256 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

*
G.R. No. 95770. March 1, 1993.

ROEL EBRALINAG, EMILY EBRALINAG, represented by their

parents MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father AMOS TANTOG; JEMIL
OYAO & JOEL OYAO, represented by their parents MR. & MRS.
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS,
represented by parents MR. & MRS. GODOFREDO DIAMOS;
SARA OSTIA & JONATHAN OSTIA, represented by their parents
MR. & MRS. FAUSTO OSTIA; IRVIN SEQUINO & RENAN
SEQUINO, represented by their parents MR. & MRS. LYDIO
SEQUINO; NAPTHALE TANACAO, represented by his parents
MR. & MRS. MANUEL TANACAO, PRECILA PINO, represented
by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR,
RUWINA ALFAR, represented by their parents MR. & MRS.
HERMINIGILDO ALFAR; FREDESMINDA ALFAR &
GUMERSINDO ALFAR, represented by their parents ABDON
ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by
their parents MR. & MRS. GENEROSO ALFAR; MARTINO
VILLAR, represented by his parents MR. & MRS. GENARO
VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA,
represented by their parents MR. & MRS. CESAR GUINITA;
ALVIN

______________

* EN BANC.

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VOL. 219, MARCH 1, 1993 257

Ebralinag vs. The Division Superintendent of Schools of Cebu

DOOP, represented by his parents MR. & MRS. LEONIDES DOOP;

RHILYN LAUDE, represented by her parents MR. & MRS. RENE
LAUDE; LEOREMINDA MONARES, represented by her parents,
MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO,
represented by her parents MR. & MRS. MANUEL
MONTECILLO; ROBERTO TANGAHA, represented by his parent
ILUMINADA TANGAHA; EVELYN, MARIA & FLORA
TANGAHA, represented by their parents MR. & MRS. ALBERTO
TANGAHA; MAXIMO EBRALINAG, represented by his parents,
MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON
CUMON & JONATHAN CUMON, represented by their father
RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG,
represented by their parents MR. & MRS. LUMAKANG; EMILIO
SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO,
represented by their parents MR. & MRS. VIRGILIO SARSOZO;
MICHAEL JOSEPH & HENRY JOSEPH, represented by parent
ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU
TABLASON, represented by their parent EMERLITO TABLASON,
petitioners, vs. THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU, respondent.

G.R. No. 95887. March 1, 1993.*

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS

AMOLO; REDFORD ALSADO, JOEBERT ALSADO &
RUDYARD ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NESIA ALSADO, REU ALSADO and
LILIBETH ALSADO, represented by their parents MR. & MRS.
ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES and OPHELIA NAPOLES;
JESICA CARMELOTES, represented by her parents MR. & MRS.
SERGIO CARMELOTES; BABY JEAN MACAPAS, represented
by her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE
ALSADO, represented by her parents MR. & MRS. JOEL
ALSADO; RAQUEL DEMOTOR and LEAH DEMOTOR,
represented by their parents MR. & MRS. LEONARDO
DEMOTOR; JURELL VILLA and MELONEY VILLA, represented
by their parents MR. & MRS. JOVENIANO VILLA; JONELL
HOPE MAHINAY, MARY GRACE

258

258 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

MAHINAY and MAGDALENE MAHINAY, represented by their

parents MR. & MRS. FELIX MAHINAY; JONALYN ANTIOLA
and JERWIN ANTIOLA, represented by their parents FELIPE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION
CABUYAO, represented by her parents WENIFREDO CABUYAO
and ESTRELLITA CABUYAO, NOEMITURNO represented by her
parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON
PALATULON, SALMERO PALATULON and ROSALINDA
PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners, vs. THE
DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and
ANTONIO A. SANGUTAN, respondents.

Constitutional Law; Religious Freedom; Nature thereof.—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).
Same; Same; Same; Two-fold aspect of right to religious profession
and worship; Scope.—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).
Same; Same; Same; Prior restraint or limitation on the exercise of
religious freedom, sole justification thereof, explained.—"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.

