1
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs. NATIONAL COCONUT CORPORATION,
ET AL., Defendants, NATIONAL COCONUT CORPORATION and BOARD OF LIQUIDATORS, Defendants-
Appellants.
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First Instance of Manila. During
the pendency of Civil Case No. 2293 of said court, entitled Francisco Sycip vs. National Coconut Corporation,
Assistant Corporate Counsel Federico Alikpala, counsel for Defendant, requested said stenographers for
copies of the transcript of the stenographic notes taken by them during the hearing. Plaintiffs complied with
the request by delivering to Counsel Alikpala the needed transcript containing 714 pages and thereafter
submitted to him their bills for the payment of their fees. The National Coconut Corporation paid the amount
of P564 to Leopoldo T. Bacani and P150 to Mateo A. Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor General disallowed the payment of these fees
and sought the recovery of the amounts paid. On January 19, 1953, the Auditor General required the
Plaintiffs to reimburse said amounts on the strength of a circular of the Department of Justice wherein the
opinion was expressed that the National Coconut Corporation, being a government entity, was exempt from
the payment of the fees in question. On February 6, 1954, the Auditor General issued an order directing the
Cashier of the Department of Justice to deduct from the salary of Leopoldo T. Bacani the amount of P25
every payday and from the salary of Mateo A. Matoto the amount of P10 every payday beginning March 30,
1954. To prevent deduction of these fees from their salaries and secure a judicial ruling that the National
Coconut Corporation is not a government entity within the purview of section 16, Rule 130 of the Rules of
Court, this action was instituted in the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is a government entity within the
purview of section 2 of the Revised Administrative Code of 1917 and, hence, it is exempt from paying the
stenographers’ fees under Rule 130 of the Rules of Court. After trial, the court found for the Plaintiffs
declaring (1) “that Defendant National Coconut Corporation is not a government entity within the purview
of section 16, Rule 130 of the Rules of Court; chan roblesvirtualawlibrary(2) that the payments already made
by said Defendant to Plaintiffs herein and received by the latter from the former in the total amount of P714,
for copies of the stenographic transcripts in question, are valid, just and legal; chan roblesvirtualawlibraryand
(3) that Plaintiffs are under no obligation whatsoever to make a refund of these payments already received
by them.” This is an appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines is exempt from paying
the legal fees provided for therein, and among these fees are those which stenographers may charge for the
transcript of notes taken by them that may be requested by any interested person (section 8). The fees in
question are for the transcript of notes taken during the hearing of a case in which the National Coconut
Corporation is interested, and the transcript was requested by its assistant corporate counsel for the use of
said corporation.
On the other hand, section 2 of the Revised Administrative Code defines the scope of the term “Government
of the Republic of the Philippines” as follows:chanroblesvirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which refers to the corporate governmental entity
through which the functions of government are exercised throughout the Philippine Islands, including, save
as the contrary appears from the context, the various arms through which political authority is made
effective in said Islands, whether pertaining to the central Government or to the provincial or municipal
branches or other form of local government.”
The question now to be determined is whether the National Coconut Corporation may be considered as
included in the term “Government of the Republic of the Philippines” for the purposes of the exemption of
the legal fees provided for in Rule 130 of the Rules of Court.
As may be noted, the term “Government of the Republic of the Philippines” refers to a government entity
through which the functions of government are exercised, including the various arms through which political
authority is made effective in the Philippines, whether pertaining to the central government or to the
provincial or municipal branches or other form of local government. This requires a little digression on the
nature and functions of our government as instituted in our Constitution.
To begin with, we state that the term “Government” may be defined as “that institution or aggregate of
institutions by which an independent society makes and carries out those rules of action which are necessary
to enable men to live in a social state, or which are imposed upon the people forming that society by those
who possess the power or authority of prescribing them” (U.S. vs. Dorr, 2 Phil., 332). This institution, when
referring to the national government, has reference to what our Constitution has established composed of
three great departments, the legislative, executive, and the judicial, through which the powers and functions
of government are exercised. These functions are twofold:chanroblesvirtuallawlibrary constitute and
ministrant. The former are those which constitute the very bonds of society and are compulsory in nature;
chan roblesvirtualawlibrarythe latter are those that are undertaken only by way of advancing the general
interests of society, and are merely optional. President Wilson enumerates the constituent functions as
follows:chanroblesvirtuallawlibrary
“‘(1) The keeping of order and providing for the protection of persons and property from violence and
robbery.
‘(2) The fixing of the legal relations between man and wife and between parents and children.
‘(3) The regulation of the holding, transmission, and interchange of property, and the determination of its
liabilities for debt or for crime.
‘(4) The determination of contract rights between individuals.
‘(5) The definition and punishment of crime.
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and relations of citizens.
‘(8) Dealings of the state with foreign powers:chanroblesvirtuallawlibrary the preservation of the state from
external danger or encroachment and the advancement of its international interests.’“ (Malcolm, The
Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are:chanroblesvirtuallawlibrary public works, public
education, public charity, health and safety regulations, and regulations of trade and industry. The principles
deter mining whether or not a government shall exercise certain of these optional functions
are:chanroblesvirtuallawlibrary (1) that a government should do for the public welfare those things which
private capital would not naturally undertake and (2) that a government should do these things which by its
very nature it is better equipped to administer for the public welfare than is any private individual or group
of individuals. (Malcolm, The Government of the Philippine Islands, pp. 19-20.)
2

From the above we may infer that, strictly speaking, there are functions which our government is required
to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an
attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and
prosperity of the people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our people such as the
National Coconut Corporation. These are what we call government-owned or controlled corporations which
may take on the form of a private enterprise or one organized with powers and formal characteristics of a
private corporations under the Corporation Law.
The question that now arises is:chanroblesvirtuallawlibrary Does the fact that these corporation perform
certain functions of government make them a part of the Government of the Philippines?
The answer is simple:chanroblesvirtuallawlibrary they do not acquire that status for the simple reason that
they do not come under the classification of municipal or public corporation. Take for instance the National
Coconut Corporation. While it was organized with the purpose of “adjusting the coconut industry to a
position independent of trade preferences in the United States” and of providing “Facilities for the better
curing of copra products and the proper utilization of coconut by-products”, a function which our
government has chosen to exercise to promote the coconut industry, however, it was given a corporate
power separate and distinct from our government, for it was made subject to the provisions of our
Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned
(sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any other
private corporations, and in this sense it is an entity different from our government. As this Court has aptly
said, “The mere fact that the Government happens to be a majority stockholder does not make it a public
corporation” (National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). “By becoming a
stockholder in the National Coal Company, the Government divested itself of its sovereign character so far
as respects the transactions of the corporation cralaw . Unlike the Government, the corporation may be sued
without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or
instrumentality of government.” (Government of the Philippine Islands vs. Springer, 50 Phil., 288.)
“We may, therefore, define a municipal corporation in its historical and strict sense to be the incorporation,
by the authority of the government, of the inhabitants of a particular place or district, and authorizing them
in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect
to their local and internal concerns. This power of local government is the distinctive purpose and the
distinguishing feature of a municipal corporation proper.” (Dillon, Municipal Corporations, 5th ed., Vol. I, p.
59.)
It is true that under section 8, Rule 130, stenographers may only charge as fees P0.30 for each page of
transcript of not less than 200 words before the appeal is taken and P0.15 for each page after the filing of
the appeal, but in this case the National Coconut Corporation has agreed and in fact has paid P1.00 per page
for the services rendered by the Plaintiffs and has not raised any objection to the amount paid until its
propriety was disputed by the Auditor General. The payment of the fees in question became therefore
contractual and as such is valid even if it goes beyond the limit prescribed in section 8, Rule 130 of the Rules
of Court.
As regards the question of procedure raised by Appellants, suffice it to say that the same is insubstantial,
considering that this case refers not to a money claim disapproved by the Auditor General but to an action
of prohibition the purpose of which is to restrain the officials concerned from deducting from Plaintiffs’
salaries the amount paid to them as stenographers’ fees. This case does not come under section 1, Rule 45
of the Rules of Court relative to appeals from a decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

To recapitulate, we may mention that the term “Government of the Republic of the Philippines” used in
section 2 of the Revised Administrative Code refers only to that government entity through which the
functions of the government are exercised as an attribute of sovereignty, and in this are included those arms
through which political authority is made effective whether they be provincial, municipal or other form of
local government. These are what we call municipal corporations. They do not include government entities
which are given a corporate personality separate and distinct from the government and which are governed
by the Corporation Law. Their powers, duties and liabilities have to be determined in the light of that law
and of their corporate charters. They do not therefore come within the exemption clause prescribed in
section 16, Rule 130 of our Rules of Court.

“Public corporations are those formed or organized for the government of a portion of the State.” (Section
3, Republic Act No. 1459, Corporation Law).

“‘The generally accepted definition of a municipal corporation would only include organized cities and towns,
and like organizations, with political and legislative powers for the local, civil government and police
regulations of the inhabitants of the particular district included in the boundaries of the corporation.’ Heller
vs. Stremmel, 52 Mo. 309, 312.”

