pp. 147-148, Rollo of G.R. No.
95770; Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade the
children of Jehovah's Witnesses to obey the memorandum. In the
Buenavista Elementary School, the children were asked to sign an
Agreement (Kasabutan) in the Cebuano dialect promising to sing
the national anthem, place their right hand on their breast until
the end of the song and recite the pledge of allegiance to the flag
(Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of
G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge,
Antonio A. Sangutan, met with the Jehovah's Witnesses' parents,
as disclosed in his letter of October 17, 1990, excerpts from which
reveal the following:
After two (2) fruitless confrontation meetings with
the Jehovah's Witnesses' parents on October 2,
1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as
mandated by law specifically Republic Act No.
1265, this Office hereby orders the dropping from
the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I
up to Grade VI effective today.
xxx xxx xxx
This order is in compliance with Division
Memorandum No. 108 s. 1989 dated November 17,
1989 by virtue of Department Order No. 8 s. 1955
dated July 21, 1955 in accordance with Republic
Act No. 1265 and Supreme Court Decision of a
case "Genaro Gerona, et al., Petitioners and
Appellants vs. The Honorable Secretary of
Education, et al., Respondents and Appellees'
dated August 12, 1959 against their favor. (p.
149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F.
Biongcog, ordered the "dropping from the rolls" of students who
"opted to follow their religious belief which is against the Flag
Salute Law" on the theory that "they forfeited their right to attend
public schools." (p. 47, Rollo of G.R. No. 95770.)
1st
Indorsement
DAANBANTAYAN
DISTRICT
II
Daanbantayan, Cebu, July 24, 1990.
F.
BIONGCOG
Our task here is extremely difficult, for the 30-year old decision of
this court in Gerona upholding the flag salute law and approving
the expulsion of students who refuse to obey it, is not lightly to be
trifled with.
time has come to re-examine it. The idea that one may be compelled
to salute the flag, sing the national anthem, and recite the patriotic
pledge, during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the conscience
of the present generation of Filipinos who cut their teeth on the Bill
of Rights which guarantees their rights to free speech ** and the
free exercise of religious profession and worship (Sec. 5, Article III,
1987 Constitution; Article IV, Section 8, 1973 Constitution; Article
III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights,
for it involves the relationship of man to his Creator (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).
The right to religious profession and worship has
a two-fold aspect, vis., freedom to believe and
freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm
of thought. The second is subject to regulation
where the belief is translated into external acts
that affect the public welfare (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts" or
behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag
ceremony. They quietly stand at attention during the flag ceremony
to show their respect for the right of those who choose to participate
in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50
and Rollo of G.R. No. 95770, p. 48). Since they do not engage in
disruptive behavior, there is no warrant for their expulsion.
The sole justification for a prior restraint or
limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German
vs. Barangan, 135 SCRA 514, 517) is the existence
of a grave and present danger of a character both
grave and imminent, of a serious evil to public
safety, public morals, public health or any other
legitimate public interest, that the State has a
right (and duty) to prevent." Absent such a threat
to public safety, the expulsion of the petitioners
from the schools is not justified.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past
or perhaps conducted with very few participants,
and the time will come when we would have
citizens untaught and uninculcated in and not
imbued with reverence for the flag and love of
country, admiration for national heroes, and
patriotism a pathetic, even tragic situation, and
all because a small portion of the school
population imposed its will, demanded and was
granted an exemption. (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the
Jehovah's Witnesses from saluting the flag, singing the national
anthem and reciting the patriotic pledge, this religious group which
FERNANDO, J.:
The novel question raised in this certiorari proceeding concerns the
eligibility of an ecclesiastic to an elective municipal position.
Private respondent, Father Margarito R. Gonzaga, was, in 1971,
elected to the position of municipal mayor of Alburquerque,
Bohol. 1 Therefore, he was duly proclaimed. A suit for quo
warranto was then filed by petitioner, himself an aspirant for the
office, for his disqualification 2 based on this Administrative Code
provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons
receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality." 3 The
suit did not prosper, respondent Judge sustaining the right of
Father Gonzaga to the office of municipal mayor. He ruled that
such statutory ineligibility was impliedly repealed by the Election
Code of 1971. The matter was then elevated to this Tribunal by
petitioner. It is his contention that there was no such implied
repeal, that it is still in full force and effect. Thus was the specific
question raised.
There is no clear-cut answer from this Tribunal. After a lengthy
and protracted deliberation, the Court is divided on the issue.
Seven members of the Court are of the view that the judgment
should be affirmed as the challenged provision is no longer
operative either because it was superseded by the 1935
Constitution or repealed. Outside of the writer of this opinion, six
other Justices are of this mind They are Justices Teehankee,
Muoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero.
For them, the overriding principle of the supremacy of the
Constitution or, at the very least, the repeal of such provision bars
a reversal. 4 The remaining five members of this Court, Chief
Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino,
on the other hand, hold the position that such a prohibition against
4. This is the first case then where this Court has to face squarely
such an issue. This excerpt from the opinion of Justice Moreland in
the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a
force unimpaired by the passage of time: "Relative to the theory
that Act No. 1627 has stood so long and been silently acquiesced in
for so great a length of time that it should not be disturbed, it may
be said that the fact that certain individuals have, by ignorance or
neglect, failed to claim their fundamental rights, furnishes no
reason why another individual, alert to his rights and their proper
enforcement, should be prevented from asserting and sustaining
those rights. The fact that Smith and Jones have failed to demand
their constitutional rights furnishes no basis for the refusal to
consider and uphold the constitutional rights of Richard Roe In the
case of Sadler v. Langham (34 Ala. 311), this same question was
under consideration and the court in resolving it said: 'It may be
urged, that these statutes have stood, and been silently acquiesced
in for so great a length of time, they should not now be disturbed.
We are sensible of the force of this argument. It will be observed,
however, that in Tennessee, the decision which declared the private
road law unconstitutional was pronounced forty years after the
enact. judgment of the statute; and in New York, after seventy
years had elapsed. It is, perhaps, never too late to re- establish
constitutional rights, the observance of which had been silently
neglected." 22 To support such a conclusion, no less than the great
Chief Justice Marshall, speaking for this Court in United States v.
More, in disposing of a contention by one of the parties as to
appellate jurisdiction having been previously exercised and
therefore beyond dispute was likewise relied upon. Thus: "No
question was made in that case as to the jurisdiction petition. It
passed sub silentio, and the court does not consider itself bound by
that case. 23 So it should be in this litigation. As set forth at the
outset, it is not even necessary to annul the challenged
Administrative Code provision. It is merely declared inoperative by
virtue of the mandate of the 1935 Constitution, similarly found in
the present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight
votes needed to give it binding force. The attack on the continuing
effectivity of Section 2175 having failed, it must be, as noted at the
outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The
judgment a quo is reversed and set aside. Respondent Gonzaga is
hereby ordered immediately to vacate the mayoralty of the
municipality of Albuquerque, Bohol, there being a failure to elect.
No pronouncement as to costs.
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
Significance
The purpose of the military and its need to foster cohesiveness were
regarded as appropriate justifications to restrict the religious rights
of individuals. The Court did not try to evaluate the merit of
military's claims about the importance of regulating the appearance
of its members, deciding that the military should be left to make
such final decisions rather than the courts.
This was one of the first cases decided by the "Reagan Court" - that
is to say, a court made up mostly by justice appointed by President
Ronald Reagan. This court consistently refused to apply the
"compelling interest" test in questions of religious freedom and thus
consistently found in favor of the government infringing upon the
liberty of religious minorities based upon weaker justifications.
Background Information
LAMB'S CHAPEL
V. CENTER MORICHES UNION FREE SCHOOL DISTRICT
Lamb's Chapel v. Center Moriches Union Free School
District, 508 U.S. 384 (1993), was a decision by the Supreme Court
of the United Statesconcerning whether Free Speech Clause of
the First Amendment was offended by a school district that refused
to allow a church access to school premises to show films dealing
with family and child-rearing issues faced by parents. In a
unanimous decision,[1] the court concluded that it was.
In disputes over the question of separation of church and state, the
use of school facilities by religious groups has been an issue
numerous times. The landmark case of Lambs Chapel v. Center
Moriches Union Free School District (1993) set a broad precedent
for the use of public school facilities by outside groups, including
religious organizations. In a rare unanimous decision, the U.S.
Supreme Court ruled that a school boards denial of school facility
use to a religious group violated the groups First Amendment
guarantee to free speech.
Facts of the Case
Lambs Chapel arose where a New York state law allowed school
boards to permit a wide variety of groups to use their facilities and
property for a wide array of outside purposes, including social, civic,
and recreational meetings and entertainment. However, the law did
not include the use of meetings for religious purposes.
A local church twice requested to use school facilities at Center
Moriches Union Free School District, outside of school hours, to
show a 6-hour video series dealing with parenting issues that
centered on Christian family values. Board officials denied the
churchs request on both occasions, claiming that the film was
church related.
When the church and its pastor sued the board for violating the
Free Speech Clause of the First Amendment of the U.S.
Constitution, a federal trial court granted its motion for summary
judgment. The court maintained that since the schools facilities
were only a limited public forum, the boards denials of the groups
request to use them for religious activities were, in fact, viewpoint
neutral. The Second Circuit affirmed in favor of the board.
The Courts Ruling
On further review, the U.S. Supreme Court reversed in favor of the
religious organization, on the basis that the boards denial of its
request to use school facilities solely because the group planned to
show a film with a religious basis did, indeed, violate the churchs
free speech rights as protected by the First Amendment. The Court
explained that since the facilities were used by other non-school-
related groups for functions during nonschool hours, the board had
in effect established a limited public forum.
The Court added that since there was no apparent threat of
violence or disruption for allowing the group to use school facilities,
the request to use district facilities should likely have been granted.
The Court thus found that insofar as the only reason the board
rejected the organizations request was solely that the group was of
a religious nature, denying it access for this reason was a violation
of the viewpoint neutrality standard that requires state agencies
to exhibit neither a positive nor negative attitude toward religion.
By allowing school facilities to be used by civic and social groups,
such as the Boy Scouts or Girl Scouts, the Supreme Court was of
the opinion that school boards such as the one in Center Moriches
establish a limited public forum and cannot then deny similar
access or facility use to religious groups or organizations. The Court
reasoned that opening school doors for some groups but not
specifically for religious groups violates both the notion of viewpoint
neutrality and their rights to free speech as protected by the First
Amendment, even if this speech has its basis in religion or is made
for religious purposes.
Likewise, the Court observed that allowing a group to use school
facilities for religious purposes does not imply that school or board
officials promote or establish religion. In fact, the Court pointed out
that the use of facilities does not imply that a meeting (or movie, as
in the case at bar) is a school-sponsored or schoolendorsed event,
because while such a gathering is not necessarily closed to the
public, there is nothing to suggest that the board has established an
open forum for the use of its facilities.
As the Supreme Court noted in Lambs Chapel, and reiterated
almost a decade later in Good News Club v. Milford Central School
(2001), if the message being delivered by the use of school facilities
is appropriate (which the movie on child rearing and family values
was), then a government-sponsored agency such as a school board
cannot discriminate solely on the basis of the religious nature of the
messenger.
Series Nos. 116, 119, 121 and 128. The Board classified the series
as X or not for public viewing on the ground that they offend and
constitute an attack against other religions which is expressly
prohibited by law.
Petitioner pursued two (2) courses of action against the
respondent Board. On November 28, 1992, it appealed to the Office
of the President the classification of its TV Series No. 128. It
succeeded in its appeal for on December 18, 1992, the Office of the
President
reversed
the
decision
of
the
respondent
Board. Forthwith, the Board allowed Series No. 128 to be publicly
telecast.
On December 14, 1992, petitioner also filed against the
respondent Board Civil Case No. Q-92-14280, with the RTC, NCR,
Quezon City.[1]Petitioner alleged that the respondent Board acted
without jurisdiction or with grave abuse of discretion in requiring
petitioner to submit the VTR tapes of its TV program and in xrating them. It cited its TV Program Series Nos. 115, 119, 121 and
128. In their Answer, respondent Board invoked its power under
P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on
petitioners prayer for a writ of preliminary injunction. The parties
orally
argued
and
then
marked
their
documentary
evidence. Petitioner submitted the following as its exhibits, viz.:
(1)
REMARKS:
There are some inconsistencies in the particular program as it is
very surprising for this program to show series of Catholic
ceremonies and also some religious sects and using it in their
discussion about the bible. There are remarks which are direct
criticism which affect other religions.
REMARKS:
I refuse to approve the telecast of this episode for reasons of the
attacks, they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that
they are right and the rest are wrong, which they clearly present in
this episode.
(5)
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own
faith and beliefs and avoid attacks on other faith.
(3)
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible
and says that our (Catholic) veneration of the Virgin Mary is not to
be condoned because nowhere it is found in the bible that we should
do so.
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic
and Protestants beliefs.
We suggest a second review.
(6)
(7)
(8)
xxx
xxx
xxx
x x x
WHEREFORE, judgment is hereby rendered ordering respondent
Board of Review for Motion Pictures and Television (BRMPT) to
grant petitioner Iglesia ni Cristo the necessary permit for all the
series of Ang Iglesia ni Cristo program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from
offending and attacking other existing religions in showing Ang
Iglesia ni Cristo program.
SO ORDERED.
Petitioner moved for reconsideration[11] praying: (a) for the
deletion of the second paragraph of the dispositive portion of the
Decision, and (b) for the Board to be perpetually enjoined from
requiring petitioner to submit for review the tapes of its
program. The respondent Board opposed the motion.[12] On March
7, 1993, the trial court granted petitioners Motion for
Reconsideration. It ordered:[13]
The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioners TV program
Ang Iglesia ni Cristo, and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the
airing of petitioners religious program, series Nos. 115, 119 and
121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good
customs.
x x x
xxx
xxx
Second. The evidence shows that the respondent Board xrated petitioners TV series for attacking other religions, especially
the Catholic church. An examination of the evidence, especially
Exhibits A, A-1, B, C, and D will show that the so-called
attacks are mere criticismsof some of the deeply held dogmas
and tenets of other religions. The videotapes were not viewed by
the respondent court as they were not presented as evidence. Yet
they were considered by the respondent court as indecent, contrary
to law and good customs, hence, can be prohibited from public
viewing under Section 3(c) of PD 1986. This ruling clearly
suppresses petitioners freedom of speech and interferes with its
right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v.
Connecticut,[20] viz.:
xxx
xxx
xxx
synonymous with the word offend. Moreover, Article 201 (2) (b) (3)
of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any
religion. It cannot be utilized to justify prior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD
1986, included attack against any religion as a ground for
censorship. The ground was not, however, carried over by PD
1986. Its deletion is a decree to disuse it. There can be no other
intent. Indeed, even the Executive Department espouses this
view. Thus, in an Opinion dated November 28, 1985 then Minister
of Justice, now President of the Senate, Neptali Gonzales
explained:
x x x
However, the question whether the BRMPT (now MTRCB) may
preview and censor the subject television program of INC should be
viewed in the light of the provision of Section 3, paragraph (c) of PD
1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines
or its people or with dangerous tendency to encourage the
commission of violence, or of a wrong as determined by the Board,
applying contemporary Filipino cultural values as standard. As
stated, the intention of the Board to subject the INCs television
program to previewing and censorship is prompted by the fact that
its religious program makes mention of beliefs and practices of
other religion. On the face of the law itself, there can conceivably be
no basis for censorship of said program by the Board as much as the
alleged reason cited by the Board does not appear to be within the
contemplation of the standards of censorship set by law. (Italics
supplied)
Fourth. In x-rating the TV program of the petitioner,
the respondents failed to apply the clear and present danger
rule. In American Bible Society v. City of Manila,[22] this Court
held: The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can
be justified like other restraints on freedom of expression on the
ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent.