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VOL. 219, MARCH 1, 1993 259

Ebralinag vs. The Division Superintendent of Schools of Cebu

Same; Same; Freedom of Speech; Administrative Code; Flag Salute

Law; Compulsion to observe flag salute law on pain of dismissal from one's
job or expulsion from school is alien to the conscience of present generation
of Filipinos, being violative of their constitutional rights to free speech and
free exercise of religious profession and worship.—Our task here is
extremely difficult, for the 30-year-old decision of this Court in Gerona
upholding the flag salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with. It is somewhat ironic
however, that after the Gerona ruling had received legislative cachet by its
incorporation in the Administrative Code of 1987, the present Court
believes that the time has come to reexamine 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).
Same; Same; Same; Same; Same; Jehovah's witnesses are accorded
exemption to the observance of flag ceremony in deference to their religious
beliefs but said right not to participate in the flag ceremony does not give
them the right to disrupt such patriotic exercises.—Exemption may be
accorded to the Jehovah's Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs, however "bizarre"
those beliefs may seem to others. Nevertheless, their right not to participate
in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II,
185 SCRA 523, 535, while the highest regard must be afforded their right to
the free exercise of their religion, "this should not be taken to mean that
school authorities are powerless to discipline them" if they should commit
breaches of the peace by actions that offend the sensibilities, both religious
and patriotic, of other persons. If they quietly stand at attention during the
flag ceremony while their classmates and teachers salute the flag, sing the
national anthem and recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose "a grave and present danger
of a serious evil to public safety, public morals, public health or any other
legitimate public interest that the State has a right (and duty) to prevent"
(German vs. Barangan, 135 SCRA 514, 517).

260

260 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

Same; Same; Same; Same; Same; Right to free education; Expulsion

from school by reason of one's religious belief considered a violation of a
citizen's right to free education.—Moreover, the expulsion of members of
Jehovah's Witnesses from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote the right of
all citizens to quality education x x x and to make such education accessible
to all" (Sec. 1, Art. XIV).
Same; Same; Same; Same; Same; Same; To force a religious group,
through statutory compulsion, to participate in a ceremony violative of its
religious belief is not conducive to love of country or respect for duly
constituted authorities.—Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron hand of
the law, to participate in a ceremony that violates their religious beliefs, will
hardly be conducive to love of country or respect for duly constituted
authorities.

SPECIAL CIVIL ACTIONS for certiorari, mandamus and

prohibition to annul and set aside the orders of the Division
Superintendent of Schools of Cebu.
The facts are stated in the opinion of the Court.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and

Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members of a religious
sect known as Jehovah's Witnesses may be expelled from school
(both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by
a band) or singing the Philippine national anthem, saluting the
Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770, "Roel Ebralinag, et al. vs. Division
Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu
District Supervisor," the petitioners are 43 high school

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Ebralinag vs. The Division Superintendent of Schools of Cebu

and elementary school students in the towns of Daan Bantayan,

Pinamungajan, Carcar, and Taburan, Cebu province. All minors,
they are assisted by their parents who belong to the religious group
known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division
Superintendent of Schools of Cebu and Antonio A. Sangutan," the
petitioners are 25 high school and grade school students enrolled in
public schools in Asturias, Cebu, whose parents are Jehovah's
Witnesses. Both petitions were prepared by the same counsel,
Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their
classes by the public school authorities in Cebu for refusing to salute
the flag, sing the national anthem and recite the patriotic pledge as
required by Republic Act No. 1265 of July 11, 1955, and by
Department Order No. 8 dated July 21, 1955 of the Department of
Education, Culture and Sports (DECS) making the flag ceremony
compulsory in all educational institutions. Republic Act No. 1265
provides:

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

ceremony, which shall be simple and dignified and shall include the playing
or singing of the Philippine National Anthem.
"Sec. 2. The Secretary of Education is hereby authorized and directed to
issue or cause to be issued rules and regulations for the proper conduct of
the flag ceremony herein provided.
"Sec. 3. Failure or refusal to observe the flag ceremony provided by this
Act and in accordance with rules and regulations issued by the Secretary of
Education, after proper notice and hearing, shall subject the educational
institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of general
circulation.
"In case of failure to observe for the second time the flag ceremony
provided by this Act, the Secretary of Education, after proper notice and
hearing, shall cause the cancellation of the recognition or permit of the
private educational institution responsible for such failure."