“In its more general sense the phrase ‘municipal corporation’ may include both towns and counties, and
other public corporations created by government for political purposes. In its more common and limited
signification, it embraces only incorporated villages, towns and cities. Dunn vs. Court of County Revenues,
85 Ala. 144, 146, 4 So. 661.” (McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
3
G.R. No. L-21484 November 29, 1969
THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION (ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT OF INDUSTRIAL
RELATIONS, respondents.
MAKALINTAL, J.:
These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-21484) and
the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en banc, of the Court of
Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The parties, except the
Confederation of Unions in Government Corporations and Offices (CUGCO), being practically the same and
the principal issues involved related, only one decision is now rendered in these two cases.
The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency created
under Republic Act No. 821, as amended. Its administrative machinery was reorganized and its name
changed to Agricultural Credit Administration (ACA) under the Land Reform Code (Republic Act No. 3844).
On the other hand, the ACCFA Supervisors' Association (ASA) and the ACCFA Workers' Association (AWA),
hereinafter referred to as the Unions, are labor organizations composed of the supervisors and the rank-and-
file employees, respectively, in the ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of one (1)
year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few months thereafter,
the Unions started protesting against alleged violations and non-implementation of said agreement. Finally,
on October 25, 1962 the Unions declared a strike, which was ended when the strikers voluntarily returned
to work on November 26, 1962.
On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in Government
Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial Relations against the ACCFA
(Case No. 3450-ULP) for having allegedly committed acts of unfair labor practice, namely: violation of the
collective bargaining agreement in order to discourage the members of the Unions in the exercise of their
right to self-organization, discrimination against said members in the matter of promotions, and refusal to
bargain. The ACCFA denied the charges and interposed as affirmative and special defenses lack of jurisdiction
of the CIR over the case, illegality of the bargaining contract, expiration of said contract and lack of approval
by the office of the President of the fringe benefits provided for therein. Brushing aside the foregoing
defenses, the CIR in its decision dated March 25, 1963 ordered the ACCFA:
1. To cease and desist from committing further acts tending to discourage the members of complainant
unions in the exercise of their right to self-organization;
2. To comply with and implement the provision of the collective bargaining contract executed on September
4, 1961, including the payment of P30.00 a month living allowance;
3. To bargain in good faith and expeditiously with the herein complainants.
The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the CIR en banc.
Thereupon it brought this appeal by certiorari.
The ACCFA raises the following issues in its petition, to wit:
1. Whether or not the respondent court has jurisdiction over this case, which in turn depends on whether or
not ACCFA exercised governmental or proprietary functions.
2. Whether or not the collective bargaining agreement between the petitioner and the respondent union is
valid; if valid, whether or not it has already lapsed; and if not, whether or not its (sic) fringe benefits are
already enforceable.
3. Whether or not there is a legal and/or factual basis for the finding of the respondent court that the
petitioner had committed acts of unfair labor practice.
4. Whether or not it is within the competence of the court to enforce the collective bargaining agreement
between the petitioner and the respondent unions, the same having already expired.
G.R. No. L-23605
During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8, 1963, the
President of the Philippines signed into law the Agricultural Land Reform Code (Republic Act No. 3844), which
among other things required the reorganization of the administrative machinery of the Agricultural Credit
and Cooperative Financing Administration (ACCFA) and changed its name to Agricultural Credit
Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association and the ACCFA Workers'
Association filed a petition for certification election with the Court of Industrial Relations (Case No. 1327-
MC) praying that they be certified as the exclusive bargaining agents for the supervisors and rank-and-file
employees, respectively, in the ACA. The trial Court in its order dated March 30, 1964 directed the Manager
or Officer-in-Charge of the ACA to allow the posting of said order "for the information of all employees and
workers thereof," and to answer the petition. In compliance therewith, the ACA, while admitting most of the
allegations in the petition, denied that the Unions represented the majority of the supervisors and rank-and-
file workers, respectively, in the ACA. It further alleged that the petition was premature, that the ACA was
not the proper party to be notified and to answer the petition, and that the employees and supervisors could
not lawfully become members of the Unions, nor be represented by them. However, in a joint manifestation
of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of the Agrarian Counsel
in his capacity as such and as counsel for the National Land Reform Council, it was agreed "that the union
petitioners in this case represent the majority of the employees in their respective bargaining units" and that
only the legal issues raised would be submitted for the resolution of the trial Court.
Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court in its
order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA Supervisors' Association
as the sole and exclusive bargaining representatives of the rank-and-file employees and supervisors,
respectively, of the Agricultural Credit Administration." Said order was affirmed by the CIR en banc in its
resolution dated August 24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the CIR
order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition for "lack of
adequate allegations," but the dismissal was later reconsidered when the ACA complied with the formal
requirement stated in said resolution. As prayed for, this Court ordered the CIR to stay the execution of its
order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the Unions
for certification election on the ground that it (ACA) is engaged in governmental functions. The Unions join
the issue on this single point, contending that the ACA forms proprietary functions.
4
Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other governmental
agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the policy enunciated in
Section 2 as follows:
SEC. 2. Declaration of Policy. — It is the policy of the State:
(1) To establish owner-cultivatorships and the economic family-size farm as the basis of Philippine agriculture
and, as a consequence, divert landlord capital in agriculture to industrial development;
(2) To achieve a dignified existence for the small farmers free from pernicious institutional restraints and
practices;
(3) To create a truly viable social and economic structure in agriculture conducive to greater productivity and
higher farm incomes;
(4) To apply all labor laws equally and without discrimination to both industrial and agricultural wage earners;
(5) To provide a more vigorous and systematic land resettlement program and public land distribution; and
(6) To make the small farmers more independent, self-reliant and responsible citizens, and a source of
genuine strength in our democratic society.
The implementation of the policy thus enunciated, insofar as the role of the ACA therein is concerned, is
spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110 provides that "the
administrative machinery of the ACCFA shall be reorganized to enable it to align its activities with the
requirements and objective of this Code and shall be known as the Agricultural Credit Administration." Under
Section 112 the sum of P150,000,000 was appropriated out of national funds to finance the additional credit
functions of the ACA as a result of the land reform program laid down in the Code. Section 103 grants the
ACA the privilege of rediscounting with the Central Bank, the Development Bank of the Philippines and the
Philippine National Bank. Section 105 directs the loaning activities of the ACA "to stimulate the development
of farmers' cooperatives," including those "relating to the production and marketing of agricultural products
and those formed to manage and/or own, on a cooperative basis, services and facilities, such as irrigation
and transport systems, established to support production and/or marketing of agricultural products." Section
106 deals with the extension by ACA of credit to small farmers in order to stimulate agricultural production.
Sections 107 to 112 lay down certain guidelines to be followed in connection with the granting of loans, such
as security, interest and supervision of credit. Sections 113 to 118, inclusive, invest the ACA with certain
rights and powers not accorded to non-governmental entities, thus:
SEC. 113. Auditing of Operations. — For the effective supervision of farmers' cooperatives, the head of the
Agricultural Credit Administration shall have the power to audit their operations, records and books of
account and to issue subpoena and subpoena duces tecum to compel the attendance of witnesses and the
production of books, documents and records in the conduct of such audit or of any inquiry into their affairs.
Any person who, without lawful cause, fails to obey such subpoena or subpoena duces tecum shall, upon
application of the head of Agricultural Credit Administration with the proper court, be liable to punishment
for contempt in the manner provided by law and if he is an officer of the Association, to suspension or
removal from office.
SEC. 114. Prosecution of officials. — The Agricultural Credit Administration, through the appropriate
provincial or city fiscal, shall have the power to file and prosecute any and all actions which it may have
against any and all officials or employees of farmers' cooperatives arising from misfeasance or malfeasance
in office.
SEC. 115. Free Notarial Service. — Any justice of the peace, in his capacity as notary ex-officio, shall render
service free of charge to any person applying for a loan under this Code either in administering the oath or
in the acknowledgment of instruments relating to such loan.
SEC. 116. Free Registration of Deeds. — Any register of deeds shall accept for registration, free of charge any
instrument relative to a loan made under this Code.
SEC. 117. Writing-off Unsecured and Outstanding Loans. — Subject to the approval of the President upon
recommendation of the Auditor General, the Agricultural Credit Administration may write-off from its books,
unsecured and outstanding loans and accounts receivable which may become uncollectible by reason of the
death or disappearance of the debtor, should there be no visible means of collecting the same in the
foreseeable future, or where the debtor has been verified to have no income or property whatsoever with
which to effect payment. In all cases, the writing-off shall be after five years from the date the debtor
defaults.
SEC. 118. Exemption from Duties, Taxes and Levies. — The Agricultural Credit Administration is hereby
exempted from the payment of all duties, taxes, levies, and fees, including docket and sheriff's fees, of
whatever nature or kind, in the performance of its functions and in the exercise of its powers hereunder.
The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as given
by Section 113, is in the nature of the visitorial power of the sovereign, which only a government agency
specially delegated to do so by the Congress may legally exercise.
On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force and Effect
the Plan of Reorganization Proposed by the Special Committee on Reorganization of Agencies for Land
Reform for the Administrative Machinery of the Agricultural Land Reform Code," and contains the following
pertinent provisions:
Section 3. The Land Reform Project Administration2 shall be considered a single organization and the
personnel complement of the member agencies including the legal officers of the Office of the Agrarian
Counsel which shall provide legal services to the LRPA shall be regarded as one personnel pool from which
the requirements of the operations shall be drawn and subject only to the civil service laws, rules and
regulations, persons from one agency may be freely assigned to positions in another agency within the LRPA
when the interest of the service so demands.
Section 4. The Land Reform Project Administration shall be considered as one organization with respect to
the standardization of job descriptions position classification and wage and salary structures to the end that
positions involving the same or equivalent qualifications and equal responsibilities and effort shall have the
same remuneration.
Section 5. The Civil Service laws, rules and regulations with respect to promotions, particularly in the
consideration of person next in rank, shall be made applicable to the Land Reform Project Administration as
a single agency so that qualified individuals in one member agency must be considered in considering
promotion to higher positions in another member agency.
The implementation of the land reform program of the government according to Republic Act No. 3844 is
most certainly a governmental, not a proprietary, function; and for that purpose Executive Order No. 75 has
placed the ACA under the Land Reform Project Administration together with the other member agencies,
the personnel complement of all of which are placed in one single pool and made available for assignment
from one agency to another, subject only to Civil Service laws, rules and regulations, position classification
and wage structures.
5
The appointing authority in respect of the officials and employees of the ACA is the President of the
Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform Council dated
May 22, 1964, as follows:
Appointments of officials and employees of the National Land Reform Council and its agencies may be made
only by the President, pursuant to the provisions of Section 79(D) of the Revised Administrative Code. In
accordance with the policy and practice, such appointments should be prepared for the signature of the
Executive Secretary, "By Authority ofthe President".3
When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA was the
subject of the following exposition on the Senate floor:
Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed to be a public
service of the government to the lessees and farmer-owners of the lands that may be bought after
expropriation from owners. It is the government here that is the lender. The government should not exact a
higher interest than what we are telling a private landowner now in his relation to his tenants if we give to
their farmers a higher rate of interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963)
The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid
irresponsible lending of government money — to pinpoint responsibility for many losses . . . .
Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are appropriating
P150,000,000.00 for the Agricultural Credit Administration which will go to intensified credit operations on
the barrio level . . ." (p. 3, Senate Journal No. 7).
That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of the
cooperative activity of the ACCFA and turning this over to the Agricultural Productivity Commission, so that
the Agricultural Credit Administration will concentrate entirely on the facilitation of credit on the barrio level
with the massive support of 150 million provided by the government. . . . (pp. 4 & 5 of Senate Journal No. 7,
July 3, 1963)
. . . But by releasing them from this situation, we feel that we are putting them in a much better condition
than that in which they are found by providing them with a business-like way of obtaining credit, not
depending on a paternalistic system but one which is business-like — that is to say, a government office,
which on the barrio level will provide them that credit directly . . . . (p. 40, Senate Journal No. 7, July 3, 1963)
(emphasis supplied).
The considerations set forth above militate quite strongly against the recognition of collective bargaining
powers in the respondent Unions within the context of Republic Act No. 875, and hence against the grant of
their basic petition for certification election as proper bargaining units. The ACA is a government office or
agency engaged in governmental, not proprietary functions. These functions may not be strictly what
President Wilson described as "constituent" (as distinguished from "ministrant"),4 such as those relating to
the maintenance of peace and the prevention of crime, those regulating property and property rights, those
relating to the administration of justice and the determination of political duties of citizens, and those
relating to national defense and foreign relations. Under this traditional classification, such constituent
functions are exercised by the State as attributes of sovereignty, and not merely to promote the welfare,
progress and prosperity of the people — these letter functions being ministrant he exercise of which is
optional on the part of the government.
The growing complexities of modern society, however, have rendered this traditional classification of the
functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private
enterprise and initiative and which the government was called upon to enter optionally, and only "because
it was better equipped to administer for the public welfare than is any private individual or group of
individuals,"5 continue to lose their well-defined boundaries and to be absorbed within activities that the
government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the
times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of
economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by
the Constitution itself in its declaration of principle concerning the promotion of social justice.
It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies, the
ACA among them, established to carry out its purposes. There can be no dispute as to the fact that the land
reform program contemplated in the said Code is beyond the capabilities of any private enterprise to
translate into reality. It is a purely governmental function, no less than, say, the establishment and
maintenance of public schools and public hospitals. And when, aside from the governmental objectives of
the ACA, geared as they are to the implementation of the land reform program of the State, the law itself
declares that the ACA is a government office, with the formulation of policies, plans and programs vested no
longer in a Board of Governors, as in the case of the ACCFA, but in the National Land Reform Council, itself a
government instrumentality; and that its personnel are subject to Civil Service laws and to rules of
standardization with respect to positions and salaries, any vestige of doubt as to the governmental character
of its functions disappears.
In view of the foregoing premises, we hold that the respondent Unions are not entitled to the certification
election sought in the Court below. Such certification is admittedly for purposes of bargaining in behalf of
the employees with respect to terms and conditions of employment, including the right to strike as a coercive
economic weapon, as in fact the said unions did strike in 1962 against the ACCFA (G.R. No. L-21824).6 This is
contrary to Section 11 of Republic Act No. 875, which provides:
SEC. 11. Prohibition Against Strike in the Government — The terms and conditions of employment in the
Government, including any political subdivision or instrumentality thereof, are governed by law and it is
declared to be the policy of this Act that employees therein shall not strike for the purposes of securing
changes or modification in their terms and conditions of employment. Such employees may belong to any
labor organization which does not impose the obligation to strike or to join in strike: Provided, However, that
this section shall apply only to employees employed in governmental functions of the Government including
but not limited to governmental corporations.7
With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code and in
view of our ruling as to the governmental character of the functions of the ACA, the decision of the
respondent Court dated March 25, 1963, and the resolution en banc affirming it, in the unfair labor practice
case filed by the ACCFA, which decision is the subject of the present review in G. R. No. L-21484, has become
moot and academic, particularly insofar as the order to bargain collectively with the respondent Unions is
concerned.
What remains to be resolved is the question of fringe benefits provided for in the collective bargaining
contract of September 4, 1961. The position of the ACCFA in this regard is that the said fringe benefits have
not become enforceable because the condition that they should first be approved by the Office of the
President has not been complied with. The Unions, on the other hand, contend that no such condition existed
in the bargaining contract, and the respondent Court upheld this contention in its decision.
It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become effective
unless and until the same is duly ratified by the Board of Governors of the Administration." Such approval
was given even before the formal execution of the agreement, by virtue of "Resolution No. 67, Regular
Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the proviso that "the fringe benefits contained
therein shall take effect only if approved by the office of the President." The condition is, therefore, deemed
to be incorporated into the agreement by reference.
6