In Victorianovs. Elizalde Rope Workers Union,[23] we further ruled
that x x x it is only where it is unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of
the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid
the danger.
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video
tapes constitute impermissible attacks against another
religion. There is no showing whatsoever of the type of harm the
tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including
religious speech, cannot be justified by hypothetical fears
but only by the showing of a substantive and imminent evil
which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and
present danger rule to the case at bar. In the United States, it is
true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test
in Schenck v. US,[24] as follows: x x x the question in every case is
whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to
prevent. Admittedly, the test was originally designed to determine
the latitude which should be given to speech that espouses antigovernment action. Bannered by Justices Holmes and Brandeis,
the test attained its full flowering in the decade of the forties, when
its umbrella was used to protect speech other than subversive
speech.[25] Thus, for instance, the test was applied to annul a total
ban on labor picketing.[26] The use of the test took a downswing in
the 1950s when the US Supreme Court decided Dennis v. United
States involving
communist
conspiracy.[27] In Dennis,
the
components of the test were altered as the High Court adopted
Judge Learned Hands formulation that x x x in each case [courts]
must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary
to avoid the danger. The imminence requirement of the test was
thus diminished and to that extent, the protection of the rule was
weakened. In 1969, however, the strength of the test was
reinstated inBrandenburg v. Ohio,[28] when the High Court restored
in the test the imminence requirement, and even added an intent
requirement which according to a noted commentator ensured that
only speech directed at inciting lawlessness could be
punished.[29] Presently in the United States, the clear and present
danger test is not applied to protect low value speeches such as
obscene speech, commercial speech and defamation. Be that as it
may, the test is still applied to four types of speech: speech
that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information
that endangers a fair trial.[30] Hence, even following the drift of
American jurisprudence, there is reason to apply the clear and
present danger test to the case at bar which concerns speech that
attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb
and disturb terribly.
It is also opined that it is inappropriate to apply the clear and
present danger test to the case at bar because the issue involves
the contentof speech and not the time, place or manner of
speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech
and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that
are pre-taped and hence, their speech content is known and not an
X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the
substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x
the determination of the question as to whether or not such
vilification, exaggeration or fabrication falls within or lies outside
the boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administrative body
such as a Board of Censors. He submits that a system of prior
restraint may only be validly administered by judges and not left
to administrative agencies. The same submission is made by Mr.
Justice Mendoza.
This thoughtful thesis is an attempt to transplant another
American rule in our jurisdiction. Its seedbed was laid down by Mr.
Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day.[31] By 1965, the US Supreme Court
in Freedman v. Maryland[32] was ready to hold that the teaching of
cases is that, because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom
A petition for certiorari, prohibition and injunction, the case was raffled to
Br. 104, then presided by Judge, now Associate Justice of the Court of
Appeals Maximiano Asuncion.
[2] Original Records, p. 24.
[3] Original Records, p. 25.
[4] Original Records, p. 27.
[5] Original Records, p. 28.
[6] Original Records, p. 29. The second review shows the following action of
the respondent Board:
REMARKS:
An unbalanced interpretation of some parts of the bible regarding
Christmas. They (The Iglesia ni Kristo) tackle/discuss only their own
interpretations (and) while the sides of the Protestants and the Catholics
who they pick on in this episode are not heard of.
We feel that this topic of the Iglesia ni Kristo which is (?) of
attacking other religious beliefs does not merit public telecast.
(Original Records, p. 30)
[7] Original Records, pp. 21-22.
[8] Original Records, p. 23.
[9] Original Records, pp. 121-120; pp. 144-149.
[10] Original Records, pp. 219-220.
[11] Original Records, pp. 223-230.
[12] Original Records, pp. 233-242.
[13] Original Records, pp. 245-250.
[14] Original Records, pp. 379-381.
[15] Tenth Division with Associate Justice Antonio P. Solano (ponente),
Associate Justice Alfredo Benipayo (chairman) and Associate Justice
Ricardo Galvez (member).
[16] Victoriano v. Elizalde Rope Worker Union,
L-25246, September 12,
1974 per Mr. Justice Calixto Zaldivar.
[17] Cruz, Constitutional Law, 1991 ed., pp. 176-178.
[18] Original Records, p. 30.
[19] Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan,
372 US 58 (1963); New York Times v. United States, 403 US 713 (1971).
[20] 310 US 296.
[21] Sec. 4. Governing Standard. a) the Board shall judge the motion
pictures and television programs and publicity materials submitted to it for
review, using as standard contemporary Filipino cultural values, to abate
what are legally objectionable for being immoral, indecent, contrary to law,
and good customs x x x such as but not limited:
xxx
xxx
xxx
vii. Those which clearly constitute an attack against any race, creed, or
religion as distinguished from individual members thereof.
[22] 101 Phil. 386.
[23] 59 SCRA 54, 58.
[24] 249 US 47,63 Led 470 (1919).
[25] Bridges v. California, 314 US 252, 262 where J. Black observed that the
test has afforded a practical guidance in a variety of cases in which the
scope of constitutional protections of freedom of expression was an issue.
[26] Thornhill v. Alabama, 310 US 88 (1940).
[27] 341 US 494 (1951).
[28] Id., at p. 510.
[29] Gunther, Learned Hand and the Origins of Modern First Amendment
Doctrine, Some Fragments of History, 27 Stan L. Rev. 719 (1975).
[30] Hentoff, Speech, Harm and Self Government: Understanding the Ambit
of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453
(1991).
[31] 370 US 478 (1962).
[32] 380 US 51 (1965).
[33] Id., at p. 58.
[34] 41 Phil. 468 (1921) per Justice Malcolm.
[35] See Hunter, Toward a Better Understanding of the Prior Restraint
Doctrine, A Reply to Prof. Mayton, 67 Cornell L. Rev, 283 (1982) for the
view that courts are no better than administrative agencies in protecting
First Amendment rights.
[1]
SOLEDAD
S.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To be
held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking
religious freedom, the consequences of the case are not only temporal. The
task is not made easier by the American origin of our religion clauses and
the wealth of U.S. jurisprudence on these clauses for in the United States,
there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses.[1] The U.S. Supreme Court itself
has acknowledged that in this constitutional area, there is considerable
internal inconsistency in the opinions of the Court.[2] As stated by a
professor of law, (i)t is by now notorious that legal doctrines and judicial
decisions in the area of religious freedom are in serious disarray. In perhaps
no other area of constitutional law have confusion and inconsistency
achieved such undisputed sovereignty.[3]Nevertheless, this thicket is the
only path to take to conquer the mountain of a legal problem the case at bar
presents. Both the penetrating and panoramic view this climb would
provide will largely chart the course of religious freedom in Philippine
jurisdiction. That the religious freedom question arose in an administrative
case involving only one person does not alter the paramount importance of
the question for the constitution commands the positive protection by
government of religious freedom -not only for a minority, however small- not
only for a majority, however large- but for each of us.[4]
I. Facts
The facts of the case will determine whether respondent will prevail in
her plea of religious freedom. It is necessary therefore to lay down the facts
in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant
Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of
Branch 253, Regional Trial Court of Las Pias City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter
in said court, is living with a man not her husband. They allegedly have a
child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Pias City but
of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he
believes that she is committing an immoral act that tarnishes the image of
the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is
no truth as to the veracity of the allegation and challenged Estrada to
appear in the open and prove his allegation in the proper forum.[6] Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved
for the inhibition of Judge Caoibes from hearing her case to avoid suspicion
and bias as she previously filed an administrative complaint against him
and said case was still pending in the Office of the Court Administrator
(OCA). Escritors motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada confirmed
that he filed the letter-complaint for immorality against Escritor because in
his frequent visits to the Hall of Justice of Las Pias City, he learned from
conversations therein that Escritor was living with a man not her husband
and that she had an eighteen to twenty-year old son by this man. This
prompted him to write to Judge Caoibes as he believed that employees of
the judiciary should be respectable and Escritors live-in arrangement did
not command respect.[7]
xxx
xxx
Undersigned submits to the just, humane and fair discretion of the Court
with verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority
in relation to her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that
the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Pias City for investigation, report and
recommendation. In the course of Judge Macedas investigation, Escritor
again testified that her congregation allows her conjugal arrangement with
Quilapio and it does not consider it immoral. She offered to supply the
investigating judge some clippings which explain the basis of her
congregations
belief
and
practice
regarding
her
conjugal
arrangement. Escritor started living with Quilapio twenty years ago when
her husband was still alive but living with another woman. She met this
woman who confirmed to her that she was living with her (Escritors)
husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a Declaration of
Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic),
can you cite some particular rules and regulations in your
congregation?
A:
Yes, Sir.
Can I sir, cite, what the Bible says, the basis of that Pledge
of Faithfulness as we Christians follow. The basis is
herein stated in the Book of Matthew, Chapter Five, Verse
Twenty-two. So, in that verse of the Bible, Jesus said
that everyone divorcing his wife, except on account of
II. Issue
xxx
xxx
To understand the life that the religion clauses have taken, it would
be well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political branches
to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval
world and in the American experience.[27] This fresh look at the religion
clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was
marked by religious ceremonies. Tribal society survived because religious
sanctions effectively elicited adherence to social customs. A person who
broke a custom violated a taboo which would then bring upon him the
wrathful vengeance of a superhuman mysterious power.[28]Distinction
between the religious and non-religious would thus have been meaningless
to him. He sought protection from all kinds of evil - whether a wild beast or
tribe enemy and lightning or wind - from the same person. The head of the
clan or the Old Man of the tribe or the king protected his wards against both
human and superhuman enemies. In time, the king not only interceded for
his people with the divine powers, but he himself was looked upon as a
divine being and his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
from the responsibility of leading the tribe in war and policing it in peace as
to require the full-time services of a special priest class. This saw the birth
of the social and communal problem of the competing claims of the king and
priest. Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also
performed priestly functions, he carried out these functions because he was
the head and representative of the community.[30]
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man
and man promulgated laws concerning mans obligations to the
supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals and
sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property; [31] and also catalogued the gods
and assigned them their places in the divine hierarchy so as to put
Hammurabis own god to a position of equality with existing gods. [32] In
sum, the relationship of religion to the state (king) in pre-Hebreic times may
be characterized as a union of the two forces, with the state almost
universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic
religion:theocracy. The authority and power of the state was ascribed to
God.[34] The Mosaic creed was not merely regarded as the religion of the
state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God,
Moses decided when the people should travel and when to pitch camp, when
they should make war and when peace. Saul and David were made kings by
the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi,
the Mosaic code combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary importance. On the
contrary, religious motivation was primary and all-embracing: sacrifices
were made and Israel was prohibited from exacting usury, mistreating
aliens or using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used
religion as an engine to advance the purposes of the state. Hammurabi
unified Mesopotamia and established Babylon as its capital by elevating its
city-god to a primary position over the previous reigning gods. [35]Moses, on
the other hand, capitalized on the natural yearnings of the Hebrew slaves
for freedom and independence to further Gods purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the temple and the
full worship of God.[36]
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not only the
future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is
acknowledged by many writers, among whom is Northcott who pointed
out, viz:
Historically it was the Hebrew and Christian conception of a single
and universal God that introduced a religious exclusivism leading
to compulsion and persecution in the realm of religion. Ancient
religions were regarded as confined to each separate people
believing in them, and the question of change from one religious
belief to another did not arise. It was not until an exclusive fellowship,
that the questions of proselytism, change of belief and liberty
of religion arose.[37] (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In
this period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors
was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.[38] Under Solomon, the subordination of religion
to state became complete; he used religion as an engine to further the states
purposes. He reformed the order of priesthood established by Moses
because the high priest under that order endorsed the claim of his rival to
the throne.[39]
The subordination of religion to the state was also true in preChristian Rome which engaged in emperor-worship. When Augustus
became head of the Roman state and the priestly hierarchy, he placed
religion at a high esteem as part of a political plan to establish the real
religion of pre-Christian Rome - the worship of the head of the state. He set
his great uncle Julius Caesar among the gods, and commanded that worship
of Divine Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor
as the Christians dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the death
of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was
hatred of the human race, placing them in the same category as pirates
and brigands and other enemies of mankind who were subject to summary
punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the
empire and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a state
within a state over which he had no control. He had two options: either to
force it into submission and break its power or enter into an alliance with it
and procure political control over it. He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned
the clergy and by torture forced them to sacrifice.[42] But his efforts proved
futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two co-rulers of
the empire, in issuing an edict of toleration to Christians on condition that
nothing is done by them contrary to discipline.[43] A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history of
religious liberty. It provided that liberty of worship shall not be
denied to any, but that the mind and will of every individual shall be free
to manage divine affairs according to his own choice. (emphasis supplied)
Thus, all restrictive statutes were abrogated and it was enacted that every
person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or
hindrance. Furthermore, it was provided that the same free and open
power to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his
choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but
acquired privilege, then prestige, and eventually, exclusive power. Religion
became an engine of state policy as Constantine considered Christianity a
means of unifying his complex empire. Within seven years after the Edict of
Milan, under the emperors command, great Christian edifices were erected,
the clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors called
and dismissed church councils, and enforced unity of belief and
practice. Until recently the church had been the victim of persecution and
repression, but this time it welcomed the states persecution and repression
of the nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and
state was not easy. It was a constant struggle of one claiming dominance
over the other. In time, however, after the collapse and disintegration
of the Roman Empire, and while monarchical states were gradually
being consolidated among the numerous feudal holdings, the
church stood as the one permanent, stable and universal
power. Not surprisingly, therefore, it claimed not merely equality
but superiority over the secular states. This claim, symbolized by Pope
Leos crowning of Charlemagne, became the churchs accepted principle of
its relationship to the state in the Middle Ages. As viewed by the church,
the union of church and state was now a union of the state in the
church. The rulers of the states did not concede to this claim of
supremacy. Thus, while Charlemagne received his crown from the Pope, he
himself crowned his own son as successor to nullify the inference of
supremacy.[45] The whole history of medieval Europe was a struggle
for supremacy between prince and Pope and the resulting religious
wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established, the
purpose of which was the discovery and extermination of heresy. Accused
heretics were tortured with the approval of the church in the bull Ad
extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed to
ascribe to the Reformation the rise of religious liberty and its acceptance as
the principle governing the relations between a democratic state and its
citizens, history shows that it is more accurate to say that the same causes
that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the
principle of separation of church and state.[46] Pleas for tolerance and
freedom of conscience can without doubt be found in the writings of leaders
of the Reformation. But just as Protestants living in the countries of papists
pleaded for toleration of religion, so did the papists that lived where
Protestants were dominant.[47] Papist and Protestant governments alike
accepted the idea of cooperation between church and state and regarded as
essential to national unity the uniformity of at least the outward
manifestations of religion.[48] Certainly, Luther, leader of the Reformation,
stated that neither pope, nor bishop, nor any man whatever has the right of
making one syllable binding on a Christian man, unless it be done with his
own consent.[49] But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the
secular powers that (h)eretics are not to be disputed with, but to be
condemned unheard, and whilst they perish by fire, the faithful ought to
pursue the evil to its source, and bathe their hands in the blood of the
Catholic bishops, and of the Pope, who is a devil in disguise. [50] To Luther,
unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton,
Zwingli and Calvin strongly espoused theocracy or the use of the state as an
engine to further religion. In establishing theocracy in Geneva, Calvin
made absence from the sermon a crime, he included criticism of the clergy in
the crime of blasphemy punishable by death, and to eliminate heresy, he
cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the Reformation,
wrote that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings,
all these things I can see accomplish nothing except to make the evil more
widespread.[52] The minority or dissident sects also ardently
advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers
founded by George Fox in the 17th century, endorsed the supremacy and
freedom of the individual conscience. They regarded religion as outside the
realm of political governments.[53] The English Baptists proclaimed that the
magistrate is not to meddle with religion or matters of conscience, nor
compel men to this or that form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luthers belief that civic cohesion could not
exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use
of state machinery to further religious interests as promoted by
Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form
in the arguments of some dissident minorities that the magistrate
should not intermeddle in religious affairs.[55] After the Reformation,
Erastianism pervaded all Europe except for Calvins theocratic Geneva. In
England, perhaps more than in any other country, Erastianism was
at its height. To illustrate, a statute was enacted by Parliament in 1678,
which, to encourage woolen trade, imposed on all clergymen the duty of
seeing to it that no person was buried in a shroud made of any substance
other than wool.[56] Under Elizabeth, supremacy of the crown over the
church was complete: ecclesiastical offices were regulated by her
proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism
attained its present doctrinal status.[57] Elizabeth was to be recognized as
the only Supreme Governor of this realm . . . as well in all spiritual or
ecclesiastical things or causes as temporal. She and her successors were
vested, in their dominions, with all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction.[58] Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant
sects, but denied toleration to Catholics. [59] In 1689, William III issued
the Act of Toleration which established a de facto toleration for all except
Catholics. The Catholics achieved religious liberty in the 19th century
when the Roman Catholic Relief Act of 1829 was adopted. The Jews
followed suit in 1858 when they were finally permitted to sit in
Parliament.[60]
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the
new republic, the theocratic state which had flourished intermittently in
Israel, Judea, the Holy Roman Empire and Geneva was completely
gone. The prevailing church-state relationship in Europe was Erastianism
embodied in the system of jurisdictionalism whereby one faith was favored
as the official state-supported religion, but other faiths were permitted to
exist with freedom in various degrees. No nation had yet adopted as the
basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant
principle that neither might be used as an engine to further the
policies of the other, although the principle was in its seminal form
in the arguments of some dissident minorities and intellectual
leaders of the Renaissance. The religious wars of 16th and
17thcentury Europe were a thing of the past by the time America
declared its independence from the Old World, but their memory
was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the power
of government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant
sects had persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of
a particular time and place, men and women had been fined, cast in jail,
cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established
churches, non-attendance at those churches, expressions of non-belief in
their doctrines, and failure to pay taxes and tithes to support them.[61]
In 1784, James Madison captured in this statement the entire
history of church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the
secular arm to extinguish religious discord, by proscribing all differences in
religious opinions.[62]
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the
willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by
ambitious princes and emperors in exchange for religions
invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional
democracy and in human history.[63]
xxx
xxx
VI.