The implementing rules and regulations in Department Order No. 8

provide:

262

262 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

"RULES AND REGULATIONS FOR CONDUCTING THE FLAG

CEREMONY IN ALL EDUCATIONAL INSTITUTIONS

"1. The Filipino Flag shall be displayed by all educational institutions,

public and private, every school day throughout the year. It shall be
raised at sunrise and Iowered at sunset. The flagstaff must be
straight, slightly and gently tapering at the end, and of such height
as would give the Flag a commanding position in front of the
building or within the compound.
"2. Every public and private educational institution shall hold a flag-
raising ceremony every morning except when it is raining, in which
event the ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of the same day.
The flag-raising ceremony in the morning shall be conducted in the
following manner:

"a. Pupils and teachers or students and faculty members who are in
school and its premises shall assemble in formation facing the flag.
 At command, books shall be put away or held in the left hand and
everybody shall come to attention. Those with hats shall uncover.
No one shall enter or leave the school grounds during the
ceremony.
"b. The assembly shall sing the Philippine National Anthem
accompanied by the school band or without the accompaniment if it
has none; or the anthem may be played by the school band alone.
At the first note of the Anthem, the flag shall be raised briskly.
While the flag is being raised, all persons present shall stand at
attention and execute a salute. Boys and men with hats shall salute
by placing the hat over the heart. Those without hat may stand with
their arms and hands down and straight at the sides. Those in
military or Boy Scout uniform shall give the salute prescribed by
their regulations. The salute shall be started as the Flag rises, and
completed upon last note of the anthem.
"c. Immediately following the singing of the Anthem, the assembly
shall recite in unison the following patriotic pledge (English or
vernacular version), which may bring the ceremony to a close. This
is required of all public schools and of private schools which are
intended for Filipino students or whose population is
predominantly Filipino.

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Ebralinag vs. The Division Superintendent of Schools of Cebu

"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 x x x 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 protects 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

264

264 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

religious ceremony. The flag salute is no more a religious ceremony than the
taking of an oath of office by a public official or by a candidate for
admission to the bar."
"In requiring school pupils to participate in the flag salute, the State thru
the Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a non-discriminatory
school regulation applicable to all alike whether Christian, Moslem,
Protestant or Jehovah's Witness. The State is merely carrying out the duty
imposed upon it by the Constitution which charges it with supervision over
and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all
schools aim to develop, among other things, civic conscience and teach the
duties of citizenship."
"The children of Jehovah's Witnesses cannot be exempted from
participation in the flag ceremony. They have no valid right to such
exemption. Moreover, exemption to the requirement will disrupt school
discipline and demoralize the rest of the school population which by far
constitutes the great majority."
"The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable and
non-discriminatory laws, rules and regulations promulgated by competent
authority." (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:

"The Secretary of Education was duly authorized by the Legislature thru

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

Republic Act No. 1265 and the ruling in Gerona have been
incorporated in Section 28, Title VI, Chapter 9 of the Administrative
Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official
Gazette, Vol. 83, No. 38 of September 21, 1987). Paragraph 5 of
Section 28 gives legislative cachet to the ruling in Gerona, thus:

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VOL. 219, MARCH 1, 1993 265

Ebralinag vs. The Division Superintendent of Schools of Cebu

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

However, the petitioners herein have not raised in issue the

constitutionality of the above provision of the new Administrative
Code of 1987. They have targeted only Republic Act No. 1265 and
the implementing orders of the DECS.
In 1989, the DECs Regional Office in Cebu received complaints
about teachers and pupils belonging to the Jehovah's Witnesses, and
enrolled in various public and private schools, who refused to sing
the Philippine national anthem, salute the Philippine flag and recite
the patriotic pledge. Division Superintendent of Schools, Susana B.
Cabahug of the Cebu Division of DECS, and Dr./Atty. Marcelo M.
Bacalso, Assistant Division Superintendent, recalling this Court's
decision in Gerona, issued Division Memorandum No. 108, dated
November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770)
directing District Supervisors, High School Principals and Heads of
Private Educational institutions as follows:

"1. Reports reaching this Office disclose that there are a number of
teachers, pupils, students, and school employees in public schools
who refuse to salute the Philippine flag or participate in the daily
flag ceremony because of some religious belief.
"2. Such refusal not only undermines Republic Act No. 1265 and the
DECS Department Order No. 8, Series of 1955 (Implementing
Rules and Regulations) but also strikes at the heart of the DECS
sustained effort to inculcate patriotism and nationalism.
 "3. Let it be stressed that any belief that considers the flag as an image
is not in any manner whatever a justification for not saluting the
Philippine flag or not participating in flag ceremony. Thus, the
Supreme Court of the Philippines says:

" 'The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and freedom and
liberty which it and the Constitution guarantee and protect.' (Gerona, et al. vs. Sec.
of Education, et al., 106 Phil. 11.)