On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary, expressed its
approval of the bargaining contract "provided the salaries and benefits therein fixed are not in conflict with
applicable laws and regulations, are believed to be reasonable considering the exigencies of the service and
the welfare of the employees, and are well within the financial ability of the particular corporation to bear."

On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the implementation
of the decision of the respondent Court concerning the fringe benefits, thus:

In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential Benefits accruing from
July 1, 1961 to June 30, 1963 shall be paid to all employees entitled thereto, in the following manner:

A) The sum of P180,000 shall be set aside for the payment of:

1) Night differential benefits for Security Guards.

2) Cost of Living Adjustment and Longevity Pay.

3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in monthly
installments as finances permit but not beyond December 20, 1963.

3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only after all benefits
accruing up to June 30, 1963, as per CIR decision hereinabove referred to shall have been settled in full;
provided, however, that commencing July 1, 1963 and for a period of only two (2) months thereafter (during
which period the ACCFA and the Unions shall negotiate a new Collective Bargaining Agreement) the
provisions of the September 4, 1961 Collective Bargaining Agreement shall be temporarily suspended, except
as to Cost of Living Adjustment and "political" or non-economic privileges and benefits thereunder.

On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant to the
provision thereof requiring such ratification, but with the express qualification that the same was "without
prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The payment of the fringe
benefits agreed upon, to our mind, shows that the same were within the financial capability of the ACCFA
then, and hence justifies the conclusion that this particular condition imposed by the Office of the President
in its approval of the bargaining contract was satisfied.

We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason to set
aside the decision of the respondent Court, but that since the respondent Unions have no right to the
certification election sought by them nor, consequently, to bargain collectively with the petitioner, no further
fringe benefits may be demanded on the basis of any collective bargaining agreement.