given their just due, a rigid, wooden interpretation of the religion clauses
that is blind to societal and political realities must be avoided. [114]
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits
religion. These cases are easier to resolve as, in general, these actions are
plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion. [115] The more difficult
religion clause cases involve government action with a secular purpose and
general applicability which incidentally or inadvertently aids or burdens
religious exercise. In Free Exercise Clause cases, these government actions
are referred to as those with burdensome effect on religious exercise even
if the government action is not religiously motivated. [116] Ideally, the
legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But
when the legislature fails to do so, religions that are threatened and
burdened turn to the courts for protection.[117]Most of these free exercise
claims brought to the Court are for exemption, not invalidation of the
facially neutral law that has a burdensome effect.[118]
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult
task for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes.[119] It was in the 1890 case of Davis
v. Beason[120] that the United States Supreme Court first had occasion
to define religion, viz:
The term religion has reference to ones views of his relations to
his Creator, and to the obligations they impose of reverence for his
being and character, and of obedience to his will. It is often
confounded with the cultus or form of worship of a particular sect, but is
distinguishable from the latter. The First Amendment to the Constitution,
in declaring that Congress shall make no law respecting the establishment
of religion, or forbidding the free exercise thereof, was intended to allow
everyone under the jurisdiction of the United States to entertain such
notions respecting his relations to his Maker and the duties they impose as
may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not injurious to
the equal rights of others, and to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the
free exercise of religion embraces the right to maintain theories of life
and of death and of the hereafter which are rank heresy to followers of
the orthodox faiths.[123] By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism and
Taoism.[124] In 1961, the Court, in Torcaso v. Watkins,[125]expanded the
term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger[126] which involved four
men who claimed conscientious objector status in refusing to serve in the
Vietnam War. One of the four, Seeger, was not a member of any organized
religion opposed to war, but when specifically asked about his belief in a
Supreme Being, Seeger stated that you could call (it) a belief in a Supreme
Being or God. These just do not happen to be the words that I use. Forest
Peter, another one of the four claimed that after considerable meditation
and reflection on values derived from the Western religious and
philosophical tradition, he determined that it would be a violation of his
moral code to take human life and that he considered this belief superior to
any obligation to the state. The Court avoided a constitutional question by
broadly interpreting not the Free Exercise Clause, but the statutory
definition of religion in the Universal Military Training and Service Act of
1940 which exempt from combat anyone who, by reason of religious
training and belief, is conscientiously opposed to participation in war in any
form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the
designation God, was merely clarifying the meaning of religious tradition
The Court first interpreted the Free Exercise Clause in the 1878 case
of Reynolds v. United States.[143] This landmark case involved Reynolds,
a Mormon who proved that it was his religious duty to have several wives
and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in the
life to come. Reynolds act of contracting a second marriage violated Section
5352, Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jeffersons Bill Establishing
Religious Freedom which, according to the Court, declares the true
distinction between what properly belongs to the Church and what to the
State.[144] The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the
field of opinion, and to restrain the profession or propagation of principles
on supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt acts
against peace and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended that the
civil government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was her duty to burn herself
upon the funeral pile of her dead husband, would it be beyond the power of
the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be
allowed. Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself. Government could exist only in name
under such circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed
no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied
by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the
legislatures religious preferences. Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any
problem.[147] The Free Exercise Clause thus gave no protection against the
proscription of actions even if considered central to a religion unless the
legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years
as shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on polygamy
such as the Davis case and Church of Latter Day Saints v. United
States.[149] However, more than a century since Reynolds was decided, the
Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings
in the earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs[151] and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs
and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court
struck down a state law requiring as a qualification for public office an oath
declaring belief in the existence of God. The protection also allows courts to
look into the good faith of a person in his belief, but prohibits inquiry into
the truth of a persons religious beliefs. As held in United States v.
Ballard,[153] (h)eresy trials are foreign to the Constitution. Men may
believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection,
religious speech and expressive religious conduct are accorded the
highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,[154] the Court struck down a state law prohibiting door-todoor solicitation for any religious or charitable cause without prior approval
of a state agency. The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The Court
invalidated the state statute as the prior approval necessary was held to be
a censorship of religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the rankest
error to his neighbor. To persuade others to his point of view, the pleader,
as we know, resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that, in spite of
the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens of
a democracy.[155]
Cantwell took a step forward from the protection afforded by
the Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of
society. . . In every case, the power to regulate must be so exercised
as not, in attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)[156]
The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,[157] ruled that police could not prohibit members of the Jehovahs
Witnesses from peaceably and orderly proselytizing on Sundays merely
under the Free Exercise Clause with only grave and immediate danger
sufficing to override religious liberty. But the seeds of this heightened
scrutiny would only grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test,
the Warren Court began the modern free exercise jurisprudence.[168] Atwopart balancing test was established in Braunfeld v. Brown[169] where
the Court considered the constitutionality of applying Sunday closing laws
to Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were alternative ways of achieving the
states interest. He employed a two-part balancing test of validity
where the first step was for plaintiff to show that the regulation placed a
real burden on his religious exercise. Next, the burden would be upheld
only if the state showed that it was pursuing an overriding secular goal by
the means which imposed the least burden on religious practices. [170] The
Court found that the state had an overriding secular interest in setting
aside a single day for rest, recreation and tranquility and there was no
alternative means of pursuing this interest but to require Sunday as a
uniform rest day.
Two years after came the stricter compelling state interest test in
the 1963 case of Sherbert v. Verner.[171] This test was similar to thetwopart balancing test in Braunfeld,[172] but this latter test stressed that
the state interest was not merely any colorable state interest, but
must be paramount and compelling to override the free exercise
claim. In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment was
terminated for refusal to work on Saturdays on religious grounds. Her
claim was denied. She sought recourse in the Supreme Court. In laying
down the standard for determining whether the denial of benefits could
withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellants constitutional challenge, it must
be either because her disqualification as a beneficiary represents
no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of
appellants religion may be justified by a compelling state interest
in the regulation of a subject within the States constitutional
power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405,
421, 83 S Ct 328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic
that it is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable state
interest. (I)n this highly sensitive constitutional area, [o]nly the gravest
abuses, endangering paramount interests, give occasion for permissible
limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315.[174] The Court found that there was no such compelling state interest
to override Sherberts religious liberty. It added that even if the state could
show that Sherberts exemption would pose serious detrimental effects to
the unemployment compensation fund and scheduling of work, it was
incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The
Court thus carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of
Sherberts benefits would force her to choose between receiving benefits and
following her religion. This choice placed the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her
Saturday worship. This germinal case of Sherbertfirmly established the
exemption doctrine, [175] viz:
It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some
compelling state interest intervenes.
B. Establishment Clause
the Court struck down an Alabama law that required public school students
to observe a moment of silence for the purpose of meditation or voluntary
prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of the
Establishment Clause in the 1948 case of McCollum v. Board of
Education,[213] decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer
classes in religious instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents signed
printed cards requesting that their children be permitted to attend. The
classes were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty to
forty minutes during regular class hours in the regular classrooms of the
school building. The religious teachers were employed at no expense to the
school authorities but they were subject to the approval and supervision of
the superintendent of schools. Students who did not choose to take religious
instruction were required to leave their classrooms and go to some other
place in the school building for their secular studies while those who were
released from their secular study for religious instruction were required to
attend the religious classes. The Court held that the use of tax-supported
property for religious instruction and the close cooperation between the
school authorities and the religious council in promoting religious education
amounted to a prohibited use of tax-established and tax-supported public
school system to aid religious groups spread their faith. The Court rejected
the claim that the Establishment Clause only prohibited government
preference of one religion over another and not an impartial governmental
assistance of all religions. In Zorach v. Clauson,[214] however, the Court
upheld released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other
students attended study hall. Justice Douglas, the writer of the opinion,
stressed that (t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State. The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and
the force of the public school was used to promote that instruction. . . We
follow the McCollum case. But we cannot expand it to cover the present
released time program unless separation of Church and State means that
public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill
of Rights such a philosophy of hostility to religion.[215]
In the area of government displays or affirmations of belief, the Court
has given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,[216] the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the obvious
religious underpinnings of the restrictions. Citing the secular purpose of
the Sunday closing laws and treating as incidental the fact that this day of
rest happened to be the day of worship for most Christians, the Court
held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions and
people with no religion regard Sunday as a time for family activity, for
visiting friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate
Nebraskas policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers expense. The majority
opinion did not rely on the Lemon test and instead drew heavily
from history and the need for accommodation of popular religious
beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions with
prayer has become the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances,
xxx
xxx
on the presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious
practice. At times, this effect is unavoidable as a practical matter because
some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable that
only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials
are frequently willing to make such exemptions when the need is brought to
their attention, but this may not always be the case when the religious
practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation
that allowsaccommodations prevents needless injury to the
religious consciences of those who can have an influence in the
legislature;
while
a
constitutional
interpretation
that requires accommodations extends this treatment to religious
faiths that are less able to protect themselves in the political
arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different
faiths in a pluralistic nation. Without accommodation, many otherwise
beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in construction
areas can effectively exclude Amish and Sikhs from the workplace, or
employment anti-discrimination laws can conflict with the Roman Catholic
male priesthood, among others. Exemptions from such laws are easy to
craft and administer and contribute much to promoting religious freedom at
little cost to public policy. Without exemptions, legislature would be
frequently forced to choose between violating religious conscience
of a segment of the population or dispensing with legislation it
considers beneficial to society as a whole. Exemption seems
manifestly more reasonable than either of the alternative: no
exemption or no law.[272]
Benevolent
neutrality gives
room
for
different
kinds
of accommodation: those which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those which are discretionary or
legislative, i.e., and those not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause. [273] Some Justices of
the Supreme Court have also used the term accommodation to describe
government actions that acknowledge or express prevailing religious
sentiments of the community such as display of a religious symbol on public
property or the delivery of a prayer at public ceremonial events. [274] Stated
otherwise, using benevolent neutrality as a standard could result to three
situations of accommodation: those where accommodation is required,
those where it is permissible, and those where it isprohibited. In the first
situation, accommodation is required to preserve free exercise protections
and not unconstitutionally infringe on religious liberty or create penalties
for religious freedom. Contrary to the Smith declaration that free exercise
exemptions are intentional government advancement, these exemptions
merely relieve the prohibition on the free exercise thus allowing the
burdened religious adherent to be left alone. The state must create
exceptions to laws of general applicability when these laws threaten
religious convictions or practices in the absence of a compelling state
interest.[275] By allowing such exemptions, the Free Exercise Clause does not
give believers the right or privilege to choose for themselves to override
socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter
less of rights than duties; more precisely, it is a matter of rights derived
from duties. To deny a person or a community the right to act upon such a
duty can be justified only by appeal to a yet more compelling duty. Of
course, those denied will usually not find the reason for the denial
compelling. Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that
which transcends the political order, such denials should be rare and
painfully reluctant.[277]
The Yoder case is an example where the Court held that the state
must accommodate the religious beliefs of the Amish who objected to
enrolling their children in high school as required by law. The Sherbert
case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of
Sherbert.[278] In these cases of burdensome effect, the modern approach of
the Court has been to apply strict scrutiny, i.e., to declare the burden as
permissible, the Court requires the state to demonstrate that the regulation
which burdens the religious exercise pursues a particularly important or
compelling government goal through the least restrictive means. If the
states objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given.[279] This approach of the Court on
burdensome effect was only applied since the 1960s. Prior to this time,
the Court took the separationist view that as long as the state was acting in
pursuit of non-religious ends and regulating conduct rather than pure
religious beliefs, the Free Exercise Clause did not pose a hindrance such as
in Reynolds.[280] In the second situation where accommodation
is permissible, the state may, but is not required to, accommodate religious
interests. The Walz case illustrates this situation where the Court upheld
the constitutionality of tax exemption given by New York to church
properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that (t)he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.[281] The Court held
that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property
taxes. Other examples are theZorach case allowing released time in public
schools and Marsh allowing payment of legislative chaplains from public
funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid. [282] An
example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school
premises.[283] In effect, the last situation would arrive at a strict neutrality
conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to exemption
from the law or practice at issue. In order to be protected, the claimants
beliefs must be sincere, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the claimants
religious denomination. Only beliefs rooted in religion are protected by the
Free Exercise Clause; secular beliefs, however sincere and conscientious, do
not suffice.[284]
In other words, a three-step process (also referred to as the two-step
balancing process supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in this
process. First, (h)as the statute or government action created a burden on
the free exercise of religion? The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because the
Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is
ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. As evidence of sincerity, the U.S. Supreme Court
has considered historical evidence as in Wisconsin where the Amish people
had held a long-standing objection to enrolling their children in ninth and
tenth grades in public high schools. In another case, Dobkin v. District of
Columbia,[285] the Court denied the claim of a party who refused to appear
in court on Saturday alleging he was a Sabbatarian, but the Court noted
that he regularly conducted business on Saturday. Although it is true that
the Court might erroneously deny some claims because of a misjudgment of
sincerity, this is not as argument to reject all claims by not allowing
accommodation as a rule. There might be injury to the particular claimant
or to his religious community, but for the most part, the injustice is done
only in the particular case.[286]Aside from the sincerity, the court may look
into the centrality of those beliefs, assessing them not on an objective basis
but in terms of the opinion and belief of the person seeking exemption. In
Wisconsin, for example, the Court noted that the Amish peoples convictions
against becoming involved in public high schools were central to their way
of life and faith. Similarly, in Sherbert, the Court concluded that the
prohibition against Saturday work was a cardinal principle.[287] Professor
Lupu puts to task the person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant
religious practice must be demonstrated. Religious command should
outweigh custom, individual conscience should count for more than personal
convenience, and theological principle should be of greater significance than
institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individuals religious
tradition - reinforces sincerity. Most importantly, the law of free exercise
must be inclusive and expansive, recognizing non-Christian religions eastern, Western, aboriginal and otherwise - as constitutionally equal to
their Christian counterparts, and accepting of the intensity and scope of
fundamentalist creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state
interest to justify this infringement of religious liberty? In this step, the
government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than
assert the objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined if exemptions
are granted.[289] The person claiming religious freedom, on the other hand,
will endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of religious
liberty. This step involves balancing, i.e., weighing the interest of the
state against religious liberty to determine which is more compelling under
the particular set of facts. The greater the states interests, the more
central the religious belief would have to be to overcome it. In assessing the
state interest, the court will have to determine the importance of the secular
interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly
compelling, there will be no requirement that the state diminish the
effectiveness of its regulation by granting the exemption. [290]
Third, the court asks: (h)as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free exercise is
not infringed any more than necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to show that the means in which
it is achieving its legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties. In Cantwell, for
example, the Court invalidated the license requirement for the door-to-door
solicitation as it was a forbidden burden on religious liberty, noting that less
drastic means of insuring peace and tranquility existed. As a whole, in
carrying out the compelling state interest test, the Court should give
careful attention to context, both religious and regulatory, to achieve refined
judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.[293]
A. History
Before our country fell under American rule, the blanket of
Catholicism covered the archipelago. There was a union of church and state
and Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars exercised
civil powers.[294] Catholics alone enjoyed the right of engaging in public
ceremonies of worship.[295] Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in
our country under the Spanish rule. Catholicism was in fact protected by
the Spanish Penal Code of 1884 which was in effect in the
Philippines. Some of the offenses in chapter six of the Penal Code entitled
Crimes against Religion and Worship referred to crimes against the state
religion.[296] The coming of the Americans to our country, however, changed
this state-church scheme for with the advent of this regime, the unique
This was followed by the Philippine Independence Law or TydingsMcDuffie Law of 1934 which guaranteed independence to the Philippines
and authorized the drafting of a Philippine constitution. It enjoined
Filipinos to include freedom of religion in drafting their constitution
preparatory to the grant of independence. The law prescribed that
(a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or property
on account of religious belief or mode of worship.[303]
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of
Paris of December 10, 1898, which first introduced religious toleration in
B. Jurisprudence
reference to ones views of his relations to His Creator and to the obligations
they impose of reverence to His being and character and obedience to His
Will. The Beason definition, however, has been expanded in U.S.