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

may advance, the Supreme Court asserts:

266

266 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

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

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

participate in the daily flag ceremony or to obey the flag salute
regulation spelled out in Department Order No. 8, Series of 1955,
shall be considered removed from the service after due process.
"6. In strong language about pupils and students who do the same the
Supreme Court has this to say:

" 'lf they choose not to obey the flag salute regulation, they merely lost the benefits
of public education being maintained at the expense of their fellow Citizens, nothing
more. According to a popular expression, they could take it or leave it! Having
elected not to comply with the regulation about the flag salute they forfeited their
right to attend public schools.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil.
15.)

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

on those who choose not to participate in flag ceremony or salute
the Philippine flag." (pp. 147-148, Rollo of G.R. No. 95770; Italics
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:

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Ebralinag vs. The Division Superintendent of Schools of Cebu

"After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines during Flag Ceremony and
other occasions, as mandated by law specifically Republic Act No. 1265,
this Office hereby orders the dropping from the list in the School Register
(BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I up to
Grade VI effective today.
"xxx xxx xxx.
"This order is in compliance with Division Memorandum No. 108 s.
1989 dated November 17, 1989 by virtue of Department Order No. 8 s.
1955 dated July 21, 1955 in accordance with Republic Act No. 1265 and
Supreme Court Decision of a case 'Genaro Gerona, et al., Petitioners and
Appellants vs. The Honorable Secretary of Education, et al., Respondents
and Appellees' dated August 12, 1959 against their favor." (p. 149, Rollo of
G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F.
Biongcog, ordered the "dropping from the rolls" of students who "opted to
follow their religious belief which is against the Flag Salute Law" on the
theory that "they forfeited their right to attend public schools." (p. 47, Rollo
of G.R. No. 95770.)

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

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

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

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

268

268 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

The expulsion as of October 23, 1990 of the 43 petitioning students

of the Daanbantayan National High School, Agujo Elementary
School, Calape Barangay National High School, Pinamungajan
Provincial High School, Tabuelan Central School, Canasojan
Elementary School, Liboron Elementary School, Tagaytay Primary
School, San Juan Primary School and Northern Central Elementary
School of San Fernando, Cebu, upon order of then Acting Division
Superintendent Marcelo Bacalso, prompted some Jehovah's
Witnesses in Cebu to appeal to the Secretary of Education Isidro
Cariño but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who
were similarly expelled because Dr. Pablo Antopina, who succeeded
Susana Cabahug as Division Superintendent of Schools, would not
recall the expulsion orders of his predecessor. Instead, he verbally
caused the expulsion of some more children of Jehovah's Witnesses.
On October 31, 1990, the students and their parents filed these
special civil actions for Mandamus, Certiorari and Prohibition
alleging that the public respondents acted without or in excess of
their jurisdiction and with grave abuse of discretion—(1) in ordering
their expulsion without prior notice and hearing, hence, in violation
of their right to due process, their right to free public education, and
their right to freedom of speech, religion and worship (p. 23, Rollo).
The petitioners pray that:

"c. Judgment be rendered:

"i. declaring null and void the expulsion or dropping from the
rolls of herein petitioners from their respective schools;
"ii. prohibiting and enjoining respondent from further barring
the petitioners from their classes or otherwise implementing
the expulsion ordered on petitioners; and
"iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their
respective schools." (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a

temporary restraining order be issued enjoining the
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Ebralinag us. The Division Superintendent of Schools of Cebu

respondents from enforcing the expulsion of the petitioners and to

re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining
order and a writ of preliminary mandatory injunction commanding
the respondents to immediately re-admit the petitioners to their
respective classes until further orders from this Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu
District Supervisor Manuel F. Biongcog to be impleaded as
respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated
comment to the petitions (p. 98, Rollo) defending the expulsion
orders issued by the public respondents on the grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses

produce rebellious and anti-social school children and
consequently disloyal and mutant Filipino citizens.
2. There are no new and valid grounds to sustain the charges
of the Jehovah's Witnesses that the DECS' rules and
regulations on the flag salute ceremonies are violative of
their freedom of religion and worship.
3. The flag salute is devoid of any religious significance;
instead, it inculcates respect and love of country, for which
the flag stands.
4. The State's compelling interests being pursued by the
DECS's lawful regulations in question do not warrant
exemption of the school children of the Jehovah's Witnesses
from the flag salute ceremonies on the basis of their own
self-perceived religious convictions.
5. The issue is not freedom of speech but enforcement of law
and jurisprudence.
6. State's power to regulate repressive and unlawful religious
practices justified, besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with
the enactment of Executive Order No. 292 (The
Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of
this court in Gerona upholding the flag salute law and approving the
expulsion of students who refuse to obey it, is not lightly to be
trifled with.
It is somewhat ironic however, that after the Gerona ruling
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270 SUPREME COURT REPORTS ANNOTATED