The decisions and orders appealed from are set aside and/or modified in accordance with the foregoing
pronouncements. No costs.
7
G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS et al
FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from an order of respondent Court of
Industrial Relations is one of constitutional significance. It is concerned with the expanded role of
government necessitated by the increased responsibility to provide for the general welfare. More
specifically, it deals with the question of whether petitioner, the Philippine Virginia Tobacco Administration,
discharges governmental and not proprietary functions. The landmark opinion of the then Justice, row Chief
Justice, Makalintal in Agricultural Credit and Cooperative Financing Administration v. Confederation of
Unions in Government Corporations and offices, points the way to the right answer.1 It interpreted the then
fundamental law as hostile to the view of a limited or negative state. It is antithetical to the laissez faire
concept. For as noted in an earlier decision, the welfare state concept "is not alien to the philosophy of [the
1935] Constitution."2 It is much more so under the present Charter, which is impressed with an even more
explicit recognition of social and economic rights.3 There is manifest, to recall Laski, "a definite increase in
the profundity of the social conscience," resulting in "a state which seeks to realize more fully the common
good of its members."4 It does not necessarily follow, however, just because petitioner is engaged in
governmental rather than proprietary functions, that the labor controversy was beyond the jurisdiction of
the now defunct respondent Court. Nor is the objection raised that petitioner does not come within the
coverage of the Eight-Hour Labor Law persuasive.5 We cannot then grant the reversal sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants, now private respondents, filed with respondent
Court a petition wherein they alleged their employment relationship, the overtime services in excess of the
regular eight hours a day rendered by them, and the failure to pay them overtime compensation in
accordance with Commonwealth Act No. 444. Their prayer was for the differential between the amount
actually paid to them and the amount allegedly due them.6 There was an answer filed by petitioner
Philippine Virginia Tobacco Administration denying the allegations and raising the special defenses of lack of
a cause of action and lack of jurisdiction.7 The issues were thereafter joined, and the case set for trial, with
both parties presenting their evidence.8 After the parties submitted the case for decision, the then Presiding
Judge Arsenio T. Martinez of respondent Court issued an order sustaining the claims of private respondents
for overtime services from December 23, 1963 up to the date the decision was rendered on March 21, 1970,
and directing petitioner to pay the same, minus what it had already paid. 9 There was a motion for
reconsideration, but respondent Court en banc denied the same. 10 Hence this petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had been noted, would predicate its plea for the
reversal of the order complained of on the basic proposition that it is beyond the jurisdiction of respondent
Court as it is exercising governmental functions and that it is exempt from the operation of Commonwealth
Act No. 444. 11 While, to repeat, its submission as to the governmental character of its operation is to be
given credence, it is not a necessary consequence that respondent Court is devoid of jurisdiction. Nor could
the challenged order be set aside on the additional argument that the Eight-Hour Labor Law is not applicable
to it. So it was, at the outset, made clear.
1. A reference to the enactments creating petitioner corporation suffices to demonstrate the merit
of petitioner's plea that it performs governmental and not proprietary functions. As originally established by
Republic Act No. 2265, 12 its purposes and objectives were set forth thus: "(a) To promote the effective
merchandising of Virginia tobacco in the domestic and foreign markets so that those engaged in the industry
will be placed on a basis of economic security; (b) To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured products, and such marketing conditions as will insure
and stabilize the price of a level sufficient to cover the cost of production plus reasonable profit both in the
local as well as in the foreign market; (c) To create, establish, maintain, and operate processing, warehousing
and marketing facilities in suitable centers and supervise the selling and buying of Virginia tobacco so that
the farmers will enjoy reasonable prices that secure a fair return of their investments; (d) To prescribe rules
and regulations governing the grading, classifying, and inspecting of Virginia tobacco; and (e) To improve the
living and economic conditions of the people engaged in the tobacco industry." 13 The amendatory statute,
Republic Act No. 4155, 14 renders even more evident its nature as a governmental agency. Its first section
on the declaration of policy reads: "It is declared to be the national policy, with respect to the local Virginia
tobacco industry, to encourage the production of local Virginia tobacco of the qualities needed and in
quantities marketable in both domestic and foreign markets, to establish this industry on an efficient and
economic basis, and, to create a climate conducive to local cigarette manufacture of the qualities desired by
the consuming public, blending imported and native Virginia leaf tobacco to improve the quality of locally
manufactured cigarettes." 15 The objectives are set forth thus: "To attain this national policy the following
objectives are hereby adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the Agricultural Credit
Administration (ACA) and the Philippine Virginia Tobacco Administration (PVTA) at the best obtainable prices
and conditions in order that a reinvigorated Virginia tobacco industry may be established on a sound basis;
and 4. Improving the quality of locally manufactured cigarettes through blending of imported and native
Virginia leaf tobacco; such importation with corresponding exportation at a ratio of one kilo of imported to
four kilos of exported Virginia tobacco, purchased by the importer-exporter from the Philippine Virginia
Tobacco Administration." 16
It is thus readily apparent from a cursory perusal of such statutory provisions why petitioner can rightfully
invoke the doctrine announced in the leading Agricultural Credit and Cooperative Financing Administration
decision 17 and why the objection of private respondents with its overtones of the distinction between
constituent and ministrant functions of governments as set forth in Bacani v. National Coconut Corporation
18 if futile. The irrelevance of such a distinction considering the needs of the times was clearly pointed out
by the present Chief Justice, who took note, speaking of the reconstituted Agricultural Credit Administration,
that functions of that sort "may not be strictly what President Wilson described as "constituent" (as
distinguished from "ministrant"),such as those relating to the maintenance of peace and the prevention of
crime, those regulating property and property rights, those relating to the administration of justice and the
determination of political duties of citizens, and those relating to national defense and foreign relations.
Under this traditional classification, such constituent functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare, progress and prosperity of the people — these latter
functions being ministrant, the exercise of which is optional on the part of the government." 19 Nonetheless,
as he explained so persuasively: "The growing complexities of modern society, however, have rendered this
traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and which the government was called upon to enter
optionally, and only "because it was better equipped to administer for the public welfare than is any private
individual or group of individuals", continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was envisioned, indeed adopted as a
national policy, by the Constitution itself in its declaration of principle concerning the promotion of social
justice." 20 Thus was laid to rest the doctrine in Bacani v. National Coconut Corporation, 21 based on the
Wilsonian classification of the tasks incumbent on government into constituent and ministrant in accordance
with the laissez faire principle. That concept, then dominant in economics, was carried into the governmental
sphere, as noted in a textbook on political science, 22 the first edition of which was published in 1898, its
author being the then Professor, later American President, Woodrow Wilson. He took pains to emphasize
that what was categorized by him as constituent functions had its basis in a recognition of what was
demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds of society." 23 The
other functions he would minimize as ministrant or optional.
8
It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative
position which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial
Board 24 could affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms
of economic and political theory, are of the past. The modern period has shown a widespread belief in the
amplest possible demonstration of government activity." 25 The 1935 Constitution, as was indicated earlier,
continued that approach. As noted in Edu v. Ericta:26 "What is more, to erase any doubts, the Constitutional
Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our government the
responsibility of coping with social and economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote the general welfare through state
action." 27 Nor did the opinion in Edu stop there: "To repeat, our Constitution which took effect in 1935
erased whatever doubts there might be on that score. Its philosophy is a repudiation of laissez-faire. One of
the leading members of the Constitutional Convention, Manuel A. Roxas, later the first President of the
Republic, made it clear when he disposed of the objection of Delegate Jose Reyes of Sorsogon, who noted
the "vast extensions in the sphere of governmental functions" and the "almost unlimited power to interfere
in the affairs of industry and agriculture as well as to compete with existing business" as "reflections of the
fascination exerted by [the then] current tendencies' in other jurisdictions. He spoke thus: "My answer is
that this constitution has a definite and well defined philosophy, not only political but social and economic....
If in this Constitution the gentlemen will find declarations of economic policy they are there because they
are necessary to safeguard the interest and welfare of the Filipino people because we believe that the days
have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony,
the freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered
by the artificial boundaries which a constitutional provision automatically imposes." 28
It would be then to reject what was so emphatically stressed in the Agricultural Credit Administration
decision about which the observation was earlier made that it reflected the philosophy of the 1935
Constitution and is even more in consonance with the expanded role of government accorded recognition in
the present Charter if the plea of petitioner that it discharges governmental function were not heeded. That
path this Court is not prepared to take. That would be to go backward, to retreat rather than to advance.
Nothing can thus be clearer than that there is no constitutional obstacle to a government pursuing lines of
endeavor, formerly reserved for private enterprise. This is one way, in the language of Laski, by which
through such activities, "the harsh contract which [does] obtain between the levels of the rich and the poor"
may be minimized. 29 It is a response to a trend noted by Justice Laurel in Calalang v. Williams 30 for the
humanization of laws and the promotion of the interest of all component elements of society so that man's
innate aspirations, in what was so felicitously termed by the First Lady as "a compassionate society" be
attained. 31
2. The success that attended the efforts of petitioner to be adjudged as performing governmental
rather than proprietary functions cannot militate against respondent Court assuming jurisdiction over this
labor dispute. So it was mentioned earlier. As far back as Tabora v. Montelibano, 32 this Court, speaking
through Justice Padilla, declared: The NARIC was established by the Government to protect the people
against excessive or unreasonable rise in the price of cereals by unscrupulous dealers. With that main
objective there is no reason why its function should not be deemed governmental. The Government owes
its very existence to that aim and purpose — to protect the people." 33 In a subsequent case, Naric Worker's
Union v. Hon. Alvendia, 34 decided four years later, this Court, relying on Philippine Association of Free Labor
Unions v. Tan, 35 which specified the cases within the exclusive jurisdiction of the Court of Industrial
Relations, included among which is one that involves hours of employment under the Eight-Hour Labor Law,
ruled that it is precisely respondent Court and not ordinary courts that should pass upon that particular labor
controversy. For Justice J. B. L. Reyes, the ponente, the fact that there were judicial as well as administrative
and executive pronouncements to the effect that the Naric was performing governmental functions did not
suffice to confer competence on the then respondent Judge to issue a preliminary injunction and to entertain
a complaint for damages, which as pointed out by the labor union, was connected with an unfair labor
practice. This is emphasized by the dispositive portion of the decision: "Wherefore, the restraining orders
complained of, dated May 19, 1958 and May 27, 1958, are set aside, and the complaint is ordered dismissed,
without prejudice to the National Rice and Corn Corporation's seeking whatever remedy it is entitled to in
the Court of Industrial Relations." 36 Then, too, in a case involving petitioner itself, Philippine Virginia
Tobacco Administration, 37 where the point in dispute was whether it was respondent Court or a court of
first instance that is possessed of competence in a declaratory relief petition for the interpretation of a
collective bargaining agreement, one that could readily be thought of as pertaining to the judiciary, the
answer was that "unless the law speaks clearly and unequivocally, the choice should fall on the Court of
Industrial Relations." 38 Reference to a number of decisions which recognized in the then respondent Court
the jurisdiction to determine labor controversies by government-owned or controlled corporations lends to
support to such an approach. 39 Nor could it be explained only on the assumption that proprietary rather
than governmental functions did call for such a conclusion. It is to be admitted that such a view was not
previously bereft of plausibility. With the aforecited Agricultural Credit and Cooperative Financing
Administration decision rendering obsolete the Bacani doctrine, it has, to use a Wilsonian phrase, now lapsed
into "innocuous desuetude." 40 Respondent Court clearly was vested with jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor Law 41 does not apply to it hardly
deserves any extended consideration. There is an air of casualness in the way such an argument was
advanced in its petition for review as well as in its brief. In both pleadings, it devoted less than a full page to
its discussion. There is much to be said for brevity, but not in this case. Such a terse and summary treatment
appears to be a reflection more of the inherent weakness of the plea rather than the possession of an
advocate's enviable talent for concision. It did cite Section 2 of the Act, but its very language leaves no doubt
that "it shall apply to all persons employed in any industry or occupation, whether public or private ... ." 42
Nor are private respondents included among the employees who are thereby barred from enjoying the
statutory benefits. It cited Marcelo v. Philippine National Red Cross 43 and Boy Scouts of the Philippines v.
Araos.44 Certainly, the activities to which the two above public corporations devote themselves can easily
be distinguished from that engaged in by petitioner. A reference to the pertinent sections of both Republic
Acts 2265 and 2155 on which it relies to obtain a ruling as to its governmental character should render clear
the differentiation that exists. If as a result of the appealed order, financial burden would have to be borne
by petitioner, it has only itself to blame. It need not have required private respondents to render overtime