jurisprudence to include non-theistic beliefs.
which has for its purpose and effect to advance the states secular
goals, the statute is valid despite its indirect burden on religious
observance, unless the state can accomplish its purpose without
imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d.
563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449)[328] (emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. It also
cited Board of Education v. Allen,[330] which held that in order to
withstand the strictures of constitutional prohibition, a statute must have a
secular legislative purpose and a primary effect that neither advances nor
inhibits religion. Using these criteria in upholding Republic Act No. 3350,
the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from work, or
be dispossessed of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security agreements. . . . The
primary effects of the exemption from closed shop agreements in favor of
members of religious sects that prohibit their members from affiliating with
a labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs, and . . . eliminating to a
certain extent economic insecurity due to unemployment.[331]
The Court stressed that (a)lthough the exemption may benefit those
who are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect.[332] In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden
imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded the
issue of exemption by citing Sherbert which laid down the rule that when
general laws conflict with scruples of conscience, exemptions ought to be
granted unless some compelling state interest intervenes. The Court then
abruptly added that (i)n the instant case, We see no compelling state
interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned
several tests in determining when religious freedom may be validly
limited. First, the Court mentioned the test of immediate and grave
danger to the security and welfare of the community and infringement of
religious freedom only to the smallest extent necessary to justify limitation
of religious freedom. Second, religious exercise may be indirectly burdened
by a general law which has for its purpose and effect the advancement of
the states secular goals, provided that there is no other means by which the
state
can
accomplish
this
purpose
without
imposing
such
burden. Third, the Court referred to the compelling state interest test
which grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned
only for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No.
3350. Upholding religious freedom was a secular purpose insofar as it
relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first two
tests were only mentioned in Victoriano but were not applied by the Court
to the facts and issues of the case. The third, the compelling state interest
test was employed by the Court to determine whether the exemption
provided by Republic Act No. 3350 was not unconstitutional. It upheld the
exemption, stating that there was no compelling state interest to strike it
down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the
compelling state interest test was not appropriate and could not find
application in the Victoriano case. In Sherbert, appellant Sherbert
invoked religious freedom in seeking exemption from the provisions of the
South Carolina Unemployment Compensation Act which disqualified her
from claiming unemployment benefits. It was the appellees, members of the
South Carolina Employment Commission, a government agency, who
propounded the state interest to justify overriding Sherberts claim of
religious freedom. The U.S. Supreme Court, considering Sherberts and the
Commissions arguments, found that the state interest was not sufficiently
compelling to prevail over Sherberts free exercise claim. This situation did
not obtain in the Victoriano case where it was the government itself,
through Congress, which provided the exemption in Republic Act No. 3350
to allow Victorianos exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption
from the questioned law to allow the free exercose of religion as the law in
fact provides such an exemption. In sum, although Victoriano involved a
religious belief and conduct, it did not involve a free exercise issue where
the Free Exercise Clause is invoked to exempt him from the burden imposed
by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,[334] Anucension v.
National Labor Union, et al.,[335] and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church within
the Malacanang security area to pray for an end to violence when they
were barred by the police. Invoking their constitutional freedom of religious
worship and locomotion, they came to the Court on a petition for mandamus
to allow them to enter and pray inside the St. Jude Chapel. The Court was
divided on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that they were
using their religious liberty to express their opposition to the
government. Citing Cantwell, the Court distinguished between freedom to
believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute, but in the nature of things, the
second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom
of belief or choice of their religion, but only in the manner by which they
had attempted to translate the same to action. This curtailment is in
accord with the pronouncement of this Court in Gerona v. Secretary of
Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either
restrains said exercise or even prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners mass action would certainly
disrupt[338] and denied the petition. Thus, without considering the tests
mentioned inVictoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the
established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in
the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983])
should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of
our Bill of Rights. (footnote omitted) Freedom of worship, alongside
with freedom of expression and speech and peaceable assembly
along with the other intellectual freedoms, are highly ranked in
our scheme of constitutional values. It cannot be too strongly stressed
that on the judiciary - even more so than on the other departments - rests
the grave and delicate responsibility of assuring respect for and deference to
such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitously termed by Justice
Holmes as the sovereign prerogative of judgment. Nonetheless, the
presumption must be to incline the weight of the scales of justice on
the side of such rights, enjoying as they do precedence and
primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any illegal acts
committed during the exercise of such basic rights. The sole justification
for a prior restraint or limitation on the exercise of these basic
rights is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest, that
the State has a right (and duty) to prevent (Idem, at pp. 560561).[339] (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the AntiBases Coalition, from the City of Manila to hold a peaceful march and rally
from
the
Luneta
to
the
gates
of
the
U.S.
Embassy. NeverthelessBagatsing was used by Justice Teehankee in his
dissent which had overtones of petitioner German and his companions right
to assemble and petition the government for redress of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.[341] A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case involved
several Jehovahs Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the same
religious freedom issue as in Gerona, the Court this time transported the
grave and imminent danger test laid down in Justice Teehankees dissent
in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave
and imminent, of a serious evil to public safety, public morals, public
health or any other legitimate public interest, that the State has a right
(and duty) to prevent. Absent such a threat to public safety, the expulsion
of the petitioners from the schools is not justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion of
the school population will shake up our part of the globe and suddenly
produce a nation untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for
national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After all,
what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution,
the democratic way of life and form of government, and learn not only the
arts, sciences, Philippine history and culture but also receive training for a
vocation or profession and be taught the virtues of patriotism, respect for
human rights, appreciation of national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court
has feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or respect for duly
constituted authorities.[343]
the Court held that freedom to believe is absolute but freedom to act on
ones belief, where it affects the public, is subject to the authority of the
state. The
commentary
quoted
Justice
Frankfurters
dissent
in Barnette which was quoted in Gerona, viz: (t)he constitutional
provision on religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to
law because of religious dogma.[349] Nevertheless, the Court was quick to
add the criteria by which the state can regulate the exercise of religious
freedom, that is, when the exercise will bring about the clear and present
danger of some substantive evil which the State is duty bound to prevent,
i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioners freedom of speech
as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions
may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion from
this kind of attack.
The Court then called to mind the clear and present danger test first
laid down in the American Bible Society case and the test of immediate
and grave danger with infringement only to the smallest extent necessary
to avoid danger in Victoriano and pointed out that the reviewing board
failed to apply the clear and present danger test. Applying the test, the
Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of
harm the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already
on ground.
Replying to the challenge on the applicability of the clear and present
danger test to the case, the Court acknowledged the permutations that the
test has undergone, but stressed that the test is still applied to four types of
speech: speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of information
that endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which concerns
speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and
disturb terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as
holding that religious freedom cannot be invoked to seek exemption from
compliance with a law that burdens ones religious exercise. It also
reiterated the clear and present danger test in American Bible
Societyand the grave and imminent danger in Victoriano, but this time
clearly justifying its applicability and showing how the test was applied to
the case.
In sum, the Philippine Supreme Court has adopted a posture
of not invalidating a law offensive to religious freedom, but carving
out an exception or upholding an exception to accommodate
religious exercise where it is justified.[353]
xxx
xxx
2. Establishment Clause
It is obvious that while the issuance and sale of the stamps in question may
be said to be inseparably linked with an event of a religious character, the
resulting propaganda, if any, received by the Roman Catholic Church, was
not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply
On the other hand, the prevailing five other members of the Court Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino approached the case from a non-establishment perspective and upheld the
law as a safeguard against the constant threat of union of church and state
that has marked Philippine history. Justice Makasiar stated: To allow an
ecclesiastic to head the executive department of a municipality is to permit
the erosion of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion which the
constitutional provision seeks to enforce and protect. Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative
Code and declared respondent priest ineligible for the office of municipal
mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals[365] is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court plainly violates the law
it professes to administer, or is in conflict with the law of the land, it will
not be followed by the civil courts. . . In some instances, not only have the
civil courts the right to inquire into the jurisdiction of the religious tribunals
and the regularity of their procedure, but they have subjected their
decisions to the test of fairness or to the test furnished by the constitution
and the law of the church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,[368] declared that the rule in property controversies
within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is
that the rules for resolving such controversies should be those of any
voluntary association. If the congregation adopts the majority rule then the
majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed. Applying
these rules, Fonacier lost the case. While the Court exercised jurisdiction
over the case, it nevertheless refused to touch doctrinal and disciplinary
differences raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church
those allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts.[369]
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained
in every organic Act of the Philippines under the American regime. When
the delegates of the 1934 Constitutional Convention adopted a Bill of Rights
in the 1935 Constitution, they purposely retained the phraseology of the
religion clauses in the First Amendment as contained in the Jones Law in
order to adopt its historical background, nature, extent and limitations. At
that time, there were not too many religion clause cases in the United
States as the U.S. Supreme Court decided an Establishment Clause issue
only in the 1947 Everson case. The Free Exercise Clause cases were also
scarce then. Over the years, however, with the expanding reach of
government regulation to a whole gamut of human actions and the growing
plurality and activities of religions, the number of religion clause cases in
the U.S. exponentially increased. With this increase came an expansion of
the interpretation of the religion clauses, at times reinforcing prevailing
case law, at other times modifying it, and still at other times creating
contradictions so that two main streams of jurisprudence had become
identifiable. The first stream employs separation while the second
employs benevolent
neutrality in
interpreting
the
religious
clauses. Alongside this change in the landscape of U.S. religion clause
jurisprudence, the Philippines continued to adopt the 1935 Constitution
religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between
the two streams of U.S. jurisprudence. One might simply conclude that
the Philippine Constitutions and jurisprudence also inherited the disarray
of U.S. religion clause jurisprudence and the two identifiable streams; thus,
when
a
religion
clause
case
comes
before
the
Court,
a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the
Court
in Everson supports
the separationist approach,
Philippine
jurisprudence should also follow this approach in light of the Philippine
religion clauses history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently burdens his
religious exercise, he faces an almost insurmountable wall in convincing the
Court that the wall of separation would not be breached if the Court grants
him an exemption. These conclusions, however, are not and were
never warranted by the 1987, 1973 and 1935 Constitutions as shown
by other provisions on religion in all three constitutions. It is a
cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be
reconciled and harmonized in a manner that will give to all of them full
force and effect.[377] From this construction, it will be ascertained that
the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing
the constitution.[378]
every prejudice, every aspiration, and every moral discernment has access
to the public square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including opinion shaped by,
or espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited
from determining which convictions and moral judgments may be proposed
for public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this
democratic governance.[417] Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median
groups.[418] Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of religious
freedom not only for a minority, however small- not only for a majority,
however large- but for each of us -- the majority imposes upon itself a selfdenying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.[419] In the realm of religious
exercise, benevolent
neutrality that
gives
room
foraccommodation carries out this promise, provided the compelling
interests of the state are not eroded for the preservation of the state is
necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States
and the Philippines to accommodate those minority religions which are
politically powerless. It is not surprising that Smith is much criticized for
it blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, (t)he law is the witness and deposit of our moral life. [420] In
a liberal democracy, the law reflects social morality over a period of
time.[421] Occasionally though, a disproportionate political influence might
cause a law to be enacted at odds with public morality or legislature might
fail to repeal laws embodying outdated traditional moral views.[422] Law has
also been defined as something men create in their best moments to protect
themselves in their worst moments.[423]Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a
given time. After all, the life of the law...has been experience, in the words
of Justice Holmes. This is not to say though that law is all of morality. Law
deals with the minimum standards of human conduct while morality is
concerned with the maximum. A person who regulates his conduct with the
sole object of avoiding punishment under the law does not meet the higher
moral standards set by society for him to be called a morally upright
person.[424] Law also serves as a helpful starting point for thinking about a
proper or ideal public morality for a society[425] in pursuit of moral
progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the
relationship between law and public morality. We held that under the
utilitarian theory, the protective theory in criminal law, criminal law is
founded upon the moral disapprobation x x x of actions which are
immoral,i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society. This disapprobation is inevitable to the extent
that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of
punishment.[427] Stated otherwise, there are certain standards of behavior
or moral principles which society requires to be observed and these form the
bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole. [428] Thus, even if all involved
in the misdeed are consenting parties, such as in the case at bar, the injury
done is to the public morals and the public interest in the moral
order.[429] Mr. Justice Vitug expresses concern on this point in his separate
opinion. He observes that certain immoral acts which appear private and
not harmful to society such as sexual congress between a man and a
prostitute, though consensual and private, and with no injured third party,
remains illegal in this country. His opinion asks whether these laws on
private morality are justified or they constitute impingement on ones
freedom of belief. Discussion on private morality, however, is not material
to the case at bar for whether respondents conduct, which constitutes
concubinage,[430] is private in the sense that there is no injured party or the
offended spouse consents to the concubinage, the inescapable fact is that the
legislature has taken concubinage out of the sphere of private morals. The
legislature included concubinage as a crime under the Revised Penal Code
and the constitutionality of this law is not being raised in the case at
bar. In the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape[431] where consent of the supposed victim negates the crime. If at all,
the consent or pardon of the offended spouse in concubinage negates the
prosecution of the action,[432] but does not alter the legislatures
characterization of the act as a moral disapprobation punishable by
law. The separate opinion states that, (t)he ponencia has taken pains to
distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only
concern itself with secular morality. The Court does not draw this
distinction in the case at bar. The distinction relevant to the case is not, as
averred and discussed by the separate opinion, between secular and private
morality, but between public and secular morality on the one hand, and
religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs
which are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant punishment in
the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and
observe honesty and good faith.