Ebralinag vs. The Division Superintendent of Schools of Cebu

had received legislative cachet by its incorporation in the

Administrative Code of 1987, the present Court believes that the
time has come to reexamine 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 twofold
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

_______________

** The flag salute, singing the national anthem and reciting the patriotic pledge are
all forms of utterances.

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VOL. 219, MARCH 1, 1993 271

 Ebralinag us. The Division Superintendent of Schools of Cebu

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:

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

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

Ebralinag vs. The Division Superintendent of Schools of Cebu

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

"x x x To believe that patriotism will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. x x x
When they [diversity] are so harmless to others or to the State as those we
deal with here, the price is not too great. But freedom to differ is not limited
to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch
the heart of the existing order."
"Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x—assuming that such unity and loyalty can be attained
through coercion—is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means." (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from

the schools where they are enrolled will violate their right as
Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote the
right of all citizens to quality education x x x and to make such
education accessible to all" (Sec. 1 Art XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54,
72-75, we upheld the exemption of members of the Iglesia ni Cristo,
from the coverage of a closed shop agreement between their
employer and a union because it would violate the teaching of their
church not to join any labor group:

"x x x It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some 'compelling state interests'
intervenes." (Sherbert vs Berner 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.
Ct. 1790.)"

We hold that a similar exemption may be accorded to the

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Ebralinag vs. The Division Superintendent of Schools of Cebu

Jehovah's Witnesses with regard to the observance of the flag

ceremony out of respect for their religious beliefs, however "bizarre"
those beliefs may seem to others. Nevertheless, their right not to
participate in the flag ceremony does not give them a right to disrupt
such patriotic exercises. Paraphrasing the warning cited by this
Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their
religion, "this should not be taken to mean that school authorities are
powerless to discipline them" if they should commit breaches of the
peace by actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at attention during
the flag ceremony while their classmates and teachers salute the
flag, sing the national anthem and recite the patriotic pledge, we do
not see how such conduct may possibly disturb the peace, or pose "a
grave and present danger of a serious evil to public safety, public
morals, public health or any other legitimate public interest that the
State has a right (and duty) to prevent" (German vs. Barangan, 135
SCRA 514, 517).
Before we close this decision, it is appropriate to recall the
Japanese occupation of our country in 1942-1944 when every
Filipino, regardless of religious persuasion, in fear of the invader,
saluted the Japanese flag and bowed before every Japanese soldier.
Perhaps, if petitioners had lived through that dark period of our
history, they would not quibble now about saluting the Philippine
flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that
made our hearts pound with pride and joy over the newly-regained
freedom and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right
under our Constitution to refuse to salute the Philippine flag on
account of their religious beliefs, we hope, nevertheless, that another
foreign invasion of our country will not be necessary in order for our
countrymen to appreciate and cherish the Philippine flag.
WHEREFORE, the petition for certiorari and prohibition is
GRANTED. The expulsion orders issued by the public respondents
against the petitioners are hereby ANNULLED AND

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Ebralinag vs. The Division Superintendent of Schools of Cebu

SET ASIDE. The temporary restraining order which was issued by

this Court is hereby made permanent.
SO ORDERED.

Narvasa, (C.J.), Feliciano, Bidin, Regalado, Davide, Jr.,

Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.
Gutierrez, Jr., J., On leave.
Cruz, J., See concurrence.
Padilla, J., See separate opinion.
Quiason, J., No part.

CRUZ, J., Concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in
her quietly eloquent affirmation of a vital postulate of freedom. I
would only add my brief observations concerning Gerona v.
Secretary of Education.
In my humble view, Gerona was based on an erroneous
assumption. The Court that promulgated it was apparently laboring
under the conviction that the State had the right to determine what
was religious and what was not and to dictate to the individual what
he could and could not worship. In pronouncing that the flag was not
a religious image but a symbol of the nation, it was implying that no
one had the right to worship it or—as the petitioners insisted—not to
worship it. This was no different from saying that the cult that
reveres Rizal as a divinity should not and cannot do so because he is
only a civic figure deserving honor but not veneration.
It seems to me that every individual is entitled to choose for
himself whom or what to worship or whether to worship at all. This
is a personal decision he alone can make. The individual may
worship a spirit or a person or a beast or a tree (or a flag) and the
State cannot prevent him from doing so. For that matter, neither can
it compel him to do so. As long as his beliefs are not externalized in
acts that offend the public interest, he cannot be prohibited from
harboring them or punished for doing so.
In requiring the herein petitioners to participate in the flag