service. It can hardly be surmised that one of its chief problems is paucity of personnel. That would indeed
be a cause for astonishment. It would appear, therefore, that such an objection based on this ground
certainly cannot suffice for a reversal. To repeat, respondent Court must be sustained.
WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of respondent Court en banc of May
8, 1970 denying a motion for reconsideration are hereby affirmed. The last sentence of the Order of March
21, 1970 reads as follows: "To find how much each of them [private respondents] is entitled under this
judgment, the Chief of the Examining Division, or any of his authorized representative, is hereby directed to
make a reexamination of records, papers and documents in the possession of respondent PVTA pertinent
and proper under the premises and to submit his report of his findings to the Court for further disposition
thereof." Accordingly, as provided by the New Labor Code, this case is referred to the National Labor
Relations Commission for further proceedings conformably to law. No costs.
9
G.R. No. L-25843 July 25, 1974
MELCHORA CABANAS, plaintiff-appellee,
vs.
FRANCISCO PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.
FERNANDO, J.:p
The disputants in this appeal from a question of law from a lower court decision are the mother and the
uncle of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased father.
The dispute centers as to who of them should be entitled to act as trustee thereof. The lower court applying
the appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case. Defendant
uncle appealed. As noted, the lower court acted the way it did following the specific mandate of the law. In
addition, it must have taken into account the principle that in cases of this nature the welfare of the child is
the paramount consideration. It is not an unreasonable assumption that between a mother and an uncle,
the former is likely to lavish more care on and pay greater attention to her. This is all the more likely
considering that the child is with the mother. There are no circumstances then that did militate against what
conforms to the natural order of things, even if the language of the law were not as clear. It is not to be lost
sight of either that the judiciary pursuant to its role as an agency of the State as parens patriae, with an even
greater stress on family unity under the present Constitution, did weigh in the balance the opposing claims
and did come to the conclusion that the welfare of the child called for the mother to be entrusted with such
responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as to the facts. "1 The insured, Florentino Pilapil
had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at
the time the complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the
deceased. The deceased insured himself and instituted as beneficiary, his child, with his brother to act as
trustee during her minority. Upon his death, the proceeds were paid to him. Hence this complaint by the
mother, with whom the child is living, seeking the delivery of such sum. She filed the bond required by the
Civil Code. Defendant would justify his claim to the retention of the amount in question by invoking the terms
of the insurance policy.2
After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the defendant
to deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320 and 321 of
the Civil Code. The former provides: "The father, or in his absence the mother, is the legal administrator of
the property pertaining to the child under parental authority. If the property is worth more than two
thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First
Instance."3 The latter states: "The property which the unemancipated child has acquired or may acquire with
his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father
or mother under whom he is under parental authority and whose company he lives; ...4
Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance
proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of
the plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said
minor acquired this property by lucrative title. Said property, therefore, belongs to the minor child in
ownership, and in usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to
possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in conflict
with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the rights of
the minor, Millian Pilapil, the plaintiff should file an additional bond in the guardianship proceedings, Sp.
Proc. No. 2418-R of this Court to raise her bond therein to the total amount of P5,000.00."5
It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code
provisions can be disputed, the decision must stand. There is no ambiguity in the language employed. The
words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no doubt that
where codal or statutory norms are cast in categorical language, the task before it is not one of interpretation
but of application.6 So it must be in this case. So it was in the appealed decision.
1. It would take more than just two paragraphs as found in the brief for the defendant-appellant7
to blunt the force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of
policy, the conclusion will remain unaltered. What is paramount, as mentioned at the outset, is the welfare
of the child. It is in consonance with such primordial end that Articles 320 and 321 have been worded. There
is recognition in the law of the deep ties that bind parent and child. In the event that there is less than full
measure of concern for the offspring, the protection is supplied by the bond required. With the added
circumstance that the child stays with the mother, not the uncle, without any evidence of lack of maternal
care, the decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the
assumption, both logical and natural, that infidelity to the trust imposed by the deceased is much less in the
case of a mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code of Spain,
the source of Article 320 of the Civil Code, was of that view: Thus "El derecho y la obligacion de administrar
el Patrimonio de los hijos es una consecuencia natural y lógica de la patria potestad y de la presunción de
que nadie cuidará de los bienes de acquéllos con mas cariño y solicitude que los padres. En nuestro Derecho
antiguo puede decirse que se hallaba reconocida de una manera indirecta aquelia doctrina, y asi se
desprende de la sentencia del Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit.
XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los Codigos extranjeros, con las
limitaciones y requisitos de que trataremos mis adelante."8
2. The appealed decision is supported by another cogent consideration. It is buttressed by its
adherence to the concept that the judiciary, as an agency of the State acting as parens patriae, is called upon
whenever a pending suit of litigation affects one who is a minor to accord priority to his best interest. It may
happen, as it did occur here, that family relations may press their respective claims. It would be more in
consonance not only with the natural order of things but the tradition of the country for a parent to be
preferred. it could have been different if the conflict were between father and mother. Such is not the case
at all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State in its role of
parens patriae, cannot remain insensible to the validity of her plea. In a recent case,9 there is this quotation
from an opinion of the United States Supreme Court: "This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has
no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great
detriment of the people and the destruction of their liberties." What is more, there is this constitutional
provision vitalizing this concept. It reads: "The State shall strengthen the family as a basic social institution."
10 If, as the Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it does not
admit of doubt that even if a stronger case were presented for the uncle, still deference to a constitutional
mandate would have led the lower court to decide as it did.
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.
10
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under the
regime of the so-called Republic of the Philippines established during the Japanese military occupation of
these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground
that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of
invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under the
Philippine Executive Commission and the Republic of the Philippines established during the Japanese military
occupation, and that, furthermore, the lower courts have no jurisdiction to take cognizance of and continue
judicial proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an
enabling law granting such authority. And the same respondent, in his answer and memorandum filed in this
Court, contends that the government established in the Philippines during the Japanese occupation were no
de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their
Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the
Army." In said proclamation, it was also provided that "so far as the Military Administration permits, all the
laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public officials shall remain in their present posts and
carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of the
Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was instructed
to proceed to the immediate coordination of the existing central administrative organs and judicial courts,
based upon what had existed therefore, with approval of the said Commander in Chief, who was to exercise
jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative organization, issued
Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the Supreme
Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal courts under
the Commonwealth were continued with the same jurisdiction, in conformity with the instructions given to
the said Chairman of the Executive Commission by the Commander in Chief of Japanese Forces in the
Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed by the
Philippine Executive Commission in exercising legislative, executive and judicial powers. Section 1 of said
Order provided that "activities of the administration organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial change
was effected thereby in the organization and jurisdiction of the different courts that functioned during the
Philippine Executive Commission, and in the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the Philippines and
the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people
in areas of the Philippines free of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy
occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General MacArthur,
on behalf of the Government of the United States, solemnly declared "the full powers and responsibilities
under the Constitution restored to the Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be resolved in the
present case may be reduced to the following:(1) Whether the judicial acts and proceedings of the court
existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or reoccupation of the Philippines by the
United States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by General
Douglas MacArthur, Commander in Chief of the United States Army, in which he declared "that all laws,
regulations and processes of any of the government in the Philippines than that of the said Commonwealth
are null and void and without legal effect in areas of the Philippines free of enemy occupation and control,"
has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the said judicial
acts and proceedings have not been invalidated by said proclamation, whether the present courts of the
Commonwealth, which were the same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said courts at the time the
Philippines were reoccupied and liberated by the United States and Filipino forces, and the Commonwealth
of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules of international
law the judicial acts and proceedings of the courts established in the Philippines under the Philippine
Executive Commission and the Republic of the Philippines were good and valid and remained good and valid
even after the liberation or reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the Philippine
Executive Commission and Republic of the Philippines during the Japanese military occupation or regime
were de facto governments. If they were, the judicial acts and proceedings of those governments remain
good and valid even after the liberation or reoccupation of the Philippines by the American and Filipino
forces.
11
There are several kinds of de facto governments. The first, or government de facto in a proper legal sense, is
that government that gets possession and control of, or usurps, by force or by the voice of the majority, the
rightful legal governments and maintains itself against the will of the latter, such as the government of
England under the Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that
which is established and maintained by military forces who invade and occupy a territory of the enemy in
the course of war, and which is denominated a government of paramount force, as the cases of Castine, in
Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during
the war with Mexico, by the troops of the United States. And the third is that established as an independent
government by the inhabitants of a country who rise in insurrection against the parent state of such as the
government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but
only with the second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case
of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more aptly denominated a government of
paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an established and lawful government; and
(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government. Actual governments of this sort are established over
districts differing greatly in extent and conditions. They are usually administered directly by military
authority, but they may be administered, also, civil authority, supported more or less directly by military
force. . . . One example of this sort of government is found in the case of Castine, in Mine, reduced to British
possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of
Tampico, occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular governments at
war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same
subject of said Section III provides "the authority of the legislative power having actually passed into the
hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses all the
powers of a de facto government, and he can suspended the old laws and promulgate new ones and make
such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely prevented by the
circumstances prevailing in the occupied territory, the municipal laws in force in the country, that is, those
laws which enforce public order and regulate social and commercial life of the country. On the other hand,
laws of a political nature or affecting political relations, such as, among others, the right of assembly, the
right to bear arms, the freedom of the press, and the right to travel freely in the territory occupied, are
considered as suspended or in abeyance during the military occupation. Although the local and civil
administration of justice is suspended as a matter of course as soon as a country is militarily occupied, it is
not usual for the invader to take the whole administration into his own hands. In practice, the local ordinary
tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of
the occupant. These principles and practice have the sanction of all publicists who have considered the
subject, and have been asserted by the Supreme Court and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p.
444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do
not look to the Constitution or political institutions of the conqueror, for authority to establish a government
for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists
and decisions of courts — in fine, from the law of nations. . . . The municipal laws of a conquered territory,
or the laws which regulate private rights, continue in force during military occupation, excepts so far as they
are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto
government, and can at his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory, which were later
embodied in the said Hague Conventions, President McKinley, in his executive order to the Secretary of War
of May 19,1898, relating to the occupation of the Philippines by United States forces, said in part: "Though