xxx
xxx
xxx
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold
numbers of moral wrongs which is impossible for human foresight
to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary
line between morality and law? The answer is that, in the last analysis,
every good law draws its breath of life from morals, from those
principles which are written with words of fire in the conscience of man. If
this premise is admitted, then the proposed rule is a prudent earnest of
justice in the face of the impossibility of enumerating, one by one, all wrongs
which cause damages. When it is reflected that while codes of law and
statutes have changed from age to age, the conscience of man has remained
fixed to its ancient moorings, one can not but feel that it is safe and
salutary to transmute, as far as may be, moral norms into legal
rules, thus imparting to every legal system that enduring quality which
ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social
order than that a person may with impunity cause damage to his fellowmen so long as he does not break any law of the State, though he may be
defying the most sacred postulates of morality. What is more, the victim
loses faith in the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826
of the German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in
our constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. Religious
morality proceeds from a persons views of his relations to His Creator and
to the obligations they impose of reverence to His being and character and
obedience to His Will, in accordance with this Courts definition of religion
in American Bible Society citing Davis. Religion also dictates how we
ought to live for the nature of religion is not just to know, but often, to act
in accordance with mans views of his relations to His Creator.[434] But the
Establishment Clause puts a negative bar against establishment of this
morality arising from one religion or the other, and implies the affirmative
establishment of a civil order for the resolution of public moral
disputes. This agreement on a secular mechanism is the price of ending the
war of all sects against all; the establishment of a secular public moral
order is the social contract produced by religious truce. [435]
Thus, when the law speaks of immorality in the Civil Service Law or
immoral in the Code of Professional Responsibility for lawyers[436], or
public morals in the Revised Penal Code,[437] or morals in the New Civil
Code,[438] or moral character in the Constitution,[439] the distinction
between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind. [440] The morality referred to
in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. Religious teachings as expressed in public debate
may influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms.[441]Otherwise, if
government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed
by a religious belief, i.e., to a compelled religion, anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support
the policy. As a result, government will not provide full religious freedom
for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this
policy of neutrality.[442]
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because it
is detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered
a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes
with a compelling influence on them; the human mind endeavors to regulate
the temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven.[443] Succinctly put, a law could be religious
or Kantian or Aquinian or utilitarian in its deepest roots, but it must have
an articulable and discernible secular purpose and justification to pass
scrutiny of the religion clauses. Otherwise, if a law has an apparent secular
purpose but upon closer examination shows a discriminatory and
prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu Aye,
Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitutions religion clauses prescribe not a strict but
a benevolent
neutrality. Benevolent
neutrality recognizes
that
government must pursue its secular goals and interests but at the same
time strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitugs separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . . moral laws are justified only
to the extent that they directly or indirectly serve to protect the interests of
the larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the purpose for
which they are enacted would, a departure be justified. In religion clause
parlance, the separate opinion holds that laws of general applicability
governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws
(which are the Civil Service Law and the laws on marriage) would erode the
appropriate to the case at bar which involves purely religious conduct. The
dissent also cites Reynolds in supporting its conclusion that respondent is
guilty
of
disgraceful
and
immoral
conduct. The Reynolds
ruling, however, was reached with a strict neutrality approach, which is
not the approach contemplated by the Philippine constitution. As discussed
above,
Philippine
jurisdiction
adopts benevolent
neutrality in
interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality
does
not
reflect
the
constitutional
intent
of
employingbenevolent neutrality in interpreting the Philippine religion
clauses. His dissent avers that respondent should be held administratively
liable not for disgraceful and immoral conduct but conduct prejudicial to
the best interest of the service as she is a necessary co-accused of her
partner in concubinage. The dissent stresses that being a court employee,
her open violation of the law is prejudicial to the administration of justice.
Firstly, the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of conduct prejudicial to
the best interest of the service. In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondents plea of religious freedom cannot prevail
without so much as employing a test that would balance respondents
religious freedom and the states interest at stake in the case at bar. The
foregoing discussion on the doctrine of religious freedom, however, shows
that with benevolent neutrality as a framework, the Court cannot simply
reject respondents plea of religious freedom without even subjecting it to
the compelling state interest test that would balance her freedom with the
paramount interests of the state. The strict neutrality employed in the cases
the dissent cites -Reynolds, Smith and People v. Bitdu decided before
the 1935 Constitution which unmistakably shows adherence to
benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v.
Judge Nabdar J. Malik[451] cited in Mr. Justice Carpios dissent decisive of
the immorality issue in the case at bar. In that case, the Court dismissed
the charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three
children because it (was) not immoral by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed). Putting
the quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar. Immediately
prior to the portion quoted by the dissent, the Court stressed, viz: (s)ince
Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal
Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy shall not apply to a person married x x x under Muslim Law, it is
not immoral by Muslim standards for Judge Malik to marry a second time
while his first marriage exists.[452] It was by law, therefore, that the
Muslim conduct in question was classified as an exception to the crime of
bigamy and thus an exception to the general standards of morality. The
constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic
case. Thus, the Court did not determine whether P.D. No. 1083 suffered
from a constitutional infirmity and instead relied on the provision excepting
the challenged Muslim conduct from the crime of bigamy in holding that the
challenged act is not immoral by Muslim standards. In contradistinction, in
the case at bar, there is no similar law which the Court can apply as basis
for treating respondents conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free Exercise
Clause is being invoked to justify exemption.
The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest
test from a benevolent neutrality stance - i.e. entertaining the
possibility that respondents claim to religious freedom would warrant
carving out an exception from the Civil Service Law; necessarily, her
defense of religious freedom will be unavailing should the government
succeed in demonstrating a more compelling state interest.
Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in
Complete Works of Josephus, p. 500.
[35] Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
[36] It may also be said that Moses actually used the concept of a single allpowerful God as a means of unifying the Hebrews and
establishing them as a nation, rather than vice versa. What is
important to note, however, is that the monotheism which served
as foundation of Christianity of western civilization with its
consequences in church-state relations was established by Moses
of the Bible, not the Moses of history. Pfeffer, L., supra, p. 5.
[37] Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949),
p. 24.
[38] Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[39] Pfeffer, L., supra, p. 7.
[40] Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions
(1934), p. 108.
[41] Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[42] Pfeffer, L., supra, p. 13.
[43] Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian
Church (1940), p. 108.
[44] Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45] Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the
Great, 14th ed., V, p. 258.
[46] Pfeffer, L., supra, p. 22.
[47] Pfeffer, L., supra, p. 23.
[48] Greene, E., Religion and the State (1941), p. 8.
[49] Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luthers
Primary Works (1885), pp. 194-185.
[50] Pfeffer,
L., supra, p. 23, citing Acton, History of Freedom in
Chrisitianity, in Essays on Freedom and Power (1949), p. 103.
[51] Pfeffer, L., supra, pp. 24-25.
[52] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[53] Greene, E., supra, p. 9.
[54] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
[55] Pfeffer, L., supra, p. 26.
[56] Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church
and State in England (1950), p. 93.
[57] Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949), pp.
674-675 and Garbett, C., pp. 61-62.
[58] Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents,
130-135.
[59] Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p.
243.
[60] Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[61] Everson v.Board of Education of the Township of Ewing, et al., 330 U.S.
1 (1947), pp. 8-9.
[62] Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
[63] Pfeffer, L., supra, p. 30.
[64] Beth, L., American Theory of Church and State (1958), p. 3.
[65] Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[67] Pfeffer, L., supra, pp. 92-93.
[68] Pfeffer, L., supra, p. 96.
[69] Pfeffer, L., supra, p. 95
[70] Another estimate of church membership in 1775 is that in none of the
colonies was membership in excess of 35 percent of the population.
(Beth, L., American Theory of Church and State [1958], p. 73.)
[71] Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy
Making, Second Edition (1980), p. 1276.
[72] Pfeffer, L., supra, pp. 96.
[73] Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[74] Pfeffer, L., supra, p. 93.
[75] Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb,
S.H., The Rise of Religious Liberty in America (1902), p. 485.
[76] Pfeffer, L., supra, p. 85.
[77] Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
[78] Pfeffer, L., supra, p. 87.
[79] Pfeffer, L., supra, p. 86.
[80] Pfeffer, L., supra, pp. 88-89.
[81] Pfeffer, L., supra, p. 101.
[82] Pfeffer, L., supra, p. 99.
[83] Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
Government (edited by C.B: Macpherson), pp. 8-10.
[34]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
Buzzard, L., Ericsson, S., supra, p. 60.
[248] Kelley, D., supra, p. 1189.
[249] Monsma, S., supra, p. 74.
[250] Id. at 75.
[251] Smith, S., supra, p. 149, 159.
[252] Drakeman, supra, p. 54.
[253] Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254] Smith, S., supra, p. 149, 159.
[255] Id. at 149, 159-160.
[256] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257] Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and Roemer:
From Separation to Dtente in Church-State Relations, 55 North
Carolina Law Review (April 1977), 563-75.
[258] Buzzard, L., Ericsson, S., supra, p. 51.
[259] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[260] Buzzard, L., Ericsson, S., supra, p. 61.
[261] Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262] Kelley, D., supra, p. 34.
[263] Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion
(1970), p. 21.
[264] Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
Religion (1963), pp. xxvii, xxviii.
[265] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
[266] Berman, H., supra, p. 162.
[267] The Constitution and Religion, p. 1569.
[268] McCoy, T., supra, p. 1335, 1338-1339.
[269] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 688.
[270] Id.
[271] Id. at 689.
[272] Id. at 690-694, 715.
[273] Id. at 686.
[274] Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663,
679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S.
668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).
[275] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 139, 184.
[276] Id. at 174.
[277] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 631.
[278] Buzzard, L., Ericsson, S., supra, pp. 61-62.
[279] Emanuel,
S., supra, pp. 633-634, citing Tribe, L., American
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp.
1067-1069.
[280] Id. at 633.
[281] Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[282] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 715.
[283] Buzzard, L., Ericsson, S., supra, pp. 61-63.
[284] McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, Harvard Law Review , vol. 103 (1990), p. 1410, 14167.
[285] Buzzard, L., Ericsson, S., supra, p. 70.
[286] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 735.
[287] Buzzard, L., Ericsson, S., supra, pp. 68-71.
[288] Lupu, I., supra, p. 743, 775.
[289] Id. at 775.
[290] Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[291] Buzzard, L., Ericsson, S., supra, p. 68.
[292] Lupu, I., supra, p. 743, 776.
[293] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
[294] Martinez, H., The High and Impregnable Wall of Separation Between
Church and State, Philippine Law Journal (1962), vol. 37(5), p.
748, 766.
[295] Article II.
[296] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), p. 284.
[246]
[247]
Coquia, J., Church and State Law and Relations, p. 52, citing Article X
of the Treaty of Paris. The territories referred to were Cuba,
Puerto Rico, Guam, the West Indies and the Philippine Islands.
[298] Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la
Republica Filipina promulgada el dia 22 de Enero de 1899
(Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
[299] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 13, 148.
[300] Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With
Philippine Organic Laws 10.
[301] 25 Phil. 273 (1913).
[302] Id. at 276.
[303] Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a),
73rd Congress (1934).
[304] Laurel, S., Proceedings of the Philippine Constitutional Convention, vol.
III (1966), pp. 654-655.
[305] Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p.
164.
[306] Id. at 150.
[307] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
[308] Baddiri, E., Islam and the 1987 Constitution: An Issue on the Practice
of Religion, 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed
Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978).
[309] Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310] 64 Phil 201 (1937).
[311] 101 Phil. 386 (1957).
[312] Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[313] 106 Phil. 2 (1959).
[314] Id. at 9-10.
[315] Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 225, Footnote 38.
[316] 319 U.S. 103.
[317] 234 SCRA 630 (1994).
[318] 493 U.S. 378 (1990).
[319] 106 Phil. 2 (1959).
[320] 106 Phil. 2 (1959), p. 10.
[321] Id. at 11-12.
[322] Id. at 14.
[323] Id. at 25.
[324] Id. at 24-25.
[325] 110 Phil 150.
[326] 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93
(1974); Gonzalez v. Central Azucarera de Tarlac Labor Union, 139
SCRA (1985).
[327] Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54
(1974), p. 72.
[328] Id. at 73.
[329] 64 Phil 201.
[330] 392 US 236.
[331] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332] Id. at 75.
[333] Id.
[334] 61 SCRA 93 (1974).
[335] 80 SCRA 350 (1977).
[336] 139 SCRA 30 (1985).
[337] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing
Cantwell v. Connecticut, 310 U.S. 296.
[338] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
[339] German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[340] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting
Opinion of Justice Teehankee.
[341] 219 SCRA 256 (1993), March 1, 1993.
[342] Id. at 270-271.
[343] Id. at 271-272.
[344] Id. at 272.
[345] Id. at 272-273.
[346] Id. at 270.
[347] Id. at 269.
[348] 259 SCRA 529 (1996).
[349] Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[350] Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[351] Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff,
Speech, Harm and Self-Government: Understanding the Ambit of
the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p.
1453 (1991).
[297]
Id.
Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354] This argument was a central theme in John Lockes A Letter Concerning
Toleration, which strongly influenced the thinking of many
Americans, including Jefferson and Madison. (Smith, S., The Rise
and Fall of Religious Freedom in Constitutional Discourse,
University of Pennsylvania Law Review, vol. 140[1], November
1991, p. 149, 155).
[355] Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 233.
[356] Id. at 234.
[357] 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the
Philippines: A Commentary (1987), p. 234.
[358] An Act Appropriating the Sum of Sixty Thousand Pesos and Making the
Same Available out of any Funds in the Insular Treasury not
otherwise Appropriated for the Cost of Plates and Printing of
Postage Stamps with New Designs, and for other Purposes.
[359] Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360] Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361] 104 SCRA 510 (1981).
[362] 86 SCRA 413 (1978).
[363] 367 U.S. 488 (1961).
[364] Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365] 96 Phil. 417 (1955).
[366] 45 Am. Jur. 77.
[367] 96 Phil 417 (1955), p. 426.
[368] Id. at 441, citing American authorities.
[369] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370] Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371] Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372] Walz v. Tax Commission, supra, p. 668.
[373] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
[374] Drakeman, D., supra, p. 127.
[375] Buzzard, L. and Ericsson, S., supra, p. 75.
[376] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), pp. 288-289.
[377] Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378] Martin, Statutory Construction (1979), p. 210.
[379] Aruego, J., supra, pp. 331-337.
[380] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the
Constitutional Convention of the Philippines, vol. 4, pp. 1550,
1552.
[381] Aruego, J., supra, p. 337.
[382] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), p. 153.
[383] Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, p. 1539.