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Ebralinag vs. The Division Superintendent of Schools of Cebu

ceremony, the State has declared ex cathedra that they are not
violating the Bible by saluting the flag. This is to me an unwarranted
intrusion into their religious beliefs, which tell them the opposite.
The State cannot interpret the Bible for them; only they can read it
as they see fit. Right or wrong, the meaning they derive from it
cannot be revised or reversed except perhaps by their own
acknowledged superiors. But certainly not the State. It has no
competence in this matter. Religion is forbidden territory that the
State, for all its power and authority, cannot invade.
I am not unaware of Justice Frankfurter's admonition that "the
constitutional protection of religious freedom terminated disabilities,
it did not create new privileges. It gave religious equality, not civil
immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious
dogma."
But in the case at bar, the law to which the petitioners are made
to conform clashes with their own understanding of their religious
obligations. Significantly, as the ponencia notes, their intransigence
does not disturb the peaceful atmosphere of the school or otherwise
prejudice the public order. Their refusal to salute the flag and recite
the patriotic pledge does not disrupt the flag ceremony. They neither
mock nor disdain it. The petitioners simply stand at attention and
keep quiet "to show their respect for the right of those who choose to
participate in the solemn proceedings." It is for this innocuous
conduct that, pursuant to the challenged law and regulations, the
teachers have been dismissed and the students expelled.
Freedom of speech includes the right to be silent. Aptly has it
been said that the Bill of Rights that guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner
of communication that conveys its message as clearly as the written
or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid
religious objections like those raised in this petition. To impose it on
the petitioners is to deny them the right not to speak when their
religion bids them to be silent. This coercion of conscience has no
place in the free society.

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Ebralinag vs. The Division Superintendent of Schools of Cebu

The democratic system provides for the accommodation of diverse

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

SEPARATE OPINION

PADILLA, J.:

I concur in the Court's decision penned by Madame Justice Carolina

C. Griño-Aquino that school teachers and students who cannot
salute the flag, sing the national anthem and recite the pledge of
loyalty to the country, on grounds of religious belief or conviction,
may not on this ground alone be dismissed from the service or
expelled from the school.
At the same time, I am really concerned with what could be the
far-reaching consequences of our ruling in that, we may in effect be
sanctioning a privileged or elite class of teachers and students who
will hereafter be exempt from participating, even when they are in
the school premises, in the flag ceremony in deference to their
religious scruples. What happens, for instance, if some citizens,
based also on their religious beliefs, were to refuse to pay taxes and
license fees to the government? Perhaps problems of this nature
should not be anticipated. They will be resolved when and if they
ever arise. But with today's decision, we may have created more
problems than we have solved.
It cannot be denied that the State has the right and even the duty
to promote among its citizens, especially the youth, love and
country, respect for the flag and reverence for its national heroes. It
cannot also be disputed that the State has the right to adopt
reasonable means by which these laudable objectives can be
effectively pursued and achieved. The flag ceremony is one such
device intended to inspire patriotism

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Ebralinag vs. The Division Superintendent of Schools of Cebu

and evoke the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve
legitimate (and noble) ends. For a select few to be exempt from the
flag ceremony and all that it represents even if the exemption is
predicated on respect for religious scruples, could be divisive in its
impact on the school population or community.
I would therefore submit that, henceforth, teachers and students
who because of religious scruples or beliefs cannot actively
participate in the flag ceremony conducted in the school premises
should be excluded beforehand from such ceremony. Instead of
allowing the religious objector to attend the flag ceremony and
display therein his inability to salute the flag, sing the national
anthem and recite the pledge of loyalty to the Republic, he or she
should remain in the classroom while honors to the flag are
conducted and manifested in the "quadrangle" or equivalent place
within school premises; or if the flag ceremony must be held in a
hall, the religious objector must take his or her place at the rear of
(or outside) the hall while those who actively participate in the
ceremony must take the front places. This arrangement can, in my
view, achieve an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to freedom of
religion and a valid exercise of the State's fundamental and
legitimate authority to require homage and honor to the flag as the
symbol of the Nation.
Petition granted. Orders annulled and set aside.
 Note.—View that the academic freedom of the school to choose
its students should not be stretched beyond its constitutional limits
(Tan vs. Court of Appeals, 199 SCRA 212).

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