[384] Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
[385] Aruego, J., supra, pp. 340-345.
[386] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention Record, vol. 10 (1967), p. 29.
[387] Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp.
627-629.
[388] Martin, supra, p. 218.
[389] Aglipay v. Ruiz, supra, p. 206.
[390] Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1
(1952), pp. 269-270.
[391] Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems
of the Committee on Church and State of the 1971 Constitutional
Convention, p. 18.
[392] Bernas, J., Background paper for reconsideration of the religion
provisions of the constitution (1971), pp. 41-43.
[393] Tingson, J., Report of the Committee on Church and State of the 1971
Constitutional Convention Report, p. 5.
[394] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406,
citing Records of the Constitutional Commission, vol. II, pp. 193194.
[395] Records of the Constitutional Commission, vol. 4, p. 362.
[396] Id. at 358.
[397] Id. at 359.
[398] Id. at 973.
[399] Records of the Constitutional Commission, vol. 1, p. 102.
[352]
[353]
Article 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient,
provided that are not contrary to law,morals, good customs,
public order, or public policy.
Article 1409. The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy; x x x (emphasis supplied)
[439] Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as
part of the curricula.
They shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the
rights and duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and
technological
knowledge,
and
promote
vocational
efficiency. (emphasis supplied)
[440] To illustrate the distinction between public or secular morality and
religious morality, we take the example of a judge. If the public
morality of a society deems that the death penalty is necessary to
keep society together and thus crystallizes this morality into law,
a judge might find himself in a conflict between public morality
and his religious morality. He might discern that after weighing
all considerations, his religious beliefs compel him not to impose
the death penalty as to do so would be immoral. If the judge
refuses to impose the death penalty where the crime warrants it,
he will be made accountable to the state which is the authority in
the realm of public morality and be held administratively liable
for failing to perform his duty to the state. If he refuses to act
according to the public morality because he finds more compelling
his religious morality where he is answerable to an authority he
deems higher than the state, then his choice is to get out of the
public morality realm where he has the duty to enforce the public
morality or continue to face the sanctions of the state for his
failure to perform his duty. See Griffin, L., The Relevance of
Religion to a Lawyers Work: Legal Ethics, Fordham Law Review
(1998), vol. 66(4), p. 1253 for a discussion of a similar dilemma
involving lawyers.
[441] Sullivan, K., supra, p. 196.
[442] Smith, S., supra, pp. 184-185. For a defense of this view, see William P.
Marshall, We Know It When We See It: The Supreme Court and
Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended
criticism of this position, see Steven D. Smith, Symbols,
Perceptions, and Doctrinal Illusions: Establishment Neutrality
and the No Establishment Test, 86 Mich. L. Rev. 266 (1987).
[443] Ostrom, V., Religion and the Constitution of the American Political
System, Emory Law Journal, vol. 39(1), p. 165, citing 1 A.
Tocqueville, Democracy in America (1945), p. 305.
[444] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[445] Devlin, P., supra, p. 22.
[446] 329 U.S. 14 (1946).
[447] Cleveland v. United States, 329 U.S. 14, p. 16.
[448] Reynolds v. United States, supra, p. 164.
[449] Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[450] Id.
[451] 226 SCRA 193 (1993).
[452] Id. at 199.
[453] Annexes A and B of the Report and Recommendation of Executive
Judge Bonifacio Sanz Maceda.
[454] Cruz, I., supra, p. 176.
EN BANC
RE: REQUEST OF MUSLIM
EMPLOYEES IN THE
DIFFERENT COURTS IN
ILIGAN CITY (RE: OFFICE
HOURS)
Present:
DAVIDE, JR., C.J.,
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
b.
c.
d.
e.
f.
CORONA,
CARPIO
MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
Promulgated:
December 14, 2005
x------------------------------------ --------------x
RESOLUTION
CALLEJO, SR., J.:
In their Letter dated November 19, 2001 addressed to
Executive Judge Valerio M. Salazar, Regional Trial Court of Iligan
City, several Muslim employees in the different courts in the said
city request that they be allowed to enjoy the following privileges:
1.
2.
3.
This provision contains two aspects: (1) the nonestablishment clause; and (2) the free exercise clause. The subject
requests are based on the latter and in interpreting this clause (the
free exercise clause) embodied in the Constitution, the Court has
consistently adhered to the doctrine that:
public is still assured of the core working hours of eight oclock in the
morning to five oclock in the afternoon;
3)
4)
5)
6)
7)
SO ORDERED.
[1] Recognizing Muslim Holidays and Providing for the Implementation, September
12, 1973.
Amending Section 2 of Presidential Decree No. 291 and Inserting a New Section on
the Regulation of Office Hours in the Month of Ramadan thereby Changing the
Numbers of All Subsequent Sections, October 28, 1973.
[3] The provision reads:
Sec. 5. Officers and employees of all departments and agencies except
those covered by special laws shall render not less than eight hours of work a
day for five days a week or a total of forty hours a week, exclusive of time for
lunch. As a general rule, such hours shall be from eight oclock in the morning
to twelve oclock noon and from one oclock to five oclock in the afternoon on
all days except Saturdays, Sundays and Holidays.
[4] Administrative Code of 1987.
[5] Civil Service Commission Resolution No. 00-0227, supra. These conditions are:
1)
Heads of departments, offices and agencies shall have the authority to
approve office working hours, provided that in such working hours,
officials and employees shall render not less than eight hours a day for
five days a week for a total of forty hours;
[2]
2)
The flexible working hours shall not start earlier than 7:00 oclock in the
morning and end later that 7:00 oclock in the evening; hence, the
SYLLABUS
CRUZ, J.,
dissenting:
chanro b1es
vi rtua l
1aw
libra ry
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their
return to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino
said:
In the interest of the safety of those who will take
the death of Mr. Marcos in widely and
passionately conflicting ways, and for the
tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be
allowed to be brought to our country until such
time as the government, be it under this
administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p.
1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection of
the Constitution and all of the rights guaranteed to Filipinos under
the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R.
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc
and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar
the return of the remains of Mr. Marcos, and the other petitioners,
to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label
'right to return', including the label 'return of Marcos' remains, is in
reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion
for Reconsideration be denied for lack of merit.
Separate Opinions
to still prevail; the answer should be in the negative if we are to avoid the
completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his
birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right
to be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is
built on the fundamental assumption (so we believe) that the Constitution
and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country
would pose a serious threat to national security and public safety. What
threat? As pointed out in my dissenting opinion, the second cogent and
decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we
have are general conclusions of national security and public safety' in
avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth,
where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity
of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests
and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the
first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to
be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the
right of every Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is finally laid to rest
in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country,
but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country
now. Without in any way affecting my respect and regard for my brethren
and sisters in the majority, I am deeply concerned and greatly disturbed
that, with their decision banning a dead Marcos from burial in this country,
they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation,
Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God
save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Separate Opinions
CRUZ, J., dissenting:
It is well to note that the Bill of Rights stands primarily, a limitation not
only against legislative encroachments on individual liberties, but more so,
against presidential intrusions. And especially so, because the President is
the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.
Thirdly, reconciliation can proceed at a much faster pace if the petition for
the return is granted. To refuse the request can mean a hardening of
resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.
That "[t]he threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
Finally, the entire world will surely applaud our government's act of mercy.
As Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
in my dissenting opinion, includes the right to return to, die and be buried
in this country? The answer should be in the negative if the Constitution is
to still prevail; the answer should be in the negative if we are to avoid the
completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his
birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right
to be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is
built on the fundamental assumption (so we believe) that the Constitution
and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country
would pose a serious threat to national security and public safety. What
threat? As pointed out in my dissenting opinion, the second cogent and
decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we
have are general conclusions of national security and public safety' in
avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth,
where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity
of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests
and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the
first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to
be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the
right of every Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is finally laid to rest
in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country,
but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country
now. Without in any way affecting my respect and regard for my brethren
and sisters in the majority, I am deeply concerned and greatly disturbed
that, with their decision banning a dead Marcos from burial in this country,
they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation,
Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God
save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the exPresident's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by
direct grant or by implication, the President's supposed "residual" power to
forbid citizens from entering the motherland reiterated in the resolution of
the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that
the President, upon whom executive power is vested, has
unstated residual powers which are implied from the
grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The
powers of the President are not limited to what are
expressly enumerated in the article on the Executive
Department and in scattered provisions of the
Constitution. This, notwithstanding the avowed intent of
the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so.
It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not
only against legislative encroachments on individual liberties, but more so,
against presidential intrusions. And especially so, because the President is
the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an
illegitimate President, does not, so I submit, reinforce alleged fears of a
massive destabilization awaiting the nation. The military has said over and
over that Marcos followers are not capable of successful destabilization
effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the
political and economic stability of the nation, as well as the Government's
capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President
has no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let
the matter rest.
them. These inherent powers are such powers as are necessary for
the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient
and suitable to the execution of their granted powers; and include
the power to maintain the courts jurisdiction and render it effective
in behalf of the litigants.
9. ID.; ID.; ID.; JURISDICTION IN AID OF ITS AUTHORITY
OVER MUNICIPAL MATTER. While a court may be expressly
granted the incidental powers necessary to effectuate its
jurisdiction, a grant of jurisdiction, in the absence of prohibitive
legislation, implies the necessary and usual incidental powers
essential to effectuate it, and, subject to existing laws and
constitutional provisions, every regularly constituted court has the
power to do all things that are reasonably necessary for the
administration of justice within the scope of its jurisdiction. Hence,
demands, matters, or questions ancillary or incidental to, or
growing out of, the main action, and coming within the above
principles, may be taken cognizance of by the court and determined,
since such jurisdiction is in aid of its authority over the principal
matter, even though the court may thus be called on to consider
and decide matters which, as original causes of action, would not be
within its cognizance.
10. ID.; ID.; ID.; PARTY LITIGANTS WHOSE ACTS RENDER
COURTS JURISDICTION INEFFECTIVE MAY BE SUBJECTED
TO COERCIVE MEASURES. A court has the inherent power to
make interlocutory orders necessary to protect its jurisdiction. Such
being the case, with more reason may a party litigant be subjected
to proper coercive measures where he disobeys a proper order, or
commits a fraud on the court or the opposing party, the result of
which is that the jurisdiction of the court would be ineffectual.
What ought to be done depends upon the particular circumstances.
11. ID.; ID.; ID.; CASE AT BAR. Turning now to the case at bar,
petitioner does not deny and, as a matter of fact, even made a
public statement that she had every intention of leaving the
country allegedly to pursue higher studies abroad. We uphold the
course of action adopted by the Sandiganbayan in taking judicial
notice of such fact of petitioners plan to go abroad and in thereafter
issuing sua sponte the hold departure order, in justified consonance
with our preceding disquisition. To reiterate, the hold departure
order is but an exercise of respondent courts inherent power to
preserve and to maintain the effectiveness of its jurisdiction over
the case and the person of the accused.
12. ID.; BAIL; A PERSON ADMITTED TO BAIL MAY BE
PROHIBITED FROM LEAVING THE COUNTRY. It will be
recalled that petitioner has posted bail which we have declared
legally valid and complete despite the absence of petitioner at the
time of filing thereof, by reason of the peculiar circumstances and
grounds hereinbefore enunciated and which warrant a relaxation of
the aforecited doctrine in Feliciano. Perforce, since under the
obligations assumed by petitioner in her bail bond she holds herself
amenable at all times to the orders and processes of the court, she
may legally be prohibited from leaving the country during the
pendency of the case.
13. ID.; CIVIL PROCEDURE; SUPREME COURT WILL NOT
ENTERTAIN DIRECT RESORT TO IT WHERE RELIEF IS
AVAILABLE IN LOWER COURTS. We discern in the
proceedings in this case a propensity on the part of petitioner, and,
for that matter, the same may be said of a number of litigants who
initiate recourses before us, to disregard the hierarchy of courts in
our judicial system by seeking relief directly from this Court
despite the fact that the same is available in the lower courts in the
exercise of their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice must be
stopped, not only because of the imposition upon the precious time
of this Court but also because of the inevitable and resultant delay,
intended or otherwise, in the adjudication of the case which often
has to be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to resolve
the issues since this Court is not a trier of facts. We, therefore,
reiterate the judicial policy that this Court will not entertain direct
resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for
the exercise of our primary jurisdiction.
14. ID.; ID.; ID.; CASE AT BAR. Where, as in the present case, a
hold departure order has been issued ex parte or motu proprio by
said court, the party concerned must first exhaust the appropriate
remedies therein, through a motion for reconsideration or other
proper submissions, or by the filing of the requisite application for
travel abroad. Only where all the conditions and requirements for
the issuance of the extraordinary writs of certiorari, prohibition or
mandamus indubitably obtain against a disposition of the lower
courts may our power of supervision over said tribunals be invoked
through the appropriate petition assailing on jurisdictional or
clearly valid grounds their actuations therein.
RESOLUTION
REGALADO, J.:
Filed directly with the Court, ostensibly as an incident in the
present special civil action, is petitioner's so-called "Motion to
Restrain the Sandiganbayan from Enforcing its Hold Departure
Order with Prayer for the Issuance of a Temporary Restraining
Order and/or Preliminary Injunction, with Motion to Set Pending
Incident for Hearing." Despite the impropriety of the mode adopted
in elevating the issue to us, as will hereinafter be discussed, we will
disregard the procedural gaffe in the interest of an early resolution
hereof.
The chronology of events preceding the instant motion is best
summarized to readily provide a clear understanding and
perspective of our disposition of this matter, thus:
1. On May 13, 1991, an information dated May 9, 1991 and
docketed as Criminal Case No. 16698 was filed against petitioner
with the Sandiganbayan for alleged violation of Section 3(e),
Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act.
2. On May 14, 1991, an order of arrest was issued in said case
against herein petitioner by Presiding Justice Francis E.
Garchitorena of the Sandiganbayan, with bail for the release of the
accused fixed at P15,000.00. 1
3. On even date, petitioner filed an "Urgent Ex-parte Motion for
Acceptance of Cash Bail Bond for and in Behalf of Dr. Miriam
Defensor-Santiago," 2 which pertinently states in part:
xxx xxx xxx
3. As a result of the vehicular collision, she
suffered extensive physical injuries which
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos,
Jr., JJ., concur.
# Footnotes
1 Annex 1, Consolidated Comment of Public
Respondents.
2 Annex 2, id.
3 Rollo, Vol. II, 594.
4 Official Receipts Nos. 4292925, 5775510 and
3276456; Rollo, 595.
5 Annex 3, Consolidated Comment of Public
Respondents.
6 Annex 4, id.
7 Annex 5, id.
8 Rollo, Vol. II, 599.
9 Ibid., Vol. I, 495.
10 Rollo, 644.
11 Rollo, 573.
12 Crespo vs. Mogul, et al., 151 SCRA 462 (1987).
13 Feliciano vs. Pasicolan, et al., 112 Phil. 781 (1961);
Mendoza vs. Court of First Instance of Quezon, et al., 51
SCRA 369 (1973).
14 Capistrano, et al. vs. Pea, et al., 78 Phil. 749 (1947).
15 State vs. Neveau, 295 NW 718.
16 Poole, et al., vs. Giles, et al., 248 SW 2d 464.
17 42 Am Jur 2d, Injunctions S291.
18 Rochelle vs. State, 75 So. 2d 268.
19 43A CJS, Judgments 617.
20 Chasnoff vs. Porto, et al., 99 A 2d 189.
21 A.S. Watson & Co., Ltd. vs. Enriquez, et al., 1 Phil.
480 (1902).
22 Crisostomo vs. Securities and Exchange Commission,
et al., 179 SCRA 146 (1989).
23 Peza, et al. vs. Alikpala, etc., et al., 160 SCRA 31
(1988); Aparicio vs. Andal, et al., 175 SCRA 569 (1989).
24 21 CJS, Courts 41.
25 State ex rel. Andrews, et al. vs. Superior Court of
Maricopa County, et al., 5 P 2d 192.
26 In re Integration of Nebraska State Bar Association,
114 ALR 151.
27 Fuller vs. State, 57 So. 806.
28 Clark vs. Austin, 101 SW 2d 977.
29 21 CJS, Courts 134.
30 Ibid., 136-137.
31 In re Slimmer's Estate 169 NW 536.
32 142 SCRA 149 (1986).
33 Silverio vs. Court of Appeals, et al., 195 SCRA 760
(1991).
THIRD DIVISION
[G.R. No. 141529. June 6, 2001]
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs.
COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and
travel, are being invoked to set aside two resolutions of the Court of
Appeals which fixed bail at P5,500,000.00 and imposed conditions
on change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00,
petitioner was convicted of estafa by the Regional Trial Court of
Pasig City[1] and was sentenced to four years and two months
of prision correccional, as minimum, to eight years of prision
mayor as maximum, in addition to one (1) year for each additional
(3)
(4)
SO ORDERED.[5]
A motion for reconsideration was filed, seeking the reduction
of the amount of bail fixed by respondent court, but was denied in a
resolution issued on November 25, 1999. Hence, this petition.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
Thus, the court has wide latitude in fixing the amount of bail.
Where it fears that the accused may jump bail, it is certainly not
precluded from installing devices to ensure against the
same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically to
the court and to make an accounting of his movements.[12] In the
present case, where petitioner was found to have left the country
several times while the case was pending, the Court of Appeals
required the confiscation of his passport and the issuance of a holddeparture order against him.
Under the circumstances of this case, we find that appropriate
conditions have been imposed in the bail bond to ensure against the
risk of flight, particularly, the combination of the hold-departure
order and the requirement that petitioner inform the court of any
change of residence and of his whereabouts. Although an increase
in the amount of bail while the case is on appeal may be
meritorious, we find that the setting of the amount at
P5,500,000.00 is unreasonable, excessive, and constitutes an
effective denial of petitioners right to bail.
The purpose for bail is to guarantee the appearance of the
accused at the trial,[13] or whenever so required by the court[14] The
amount should be high enough to assure the presence of the
accused when required but no higher than is reasonably calculated
to fulfill this purpose.[15] To fix bail at an amount equivalent to the
civil liability of which petitioner is charged (in this case,
P5,500,000.00) is to permit the impression that the amount paid as
bail is an exaction of the civil liability that accused is charged of;
this we cannot allow because bail is not intended as a punishment,
nor as a satisfaction of civil liability which should necessarily await
the judgment of the appellate court.
At the same time, we cannot yield to petitioners submission
that bail in the instant case be set at P40,000.00 based on the 1996
Bail Bond Guide. (The current Bail Bond Guide, issued on August
29, 2000, maintains recommended bail at P40,000.00 for estafa
where the amount of fraud is P142,000.00 or over and the
imposable penalty 20 years of reclusion temporal). True, the Court
has held that the Bail Bond Guide, a circular of the Department of
Justice for the guidance of state prosecutors, although technically
not binding upon the courts, merits attention, being in a sense an
expression of policy of the Executive Branch, through the
Department of Justice, in the enforcement of criminal
laws.[16] Thus, courts are advised that they must not only be aware
but should also consider the Bail Bond Guide due to its significance
in the administration of criminal justice.[17] This notwithstanding,
the Court is not precluded from imposing in petitioners case an
amount higher than P40,000.00 (based on the Bail Bond Guide)
where it perceives that an appropriate increase is dictated by the
circumstances.
It militates emphasis that petitioner is seeking bail on
appeal. Section 5, Rule 114 of the Revised Rules of Criminal
Procedure is clear that although the grant of bail on appeal in noncapital offenses is discretionary, when the penalty imposed on the
convicted accused exceeds six years and circumstances exist that
point to the probability of flight if released on bail, then the accused
must be denied bail, or his bail previously granted should be
cancelled.[18] In the same vein, the Court has held that the
discretion to extend bail during the course of the appeal should be
Vitug,
[1] Branch
Sir:
As a lawyer, member of the media and plain
citizen of our Republic, I am requesting that I be
furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were
able to secure a clean loan of P2 million each on
guarranty (sic) of Mrs. Imelda Marcos. We
understand that OIC Mel Lopez of Manila was one
of those aforesaid MPs. Likewise, may we be
furnished with the certified true copies of the
documents evidencing their loan. Expenses in
connection herewith shall be borne by us.
EN BANC
Ricardo C. Valmonte for and in his own behalf and his copetitioners.
Belmonte
Manager
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS
replied:
June 17, 1986
Atty.
Ricardo
108
E.
Caloocan City
Dear Compaero:
C.
Benin
Valmonte
Street
A.
TIRO
Counsel
On June 20, 1986, apparently not having yet received the reply of
the Government Service and Insurance System (GSIS) Deputy
General Counsel, petitioner Valmonte wrote respondent another
letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within
the premises to pursue our desired objective in pursuance of public
interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed
the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting
that 137 former members of the defunct interim and regular
Batasang Pambansa, including ten (10) opposition members, were
granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the
Solicitor General. After petitioners filed a consolidated reply, the
petition was given due course and the parties were required to file
their memoranda. The parties having complied, the case was
deemed submitted for decision.
In his comment respondent raises procedural objections to the
issuance of a writ of mandamus, among which is that petitioners
have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are
reviewable by the Board of Trustees of the GSIS. Petitioners,
however, did not seek relief from the GSIS Board of Trustees. It is
therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely
legal issue, viz., whether or not they are entitled to the documents
sought, by virtue of their constitutional right to information. Hence,
it is argued that this case falls under one of the exceptions to the
principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a
party can be allowed to resort to the courts, he is expected to have
exhausted all means of administrative redress available under the
law. The courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have
been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of
administrative remedies is subject to settled exceptions, among
which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v.
Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The
issue raised by petitioners, which requires the interpretation of the
scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS
or its Board of Trustees, involving as it does a purely legal question.
Thus, the exception of this case from the application of the general
rule on exhaustion of administrative remedies is warranted.
Having disposed of this procedural issue, We now address ourselves
to the issue of whether or not mandamus hes to compel respondent
to perform the acts sought by petitioners to be done, in pursuance of
their right to information.
We shall deal first with the second and third alternative acts
sought to be done, both of which involve the issue of whether or not
petitioners are entitled to access to the documents evidencing loans
granted by the GSIS.
This is not the first time that the Court is confronted with a
controversy directly involving the constitutional right to
information. In Taada v. Tuvera, G.R. No. 63915, April 24,1985,
136 SCRA 27 and in the recent case of Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the
Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111,
Sec. 7 which states:
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations as
may be provided by law.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters
of public concern shall be recognized. Access to
official records, and to documents and papers
pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to
such limitations as may be provided by law.
Yet, respondent has failed to cite any law granting the GSIS the
privilege of confidentiality as regards the documents subject of this
petition. His position is apparently based merely on considerations
of policy. The judiciary does not settle policy issues. The Court can
only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the
domain of the political branches of the government, and of the
people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy
which is equally protected by the Constitution and by existing laws,
the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally
protected. In the landmark case of Morfe v. Mutuc[130 Phil. 415
(1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:
... The right to privacy as such is accorded
recognition independently of its identification with
liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of
limited government has always included the idea
that governmental powers stop short of certain
intrusions into the personal life of the citizen. This
is indeed one of the basic distinctions between
absolute and limited government. UItimate and
pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute. state, In
contrast, a system of limited government
safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public
sector, which the state can control. Protection of
this private sector protection, in other words, of
the dignity and integrity of the individual has
become increasingly important as modem society
has developed. All the forces of technological age
industrialization,
urbanization,
and
organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference
between a democratic and a totalitarian society."
[at pp. 444-445.]
N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be
invoked only by the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the
concerned borrowers themselves may not succeed if they choose to
invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they
generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their
actions being subject to closer public scrutiny [Cf.Ayer Productions
Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29,
1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not
covered by the Constitutional right to information on matters of
public concern which guarantees "(a)ccess to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the
people's right of access to official records.
It is further contended that since the loan function of the GSIS is
merely incidental to its insurance function, then its loan
transactions are not covered by the constitutional policy of full
public disclosure and the right to information which is applicable
only to "official" transactions.
First of all, the "constituent ministrant" dichotomy
characterizing government function has long been repudiated.
In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605,
November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or
running some business, discharges the same function of service to
the people.
Consequently, that the GSIS, in granting the loans, was exercising
a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to
information.
Suarez
is
the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured
[Legaspi v. Civil Service Commission, supra at p. 538, quoting
Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second
and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e., "to furnish petitioners the list of the
names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of
official records to prepare lists, abstracts, summaries and the like
in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of
the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare
the list requested.
WHEREFORE, the instant petition is hereby granted and
respondent General Manager of the Government Service Insurance
System is ORDERED to allow petitioners access to 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.
Separate Opinions
Footnotes
BIDIN, J.:p
* Art. II, Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.
** Art XI, Sec. 1. Public office is a public trust.
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with partriotism and justice, and lead modest
lives.
The following provisions of the 1987 Constitution
are further indicative of the policy of
transparency:
Art. VII, Sec. 12. In case of serious illness of the
President, the public shall be informed of the state
of his health. The members of the cabinet in
charge of national security and foreign relations
and the Chief of Staff of the Armed Forces of the
Philippines shall not be denied access to the
President during such illness.
Art. XI, Sec. 17. A public officer or employee shall,
upon assumption of office and as often thereafter
as may be required by law, submit a declaration
under oath or his assets liabilities, and net worth.
In the case of the President, the Vice-President,
the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commissions
and other constitutional offices, and officers of the
armed forces with general or flag rank, the
declaration shall be disclosed to the public in the
manner provided by law.
Art. XII, Sec. 21. Foreign loans may only be
incurred in accordance with law and the
regulation of the monetary authority. Information
on foreign loans obtained or guaranteed by the
Government shall be made available to the public.
rendered by the
reflected in their
conscience on the
such, makes the
organization and
the BOARD, and
appointment of the
and
subordinate
The Case
These are the main questions raised in this original action
seeking (1) to prohibit and [e]njoin respondents [PCGG and its
chairman] from privately entering into, perfecting and/or executing
any agreement with the heirs of the late President Ferdinand E.
Marcos x x x relating to and concerning the properties and assets
of Ferdinand Marcos located in the Philippines and/or abroad -including the so-called Marcos gold hoard; and (2) to [c]ompel
respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating
to such negotiations and agreement between the PCGG and the
Marcos heirs.[1]
The Facts
SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by
and between -The Republic of the Philippines, through the
Presidential Commission on Good Government (PCGG),
a governmental agency vested with authority defined
under Executive Orders Nos. 1, 2 and 14, with offices at
the Philcomcen Building, Pasig, Metro Manila,
represented by its Chairman Magtanggol C. Gunigundo,
hereinafter referred to as the FIRST PARTY,
-- and --
W I T N E S S E T H:
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
Issues
Legaspi
v.
Civil
Service
Commission,[20] while
reiterating Taada,
further
declared
that
when
a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that
petitioner is a citizen and, therefore, part of the general public
which possesses the right.[21]
Prohibited Compromises
In general, the law encourages compromises in civil cases,
except with regard to the following matters: (1) the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any
ground for legal separation, (4) future support, (5) the jurisdiction
of courts, and (6) future legitime.[45] And like any other contract, the
terms and conditions of a compromise must not be contrary to law,
morals, good customs, public policy or public order. [46] A
compromise is binding and has the force of law between the
parties,[47] unless the consent of a party is vitiated -- such as by
mistake, fraud, violence, intimidation or undue influence -- or when
there is forgery, or if the terms of the settlement are so palpably
unconscionable. In the latter instances, the agreement may be
invalidated by the courts.[48]
directly or indirectly involved in the recovery of the alleged illgotten wealth of the Marcoses and their associates
are DIRECTED to disclose to the public the terms of any proposed
compromise settlement, as well as the final agreement, relating to
such alleged ill-gotten wealth, in accordance with the discussions
embodied in this Decision. No pronouncement as to costs.
Thus, the PCGG, as the government prosecutor of illgotten wealth cases, cannot guarantee the dismissal of all
such criminal cases against the Marcoses pending in the
courts, for said dismissal is not within its sole power and
discretion.
the
the
as
the
SO ORDERED.
Davide
Jr.
C.J.
(Chairman),
JJ., concur.
Vitug, J., please see separate opinion.
Petition, p. 3; rollo, p. 4.
Annexed to the Petition were the following news articles:
1. Estrella Torres, $2-B FM Hoard Found, Today, September 25, 1997, p.1.
2. Govt Working Out Secret Deal on Marcos Gold, The Manila
Times, September 25, 1997, p.1.
3. Estrella Torres, FVR Man Has FM Money, Today, September 27, 1997,
p.1.
4. Donna Cueto and Cathy Caares, Swiss, RP Execs Plotted Gold
Sale, Philippine Daily Inquirer, September 28, 1997.
5. Jocelyn Montemayor, Coded Swiss Accounts Traced to
Palace
Boys? The Manila Times, September 29, 1997.
[3] 7, Art. III, 1987 Constitution.
[4] 28, Art. II, ibid.
[5] The solicitor generals Manifestation, dated August 11, 1998.
[6] Rollo, pp. 213-216.
[7] It appears that Ferdinand R. Marcos Jr. did not sign the General
Agreement.
[8] Rollo, pp. 217-218.
[9] It appears that Ferdinand R. Marcos Jr. did not sign the Supplemental
Agreement either.
[10] Rollo, pp. 159-160.
[11] Resolution dated March 16, 1998, pp. 1-2; ibid., pp. 147-148.
[12] Rollo, pp. 396-403.
[13] This case was deemed submitted for resolution on September 28, 1998,
when the Court received the solicitor generals Comment on the Motion and
Petition for Intervention.
[14] Citing Legaspi v. Civil Service Commission, 150 SCRA 530, 536, May 29,
1987.
[15] Such as Avelino v. Cuenco, 83 Phil 17 (1949); Basco v. PAGCOR, 197
SCRA 52, May 14, 1991; Kapatiran ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan, 163 SCRA 371, June 30, 1988.
[16] Joaquin G. Bernas, SJ, The Constitution of the Republic of the
Philippines: A Commentary, 1996 ed., p. 334.
[17] 136 SCRA 27, 36-37, April 24, 1985, per Escolin, J.
[18] Quoting from Severino v. Governor General, 16 Phil 366, 378 (1910).
[19] Section 6. The right of the people to information on matters of public
concern shall be recognized, access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions shall be afforded
the citizens subject to such limitation as may be provided by law.
[20] Supra, per Cortes, J.
[21] Also in Gonzales v. Chavez, 205 SCRA 816, 847, February 4, 1992. Cf.
Oposa v. Factoran, 224 SCRA 792, July 30, 1993.
[22] 175 SCRA 264, 273, July 11, 1989, per Paras, J.
[23] See also Valmonte v. Belmonte Jr., 170 SCRA 256, February 13, 1989.
[24] IV RECORD OF THE CONSTITUTIONAL COMMISSION 921-922, 931
(1986) [hereafter, RECORD]; Almonte v. Vasquez, 244 SCRA 286, 295,
297, May 23, 1995.
[25] Almonte, ibid.
[26] V RECORD 25.
[27] RA No. 8293, approved on June 6, 1997.
[28] RA No. 1405, as amended.
[29] V RECORD 25. See also Vol. I, p. 709.
[30] 66 Am Jur 27, Records and Recording Laws.
[31] RA No. 6713, enacted on February 20, 1989.
[32] 7 (c), ibid.
[33] Legaspi, supra.
[34] Supra, p. 266.
[35] Supra, p. 541. Also quoted in Valmonte v. Belmonte Jr., supra.
[36] 203 SCRA 515, 522-23, November 13, 1991.
[1]
[2]
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres
to the Office of the President. It exists to protect public interest, not
to benefit a particular public official. Its purpose, among others, is
to assure that the nation will receive the benefit of candid, objective
and untrammeled communication and exchange of information
between the President and his/her advisers in the process of
shaping or forming policies and arriving at decisions in the exercise
of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence
is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of
all citizens and more, because it is dictated by public interest and
the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its
power of review and arbitrate a hotly, even acrimoniously, debated
dispute between the Courts co-equal branches of government. In
this task, this Court should neither curb the legitimate powers of
any of the co-equal and coordinate branches of government nor
allow any of them to overstep the boundaries set for it by our
Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and
the respondent Senate Committees assertion of their power to
conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the
light of settled constitutional and legal doctrines, plainly lead to the
conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated
March 25, 2008 (the "Decision"), granting the petition
for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers
and Investigations,1 Trade and Commerce,2 and National Defense
and Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent
Committees and testified for about eleven (11) hours on matters
concerning the National Broadband Project (the "NBN Project"), a
project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications
Equipment ("ZTE"). Petitioner disclosed that then Commission on
Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project.
He further narrated that he informed President Gloria Macapagal
Arroyo ("President Arroyo") of the bribery attempt and that she
instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioners discussions relating to
the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on:
(a) whether or not President Arroyo followed up the NBN
Project,4 (b) whether or not she directed him to prioritize it,5 and (c)
whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers
to these three questions by requiring him to appear and testify once
more on November 20, 2007. On November 15, 2007, Executive
Secretary Eduardo R. Ermita wrote to respondent Committees and
VIOLATE THE
LAID
DOWN
Presumptive
to
the
'the twofold aim (of criminal justice) is that guild shall not
escape or innocence suffer.' Berger v. United States, 295
U.S., at 88, 55 S.Ct., at 633. We have elected to employ an
adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is
both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments
were to be founded on a partial or speculative
presentation of the facts. The very integrity of the
judicial system and public confidence in the system
depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that
justice is done, it is imperative to the function of
courts that compulsory process be available for the
production of evidence needed either by the prosecution or
by the defense.
xxx xxx xxx
At the outset, it must be clarified that the Decision did not pass
upon the nature of respondent Committees inquiry into the NBN
Project. To reiterate, this Court recognizes respondent Committees
power to investigate the NBN Project in aid of legislation. However,
this Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the
course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by
the expedient of mentioning statutes and/or pending bills to which
their inquiry as a whole may have relevance. The jurisprudential
test laid down by this Court in past decisions on executive privilege
is that the presumption of privilege can only be overturned by a
showing of compelling needfor disclosure of the information
covered by executive privilege.
In the Decision, the majority held that "there is no adequate
showing of a compelling need that would justify the limitation of
the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority." In the Motion for
Reconsideration, respondent Committees argue that the
information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider
the three (3) pending Senate Bills, and (b) to curb graft and
corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is
subject to balancing against other interests and it is necessary to
resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed
between presidential privilege and the legitimate claims of the
judicial process. In giving more weight to the latter, the Court ruled
that the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal
trial.
The Nixon Court ruled that an absolute and unqualified privilege
would stand in the way of the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in
the Honorable Chief Justice Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light
of our historic commitment to the rule of law. This is
nowhere more profoundly manifest than in our view that
Grave
RULE
UNFINISHED BUSINESS
XLIV
RULE
AMENDMENTS
RULES
RULE
DATE OF TAKING EFFECT
TO,
OR
REVISIONS
OF,
LI
THE
SEC. 137. These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended
or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the
new composition of the Senate after an election and the possibility
of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin
their term.
However, it is evident that the Senate has determined that its main
rules are intended to be valid from the date of their adoption until
for
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.
Dissenting
Opinion
C.J.
Puno
Separate Opinion on the Motion for Reconsideration - J.
Quisumbing
Separate
Dissenting
Opinion
J.
Azcuna
Separate Opinion - J. Reyes
Article XVI, Sec. 10. The State shall provide the policy
environment for the full development of Filipino capability
and the emergence of communications structures suitable
to the needs and aspirations of the nation and the balanced
flow of information into, out of, and across the country, in
accordance with a policy that respects the freedom of
speech and of the press.
34 Article VII, Sec. 20. The President may contract or
guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided
by law. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to
Congress a complete report of its decisions on applications
for loans to be contracted or guaranteed by the
Government or government-controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
35 Article XII, Sec. 9. The Congress may establish an
independent economic and planning agency headed by the
President, which shall, after consultations with the
appropriate public agencies, various private sectors, and
local government units, recommend to Congress, and
implement continuing integrated and coordinated
programs and policies for national development. Until the
Congress provides otherwise, the National Economic and
Development Authority shall function as the independent
planning agency of the government.
36 Article XII, Sec. 21. Foreign loans may only be incurred
in accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or
guaranteed by the Government shall be made available to
the public.
37 Article XII, Sec. 22. Acts which circumvent or negate any
of the provisions of this Article shall be considered inimical
to the national interest and subject to criminal and civil
sanctions, as may be provided by law.
38 14 F. Supp. 230, 299 U.S. 304 (1936).
39 G.R. No. 170516, promulgated July 16, 2008.
40 Supra note 14.
41 Senate
Select
Committee
on
Presidential
Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir.
1974).
42 TSN, Oral Argument, March 4, 2008, pp. 417 - 422.
43 Supra, note 41 at pp. 725, 731-32.
44 Senate
Select
Committee
on
Presidential
Campaign Activities v. Nixon held that Congress "asserted
power to investigate and inform" was, standing alone,
insufficient to overcome a claim of privilege and so refused
to enforce the congressional subpoena. Id.
45 G.R. No. 89914, November 20, 1991, 203 SCRA 767.
46 Id., at p. 776.
47 Id., at p. 783.
48 The dialogue between petitioner and Senator Lacson is a
good illustration, thus:
SEN. LACSON. Did you report the attempted
bribe offer to the President?
MR. NERI. I mentioned it to the President, Your
Honor.
SEN. LACSON: What did she tell you?
MR. NERI. She told me, Dont accept it."
SEN. LACSON. And then, thats it?
MR. NERI. Yeah, because we had other things to
discuss during that time.
SEN. LACSON. And then after the President told
you, "Do not accept it," what did she do? How did
33
Footnotes
1 Chaired by Hon. Senator Alan Peter S. Cayetano.
2 Chaired by Hon. Senator Manuel A. Roxas II.
3 Chaired by Hon. Senator Rodolfo G. Biazon.
4 Transcript of the September 26, 2007 Hearing of the
respondent Committees, pp. 91-92.
5 Id., pp. 114-115.
6 Id., pp. 276-277.
7 See Letter dated November 15, 2007.
8 See Letter dated January 30, 2008.
9 G.R. No. 95367, May 23, 1995, 244 SCRA 286.
10 433 Phil. 506 (2002)
11 G.R. No. 169777, April 20, 2006, 488 SCRA 1.
12 Supra., note 9.
13 Supra., note 11.
14 G.R. No. 130716, December 9, 1998, 299 SCRA 744.
15 Supra., note 10.
16 Almonte v. Vasquez, supra., note 9.
17 Chavez v. PCGG, supra., note 14.
18 Senate v. Ermita, supra., note 11.
19 Telefunken Semiconductors Employees Union -FFW v.
Court of Appeals, G.R. Nos. 143013-14, December 18, 2000,
348 SCRA 565,587; Valderama v. NLRC, G.R. No. 98239,
April 25,1996, 256 SCRA 466, 472 citing Policarpio v.
P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil.
125, 131 (1959).
20 Supra, note 11 at pp. 68-69
21 Id., at pp. 45-46
22 Id., at p. 58
23 Id., at p. 50
24 Webster Encyclopedic Unabridged Dictionary, Gramercy
Books 1994, p. 1181.
25 Business
Dictionary,
http://www.businessdictionary.com/definition/nondelegable-duty.html
26 Usaffe Veterans Association, Inc. v. Treasurer of the
Philippines, et al. (105 Phil. 1030, 1038); See also
Commissioner of Internal Revenue v. John Gotamco &
Sons, Inc. G.R. No. L-31092, February 27, 1987,148 SCRA
36, 39.
27 No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App.
D.C. 276.
28 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid.
Serv.141.
29 Article III, Sec. 7. The right of the people to information
on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
30 Article II, Sec. 24. The State recognizes the vital role of
communication and information in nation-building.
31 Article II, Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions
involving public interest.
32 Article XI, Sec. 1. Public office is a public trust. Public
officers and employees must at all times be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
EN BANC
AKBAYAN
CITIZENS
ACTION
PARTY
(AKBAYAN), PAMBANSANG KATIPUNAN
NG MGA SAMAHAN SA KANAYUNAN
(PKSK), ALLIANCE OF PROGRESSIVE
LABOR
(APL),
VICENTE
A.
FABE,
ANGELITO R. MENDOZA, MANUEL P.
QUIAMBAO,
ROSE
BEATRIX
CRUZANGELES, CONG. LORENZO R. TANADA III,
CONG. MARIO JOYO AGUJA, CONG.
LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL, AND
CONG. EMMANUEL JOEL J. VILLANUEVA,
Petitioners,
- versus
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO
CARPIO,
AUSTRIAMARTINEZ,
CORONA,
CARPIO
MORALES,
AZCUNA,
TINGA,
CHICONAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE
CASTRO, &
BRION, JJ.
Promulgated:
July 16, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners
non-government
organizations,
Congresspersons, citizens and taxpayers seek via the present
petition for mandamus and prohibition to obtain from respondents
the full text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) including the Philippine and Japanese offers
submitted during the negotiation process and all pertinent
attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario
Joyo Aguja filed on January 25, 2005 House Resolution No. 551
calling for an inquiry into the bilateral trade agreements then being
negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the
JPEPA.
In the course of its inquiry, the House Committee requested
herein respondent Undersecretary Tomas Aquino (Usec. Aquino),
Chairman of the Philippine Coordinating Committee created under
Executive Order No. 213 (CREATION OF A PHILIPPINE
COORDINATING COMMITTEE TO STUDY THE FEASIBILITY
OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP
AGREEMENT)[1] to study and negotiate the proposed JPEPA, and
to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document,
but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof once the
negotiations are completed and as soon as a thorough legal review
of the proposed agreement has been conducted.
Mootness
Considering, however, that [t]he principal relief petitioners
are praying for is the disclosure of the contents of the JPEPAprior
to its finalization between the two States parties,[10] public
disclosure of the text of the JPEPA after its signing by the
President, during the pendency of the present petition, has been
largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending,
the agreement as it now stands cannot yet be considered as final
and binding between the two States. Article 164 of the JPEPA
itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into
force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the
thirtieth day after the date on which the
Governments of the Parties exchange diplomatic
notes informing each other that their respective
legal procedures necessary for entry into
force of this Agreement have been
completed. It shall remain in force unless
terminated
as
provided
for
in
Article
165.[11] (Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate
for concurrence is part of the legal procedures which must be met
prior to the agreements entry into force.
powers
on
nearly
all
subjects
is
concerned. This,
it
is
claimed,
is
incompatible
with
the
substance
of
democracy. As expressed by one writer, It can
be said that there is no more rigid system of
silence anywhere in the world. (E.J. Young,
Looking
Behind
the
Censorship,
J.
B. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World
War declared that we must have open covenants,
openly arrived at. He quickly abandoned his
thought.
No one who has studied the question
believes that such a method of publicity is
possible. In the moment that negotiations are
started, pressure groups attempt to muscle
in. An ill-timed speech by one of the parties
or a frank declaration of the concession
which are exacted or offered on both sides
would
quickly
lead
to
widespread
propaganda to block the negotiations. After
a treaty has been drafted and its terms are
fully published, there is ample opportunity
for discussion before it is approved. (The New
American Government and Its Works, James T.
Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the
doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the
President is the sole organ of the nation in its negotiations with
foreign countries, viz:
x x x In this vast external realm, with its
important, complicated, delicate and manifold
problems, the President alone has the power to
speak or listen as a representative of the
nation. He makes treaties with the advice and
consent of the Senate; but he
alone
negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument
of March
7,
1800,
in
the
House
of
Representatives, The President is the sole
organ of the nation in its external relations,
and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . .
(Emphasis supplied; underscoring in the original)
The doctrine in PMPF v. Manglapus that the treatymaking power is exclusive to the President, being the sole organ of
the nation in its external relations, was echoed in BAYAN v.
Executive Secretary[56] where the Court held:
By constitutional
fiat and
by
the intrinsic nature of his office, the
President,
as
head
of
State,
is
the sole organ and authority in the external
affairs of the country. In many ways, the
President is the chief architect of the
nation's foreign policy; his "dominance in the
field
of
foreign
relations
is
(then)
conceded." Wielding
vast
powers
and
influence, his conduct in the external
affairs of the nation, asJefferson describes, is
executive altogether.
As regards the power to enter into
treaties or international agreements, the
Constitution vests the same in the
President,subject only to the concurrence of
at least two thirds vote of all the members of
the Senate. In this light, the negotiation of the
VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely
to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him
no less than by the fundamental law
itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the
original; emphasis and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v.
Executive Secretary[57] where the Court ruled:
In our system of government, the
President, being the head of state, is regarded
as the sole organ and authority in external
at bar.
The dissent opines that petitioner-members of the House of
Representatives, by asking for the subject JPEPA documents, are
not seeking to directly participate in the negotiations of the JPEPA,
hence, they cannot be prevented from gaining access to these
documents.
On the other hand, We hold that this is one occasion where
the following ruling in Agan v. PIATCO[63] and in other cases both
before and since should be applied:
This Court has long and consistently
adhered to the legal maxim that those that
cannot be done directly cannot be done
indirectly. To declare the PIATCO contracts
valid despite the clear statutory prohibition
against a direct government guarantee would not
only make a mockery of what the BOT Law
seeks to prevent -- which is to expose the
government to the risk of incurring a monetary
obligation resulting from a contract of loan
between the project proponent and its lenders and
to which the Government is not a party to --but
would also render the BOT Law useless for
what it seeks to achieve - to make use of the
resources of the private sector in the financing,
operation and maintenance of infrastructure and
development projects which are necessary for
national growth and development but which the
government, unfortunately, could ill-afford to
finance at this point in time.[64]
Similarly, while herein petitioners-members of the House of
Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their
scrutiny even to the point of giving them access to the offers
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
SO ORDERED.
In the case title as indicated in the petition, only the name of Usec.
Thomas G. Aquino appears in the portion for Respondents, to wit: HON.
THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of
the Philippine Coordinating Committee for the Japan-Philippines Economic
Partnership Agreement, et al. (Underscoring supplied) The other
respondents are enumerated in the body of the petition. (Rollo, pp. 2023) The Court motu proprio included the names of these other respondents
in the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil
Procedure, as well as the capacities in which they are being
sued. Moreover, it inserted therein that respondent Usec. Aquino, as stated
in the petition, is also being sued in his capacity as DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The
Petition
quoted
the
following
statement
of
Congressman Teves appearing in the transcript of the Committee
hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to
furnish us a copy of the draft JPEPA and enunciate to this body
the positive as well as the negative impact of said agreement. Is
this the draft that the government will sign in December or this
will still be subjected to revisions in the run-up to its signing?
*
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