the powers of the military occupant are absolute and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of
person and property and provide for the punishment of crime, are considered as continuing in force, so far
as they are compatible with the new order of things, until they are suspended or superseded by the
occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and
to be administered by the ordinary tribunals, substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other
officials connected with the administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under the supervision of the
American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de facto
government. In that case, it was held that "the central government established for the insurgent States
differed from the temporary governments at Castine and Tampico in the circumstance that its authority did
no originate in lawful acts of regular war; but it was not, on the account, less actual or less supreme. And we
think that it must be classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the
validity of the acts of the Confederate States, said: "The same general form of government, the same general
laws for the administration of justice and protection of private rights, which had existed in the States prior
to the rebellion, remained during its continuance and afterwards. As far as the Acts of the States do not
impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the
Constitution, they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall.,
570; 21 Law. ed., 657): "The existence of a state of insurrection and war did not loosen the bonds of society,
or do away with civil government or the regular administration of the laws. Order was to be preserved, police
regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated,
estates settled, and the transfer and descent of property regulated, precisely as in the time of peace. No one,
that we are aware of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States
touching these and kindered subjects, where they were not hostile in their purpose or mode of enforcement
to the authority of the National Government, and did not impair the rights of citizens under the Constitution'.
The same doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was
done in respect of such matters under the authority of the laws of these local de facto governments should
not be disregarded or held to be invalid merely because those governments were organized in hostility to
the Union established by the national Constitution; this, because the existence of war between the United
12
States and the Confederate States did not relieve those who are within the insurrectionary lines from the
necessity of civil obedience, nor destroy the bonds of society nor do away with civil government or the
regular administration of the laws, and because transactions in the ordinary course of civil society as
organized within the enemy's territory although they may have indirectly or remotely promoted the ends of
the de facto or unlawful government organized to effect a dissolution of the Union, were without blame
'except when proved to have been entered into with actual intent to further invasion or insurrection:'" and
"That judicial and legislative acts in the respective states composing the so-called Confederate States should
be respected by the courts if they were not hostile in their purpose or mode of enforcement to the authority
of the National Government, and did not impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by Order
No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de facto government of the second kind. It
was not different from the government established by the British in Castine, Maine, or by the United States
in Tampico, Mexico. As Halleck says, "The government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such
government be called a military or civil government. Its character is the same and the source of its authority
the same. In either case it is a government imposed by the laws of war, and so far it concerns the inhabitants
of such territory or the rest of the world, those laws alone determine the legality or illegality of its acts." (Vol.
2, p. 466.) The fact that the Philippine Executive Commission was a civil and not a military government and
was run by Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied
the greater part of Prussia, he retained the existing administration under the general direction of a french
official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading
France, authorized the local authorities to continue the exercise of their functions, apparently without
appointing an English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when
they invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every
department of administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p.
505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same character
as the Philippine Executive Commission, and the ultimate source of its authority was the same — the
Japanese military authority and government. As General MacArthur stated in his proclamation of October
23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled
as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free
expression of the people's will nor the sanction of the Government of the United States." Japan had no legal
power to grant independence to the Philippines or transfer the sovereignty of the United States to, or
recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations. For it is a well-established doctrine in International Law, recognized
in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being essentially provisional,
does not serve to transfer sovereignty over the territory controlled although the de jure government is during
the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs.
Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs.
Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme contrived by Japan to
delude the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring
or turning over the rights of government into the hands of Filipinos. It was established under the mistaken
belief that by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people
in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who, taking
advantage of the withdrawal of the American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government under the name with the support
and backing of Japan, such government would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And as such, it would have been a de
facto government similar to that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in numerous cases, notably those of
Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu during the Spanish-American war,
recognized as a de facto government by the Supreme Court of the United States in the case of McCleod vs.
United States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated
the Island of Cebu on December 25, 1898, having first appointed a provisional government, and shortly
afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the Islands and
established a republic, governing the Islands until possession thereof was surrendered to the United States
on February 22, 1898. And the said Supreme Court held in that case that "such government was of the class
of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a government of paramount
force . . '." That is to say, that the government of a country in possession of belligerent forces in insurrection
or rebellion against the parent state, rests upon the same principles as that of a territory occupied by the
hostile army of an enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a political complexion, were good
and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino
forces under the leadership of General Douglas MacArthur. According to that well-known principle in
international law, the fact that a territory which has been occupied by an enemy comes again into the power
of its legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects of
acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts
done under his control, when they are not of a political complexion, administrative acts so done, to the
extent that they take effect during the continuance of his control, and the various acts done during the same
time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an invasion; and as between the state and the individuals
the evil would be scarcely less, — it would be hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals
should be annulled by the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p.
518.) And when the occupation and the abandonment have been each an incident of the same war as in the
present case, postliminy applies, even though the occupant has acted as conqueror and for the time
substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the
Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is
confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares
null and void all laws, regulations and processes of the governments established in the Philippines during the
Japanese occupation, for it would not have been necessary for said proclamation to abrogate them if they
were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October 23, 1944
13
— that is, whether it was the intention of the Commander in Chief of the American Forces to annul and void
thereby all judgments and judicial proceedings of the courts established in the Philippines during the
Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to the judicial processes,
but also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines
or other governmental agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known principles of international law
all judgements and judicial proceedings, which are not of a political complexion, of the de facto governments
during the Japanese military occupation were good and valid before and remained so after the occupied
territory had come again into the power of the titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas MacArthur, in using the phrase "processes of any
other government" in said proclamation, to refer to judicial processes, in violation of said principles of
international law. The only reasonable construction of the said phrase is that it refers to governmental
processes other than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the law of
nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of his government,
may not unlawfully suspend existing laws and promulgate new ones in the occupied territory, if and when
the exigencies of the military occupation demand such action. But even assuming that, under the law of
nations, the legislative power of a commander in chief of military forces who liberates or reoccupies his own
territory which has been occupied by an enemy, during the military and before the restoration of the civil
regime, is as broad as that of the commander in chief of the military forces of invasion and occupation
(although the exigencies of military reoccupation are evidently less than those of occupation), it is to be
presumed that General Douglas MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional commander in chief of the United States
Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court of the
United States from the early period of its existence, applied by the Presidents of the United States, and later
embodied in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of
the Philippines full respect and obedience to the Constitution of the Commonwealth of the Philippines,"
should not only reverse the international policy and practice of his own government, but also disregard in
the same breath the provisions of section 3, Article II, of our Constitution, which provides that "The
Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles
of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would result, and great
public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to
be again settled accrued or vested rights nullified, sentences passed on criminals set aside, and criminals
might easily become immune for evidence against them may have already disappeared or be no longer
available, especially now that almost all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests would be endangered or
sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that
such construction was not intended by the makers of the law, unless required by clear and unequivocal
words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of
the tribunals which the belligerent occupant had the right and duty to establish in order to insure public
order and safety during military occupation, would be sufficient to paralyze the social life of the country or
occupied territory, for it would have to be expected that litigants would not willingly submit their litigation
to courts whose judgements or decisions may afterwards be annulled, and criminals would not be deterred
from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments
rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during
the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by
the President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in
him by the Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished
the Court of Appeals, and provided "that all case which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly recognizes that
the judgments and proceedings of the courts during the Japanese military occupation have not been
invalidated by the proclamation of General MacArthur of October 23, because the said Order does not say
or refer to cases which have been duly appealed to said court prior to the Japanese occupation, but to cases
which had therefore, that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to
be presumed that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before the restoration
of the Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March 10,
1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the
Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said
that an occupier's acts are valid and under international law should not be abrogated by the subsequent
conqueror, it must be remembered that no crucial instances exist to show that if his acts should be reversed,
any international wrong would be committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than this." (Wheaton, International
Law, War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws the
conclusion that whether the acts of the occupant should be considered valid or not, is a question that is up
to the restored government to decide; that there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that denies to the restored government the
right of exercise its discretion on the matter, imposing upon it in its stead the obligation of recognizing and
enforcing the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier,
such as the laws, regulations and processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any other
government" and not "judicial processes" prisely, it is not necessary to determine whether or not General
Douglas MacArthur had power to annul and set aside all judgments and proceedings of the courts during the
Japanese occupation. The question to be determined is whether or not it was his intention, as representative
of the President of the United States, to avoid or nullify them. If the proclamation had, expressly or by
necessary implication, declared null and void the judicial processes of any other government, it would be
necessary for this court to decide in the present case whether or not General Douglas MacArthur had
authority to declare them null and void. But the proclamation did not so provide, undoubtedly because the
author thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of
liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result from the usages
established between civilized nations, the laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d
ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which we have already
quoted in discussing the first question, imposes upon the occupant the obligation to establish courts; and
Article 23 (h), section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . .
14
suspended . . . in a Court of Law the rights and action of the nationals of the hostile party," forbids him to
make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights.
(Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.)
If a belligerent occupant is required to establish courts of justice in the territory occupied, and forbidden to
prevent the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication,
the military commander of the forces of liberation or the restored government is restrained from nullifying
or setting aside the judgments rendered by said courts in their litigation during the period of occupation.
Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted, for to declare them
null and void would be tantamount to suspending in said courts the right and action of the nationals of the
territory during the military occupation thereof by the enemy. It goes without saying that a law that enjoins
a person to do something will not at the same time empower another to undo the same. Although the
question whether the President or commanding officer of the United States Army has violated restraints
imposed by the constitution and laws of his country is obviously of a domestic nature, yet, in construing and
applying limitations imposed on the executive authority, the Supreme Court of the United States, in the case
of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international law
and from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of the
forces of the United States in South Carolina after the end of the Civil War, wholly annulling a decree
rendered by a court of chancery in that state in a case within its jurisdiction, was declared void, and not
warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15
id., 14), which defined the powers and duties of military officers in command of the several states then lately
in rebellion. In the course of its decision the court said; "We have looked carefully through the acts of March
2, 1867 and July 19, 1867. They give very large governmental powers to the military commanders designated,
within the States committed respectively to their jurisdiction; but we have found nothing to warrant the
order here in question. . . . The clearest language would be necessary to satisfy us that Congress intended
that the power given by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful
to no good end that can be imagined. Whether Congress could have conferred the power to do such an act
is a question we are not called upon to consider. It is an unbending rule of law that the exercise of military
power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency
requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp.,
161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we hold
that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared
that "all laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation
and control," has not invalidated the judicial acts and proceedings, which are not a political complexion, of
the courts of justice in the Philippines that were continued by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the reoccupation of liberation of the
Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are the
same as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue now the
proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or liberated
by the American and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial administration is suspended as a
matter of course as soon as military occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the
laws of the country which he is enjoined, unless absolutely prevented, to respect. As stated in the above-
quoted Executive Order of President McKinley to the Secretary of War on May 19, 1898, "in practice, they
(the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by
the ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far
as possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a theoretical
point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all
preexisting forms of government, legislative, executive and judicial. From the stand-point of actual practice
such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor, International Public Law,
p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of
society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional,
and the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces
proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law
over the territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth,
as well as executive and judicial institutions, shall continue to be affective for the time being as in the past,"
and "all public officials shall remain in their present post and carry on faithfully their duties as before." When
the Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on
January 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January
30 and February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and
justices of the peace of courts, with the same jurisdiction in conformity with the instructions given by the
Commander in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14,
1943 when the so-called Republic of the Philippines was inaugurated, the same courts were continued with
no substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had
been continued during the Japanese military administration, the Philippine Executive Commission, and the
so-called Republic of the Philippines, it stands to reason that the same courts, which had become
reestablished and conceived of as having in continued existence upon the reoccupation and liberation of the
Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may continue the
proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a
state or other governmental entity, upon the removal of a foreign military force, resumes its old place with
its right and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous
to that which enables elastic bodies to regain their original shape upon removal of the external force, — and
subject to the same exception in case of absolute crushing of the whole fibre and content." (Taylor,
International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court
of First Instance of Manila presided over by him "has no authority to take cognizance of, and continue said
proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the
Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and the left pending therein," is "that said courts were
a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of
the Commonwealth prior to Japanese occupation, but they had become the laws — and the courts had
become the institutions — of Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became
later on the laws and institutions of the Philippine Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the
country occupied if continued by the conqueror or occupant, become the laws and the courts, by adoption,
of the sovereign nation that is militarily occupying the territory. Because, as already shown, belligerent or
15
military occupation is essentially provisional and does not serve to transfer the sovereignty over the occupied
territory to the occupant. What the court said was that, if such laws and institutions are continued in use by
the occupant, they become his and derive their force from him, in the sense that he may continue or set
them aside. The laws and institution or courts so continued remain the laws and institutions or courts of the
occupied territory. The laws and the courts of the Philippines, therefore, did not become, by being continued
as required by the law of nations, laws and courts of Japan. The provision of Article 45, section III, of the
Hague Conventions of 1907 which prohibits any compulsion of the population of occupied territory to swear
allegiance to the hostile power, "extends to prohibit everything which would assert or imply a change made
by the invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts of
justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According
to Wheaton, however, the victor need not allow the use of that of the legitimate government. When in 1870,
the Germans in France attempted to violate that rule by ordering, after the fall of the Emperor Napoleon,
the courts of Nancy to administer justice in the name of the "High German Powers occupying Alsace and
Lorraine," upon the ground that the exercise of their powers in the name of French people and government
was at least an implied recognition of the Republic, the courts refused to obey and suspended their sitting.
Germany originally ordered the use of the name of "High German Powers occupying Alsace and Lorraine,"
but later offered to allow use of the name of the Emperor or a compromise. (Wheaton, International Law,
War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues
until changed by the some competent legislative power. It is not change merely by change of sovereignty."
(Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13
Met., 68.) As the same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131):
"There can no break or interregnum in law. From the time the law comes into existence with the first-felt
corporateness of a primitive people it must last until the final disappearance of human society. Once created,
it persists until a change take place, and when changed it continues in such changed condition until the next
change, and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of
constitution, the law continues unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which create and confer
upon them their jurisdiction, it is evident that such laws, not being a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed by legislative acts.
A proclamation that said laws and courts are expressly continued is not necessary in order that they may
continue in force. Such proclamation, if made, is but a declaration of the intention of respecting and not
repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty over these
Islands, which she had afterwards transferred to the so-called Republic of the Philippines, and that the laws
and the courts of these Islands had become the courts of Japan, as the said courts of the laws creating and
conferring jurisdiction upon them have continued in force until now, it necessarily follows that the same
courts may continue exercising the same jurisdiction over cases pending therein before the restoration of
the Commonwealth Government, unless and until they are abolished or the laws creating and conferring
jurisdiction upon them are repealed by the said government. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or transferred to another court, are not
required by the mere change of government or sovereignty. They are necessary only in case the former
courts are abolished or their jurisdiction so change that they can no longer continue taking cognizance of the
cases and proceedings commenced therein, in order that the new courts or the courts having jurisdiction
over said cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands ceased
and the Islands came into the possession of the United States, the "Audiencia" or Supreme Court was
continued and did not cease to exist, and proceeded to take cognizance of the actions pending therein upon
the cessation of the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the
Supreme Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First
Instance of the Islands during the Spanish regime continued taking cognizance of cases pending therein upon
the change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter
IV the present Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted
during the Japanese occupation, but a mere proclamation or order that the courts in the Island were
continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the
civil jurisdiction of the provost courts created by the military government of occupation in the Philippines
during the Spanish-American War of 1898, the same section 78 provided for the transfer of all civil actions
then pending in the provost courts to the proper tribunals, that is, to the justices of the peace courts, Court
of First Instance, or Supreme Court having jurisdiction over them according to law. And later on, when the
criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186, the
same section provided that criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the Japanese regime and,
therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already quoted in
support of our conclusion in connection with the second question. Said Executive Order provides"(1) that
the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be abolished, as
it is hereby abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order
considers that the Court of Appeals abolished was the same that existed prior to, and continued after, the
restoration of the Commonwealth Government; for, as we have stated in discussing the previous question,
almost all, if not all, of the cases pending therein, or which had theretofore (that is, up to March 10, 1945)
been duly appealed to said court, must have been cases coming from the Courts of First Instance during the
so-called Republic of the Philippines. If the Court of Appeals abolished by the said Executive Order was not
the same one which had been functioning during the Republic, but that which had existed up to the time of
the Japanese occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be transmitted to the
Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction
to continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at the time of the restoration of
the said Government; and that the respondent judge of the court, having refused to act and continue him
does a duty resulting from his office as presiding judge of that court, mandamus is the speedy and adequate
remedy in the ordinary course of law, especially taking into consideration the fact that the question of
jurisdiction herein involved does affect not only this particular case, but many other cases now pending in all
the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue
to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So
ordered
16
G.R. No. L-49 November 12, 1945
WILLIAM F. PERALTA, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.
FERIA, J.:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the supervision
and control of the production, procurement and distribution of goods and other necessaries as defined in
section 1 of Act No. 9 of the National Assembly of the so-called Republic of the Philippines, was prosecuted
for the crime of robbery as defined and penalized by section 2 (a) of Act No. 65 of the same Assembly. He
was found guilty and sentenced to life imprisonment, which he commenced to serve on August 21, 1944, by
the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7 promulgated
by the President of the so-called Republic of the Philippines, pursuant to the authority conferred upon him
by the Constitution and laws of the said Republic. And the procedure followed in the trial was the summary
one established in Chapter II of Executive Order No. 157 of the Chairman of the Executive Commission, made
applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No.
7.
The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal
Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces of the Japanese
Imperial Army, the aims and purposes of which are repugnant to those aims and political purposes of the
Commonwealth of the Philippines, as well as those of the United States of America, and therefore, null and
void ab initio," that the provisions of said Ordinance No. 7 are violative of the fundamental laws of the
Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional rights"; that
the petitioner herein is being punished by a law created to serve the political purpose of the Japanese
Imperial Army in the Philippines, and "that the penalties provided for are much (more) severe than the
penalties provided for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for the
reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto Jose
y Santos, defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings taken and had before
the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the petition
for habeas corpus should be granted. The reasons advanced by the Solicitor General in said brief and in his
reply memorandum in support of his contention are, that the Court of Special and Exclusive Criminal
Jurisdiction created, and the summary procedure prescribed therefor, by said Ordinance No. 7 in connection
with Executive Order No. 157 of the Chairman of the Executive Commission are tinged with political
complexion; that the procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates the
Constitution of the Commonwealth, and impairs the Constitutional rights of accused persons under their
legitimate Constitution. And he cites, in support of this last proposition, the decisions of the Supreme Court
of the United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581);
United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs. United States (20 Wall., 459).
The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits that
the petition for habeas corpus be denied on the following grounds: That the Court of Special and Exclusive
Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a political
complexion, for said Court was created, and the crimes and offenses placed under its jurisdiction were
penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No. 7; that the
right to appeal in a criminal case is not a constitutional right; and that the summary procedure established
in said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18) of the Constitution of the
Commonwealth, to the effect that no person shall be compelled to be a witness against himself, nor of the
provision of section 1 (1) of the same Article that no person shall be deprived of life, liberty, or property
without due process of law.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the
Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the
accused and witnesses before trial in order to clarify the points in dispute; that the refusal of the accused to
answer the questions may be considered unfavorable to him; that if from the facts admitted at the
preliminary interrogatory it appears that the defendant is guilty, he may be immediately convicted; and that
the sentence of the sentence of the court is not appealable, except in case of death penalty which cannot be
executed unless and until reviewed and affirmed by a special division of the Supreme Court composed of
three Justices.
Before proceeding further, and in order to determine the law applicable to the questions involved in the
present case, it is necessary to bear in mind the nature and status of the government established in these
Islands by the Japanese forces of occupation under the designation of Republic of the Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante), recently decided,
this Court, speaking through the Justice who pens this decision, held:
In view of the foregoing, it is evident that the Philippines Executive Commission, which was organized by
Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de facto government of the second kind. It
was not different from the government established by the British in Castine, Maine, or by the United States
in Tanpico, Mexico. As Halleck says, "the government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such
government be called a military or civil government. Its character is the same and the source of its authority
the same. In either case it is a government imposed by the laws of war and so far as it concerns the
inhabitants of such territory or the rest of the world those laws alone determine the legality or illegality of
its acts." (vol. 2 p. 466.) The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals is of no consequence.
And speaking of the so-called Republic of the Philippines in the same decision, this Court said:
The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a government
established by the belligerent occupant or the Japanese forces of occupation. It was of the same character
as the Philippine Executive Commission, and the ultimate source of its authority was the same — the
Japanese military authority and government. As General MacArthur stated in his proclamation of October
23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled
as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free
expression of the peoples" will nor the sanction of the Government of the United States.' Japan had no legal
power to grant independence to the Philippines or transfer the sovereignty of the United States to, or
recognize the latent sovereignty of the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations.
17
As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount
force), as the government established in Castine, Maine, during its occupation by the British forces and as
that of Tampico, Mexico, occupied during the war with that the country by the United State Army, the
question involved in the present case cannot be decided in the light of the Constitution of the
Commonwealth Government; because the belligerent occupant was totally independent of the constitution
of the occupied territory in carrying out the administration over said territory; and the doctrine laid down by
the Supreme Court of the United States in the cases involving the validity of judicial and legislative acts of
the Confederate States, considered as de facto governments of the third kind, does not apply to the acts of
the so-called Republic of the Philippines which is a de facto government of paramount force. The Constitution
of the so-called Republic of the Philippines can neither be applied, since the validity of an act of a belligerent
occupant cannot be tested in the light of another act of the same occupant, whose criminal jurisdiction is
drawn entirely from the law martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held that, by
the military occupation of Castine, Maine, the sovereignty of the United States in the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully enforced there or be obligatory
upon the inhabitants who remained and submitted to the belligerent occupant. By the surrender the
inhabitants passed under a temporary allegiance to the British government, and were bound by such laws,
and such only, as it chose to recognize and impose. And Oppenheim, in his Treatise on International Law,
says that, in carrying out the administration over the occupied territory and its inhabitants, "the (belligerent)
occupant is totally independent of the constitution and the laws of the territory, since occupation is an aim
of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground
of his interest and must be promoted under all circumstances or conditions. (Vol. II, Sixth Edition, Revised,
1944, p. 342.)
The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of Texas vs.
White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home
Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the judicial and
legislative acts of the Confederate States which impaired the rights of the citizens under the Constitution of
the United States or of the States, or were in conflict with those constitutions, were null and void, is not
applicable to the present case. Because that doctrine rests on the propositions that "the concession (of
belligerency) made to the Confederate Government . . . sanctioned no hostile legislation . . . and it impaired
in no respect the rights of loyal and citizens as they existed at the commencement of hostilities" (Williams
vs. Bruffy, supra);that the Union is perpetual and indissoluble, and the obligation of allegiance to the to the
estate and obedience to her laws and the estate constitution, subject to the Constitution of the United States,
remained unimpaired during the War of Secession (Texas vs. White, supra) and that the Confederate States
"in most, if not in all instances, merely transferred the existing state organizations to the support of a new
and different national head. the same constitution, the same laws for the protection of the property and
personal rights remained and were administered by the same officers." (Sprott vs. United States, supra). In
fine, because in the case of the Confederate States, the constitution of each state and that of the United
States or the Union continued in force in those states during the War of Secession; while the Constitution of
the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese
forces of the belligerent occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of the law of nations are, first, the
validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the summary
procedure adopted for that court; secondly, the validity of the sentence which imprisonment during the
Japanese military occupation; and thirdly, if they were then valid, the effect on said punitive sentence of the
reoccupation of the Philippines and the restoration therein of the Commonwealth Government.
(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by
Ordinance No. 7, the only factor to be considered is the authority of the legislative power which promulgated
said law or ordinance. It is well established in International Law that "The criminal jurisdiction established by
the invader in the occupied territory finds its source neither in the laws of the conquering or conquered state,
— it is drawn entirely form the law martial as defined in the usages of nations. The authority thus derived
can be asserted either through special tribunals, whose authority and procedure is defined in the military
code of the conquering state, or through the ordinary courts and authorities of the occupied district." (Taylor,
International Public Law, p. 598.) The so-called Republic of the Philippines, being a governmental
instrumentality of the belligerent occupant, had therefore the power or was competent to create the Court
of Special and Exclusive Criminal Jurisdiction. No question may arise as to whether or not a court is of political
complexion, for it is mere a governmental agency charged with the duty of applying the law to cases falling
within its jurisdiction. Its judgments and sentences may be of political complexion, or not depending upon
the nature or character of the law so applied. There is no room for doubt, therefore, as to the validity of the
creation of the court in question.
With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the case
which resulted in the conviction of the herein petitioner, there is also no question as to the power or
competence of the belligerent occupant to promulgate the law providing for such procedure. For "the
invader deals freely with the relations of the inhabitants of the occupied territory towards himself . . . for his
security also, he declares certain acts, not forbidden by the ordinary laws of the country, to be punishable;
and he so far suspends the laws which guard personal liberty as is required for the summary punishment of
any one doing such acts." (Hall's International Law, seventh ed., p. 5000). A belligerent "occupant may where
necessary, set up military courts instead of the ordinary courts; and in case, and in so far as, he admits the
administration of justice by the ordinary courts, he may nevertheless, so far as is necessary for military
purposes, or for the maintenance of public order and safety temporarily alter the laws, especially the
Criminal Law, on the basis of which justice is administered as well as the laws regarding procedure."
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)
No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth
Constitution relating to the rights of accused under that Constitution, because the latter was not in force
during the period of the Japanese military occupation, as we have already stated. Nor may said Constitution
be applied upon its revival at the time of the re-occupation of the Philippines by virtue of the principle of
postliminium because "a constitution should operate prospectively only, unless the words employed show a
clear intention that it should have a retrospective effect" (Cooley's Constitutional Limitations, seventh
edition, page 97, and cases quoted and cited in the footnote), especially as regards laws of procedure applied
to cases already terminated completely.
The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or
promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far as it is
necessary for military purposes, that is, for his control of the territory and the safety and protection of his
army, are those imposed by the Hague Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience. It is obvious that the summary procedure under
consideration does not violate those precepts. It cannot be considered as violating the laws of humanity and
public conscience, for it is less objectionable, even from the point of view of those who are used to the
accusatory system of criminal procedure than the procedural laws based on the semi-inquisitorial or mixed
system prevailing in France and other countries in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction
which imposes life imprisonment upon the herein petitioner, depends upon the competence or power of the
belligerent occupant to promulgate Act No. 65 which punishes the crime of which said petitioner was
convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the laws to be
enforced by the occupant consist of, first, the territorial law in general, as that which stands to the public
18
order and social and commercial life of the district in a relation of mutual adaptation, so that any needless
displacement of it would defeat the object which the invader is enjoined to have in view, and secondly, such
variations of the territorial law as may be required by real necessity and are not expressly prohibited by any
of the rules which will come before us. Such variations will naturally be greatest in what concerns the relation
of the communities and individuals within the district to the invading army and its followers, it being
necessary for the protection of the latter, and for the unhindered prosecution of the war by them, that acts
committed to their detriment shall not only lose what justification the territorial law might give them as
committed against enemies, but shall be repressed more severely than the territorial law would repress acts
committed against fellow subjects. Indeed the entire relation between the invaders and the invaded, so far
as it may fall within the criminal department whether by the intrinsic nature of the acts done or in
consequence of the regulations made by the invaders, may be considered as taken out of the territorial law
and referred to what is called martial law." (Westlake, International Law, Part II, War, p. 96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to describe
any fact in relation to belligerent occupation, does not refer to a particular code or system of law, or to a
special agency entrusted with its administration. The term merely signifies that the body of law actually
applied, having the sanction of military authority, is essentially martial. All law, by whomsoever administered,
in an occupied district martial law; and it is none the less so when applied by civil courts in matters devoid of
special interest to the occupant. The words "martial law" are doubtless suggestive of the power of the
occupant to share the law as he sees fit; that is, to determine what shall be deemed lawful or unlawful acts,
to establish tests for ascertaining the guilt of offenders, to fix penalties, and generally to administer justice
through such agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such
new laws and regulations as military necessity demands, and in this class will be included those laws which
come into being as a result of military rule; that is, those which establish new crimes and offenses incident
to a state of war and are necessary for the control of the country and the protection of the army, for the
principal object of the occupant is to provide for the security of the invading army and to contribute to its
support and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)
From the above it appears clear that it was within the power and competence of the belligerent occupant to
promulgate, through the National Assembly of the so-called Republic of the Philippines, Act No. 65 of the
said Assembly, which penalizes the crimes of robbery and other offenses by imprisonment ranging from the
maximum period of the imprisonment prescribed by the laws and ordinances promulgated by the President
of the so-called Republic as minimum, to life imprisonment or death as maximum. Although these crimes are
defined in the Revised Penal Code, they were altered and penalized by said Act No. 65 with different and
heavier penalties, as new crimes and offenses demanded by military necessity, incident to a state of war,
and necessary for the control of the country by the belligerent occupant, the protection and safety of the
army of occupation, its support and efficiency, and the success of its operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. — The criminal acts penalized
by said Act No. 65 are those committed by persons charged or connected with the supervision and control
of the production, procurement and distribution of foods and other necessaries; and the penalties imposed
upon the violators are different from and much heavier than those provided by the Revised Penal Code for
the same ordinary crimes. The acts penalized by said Act were taken out of the territorial law or Revised
Penal Code, and referred to what is called martial law by international jurists, defined above by Hyde, in
order, not only to prevent food and other necessaries from reaching the "guerrillas" which were harassing
the belligerent occupant from every nook and corner of the country, but also to preserve the food supply
and other necessaries in order that, in case of necessity, the Imperial Japanese forces could easily requisition
them, as they did, and as they had the right to do in accordance with the law of nations for their maintenance
and subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the fact,
of which this court may take judicial notice, that the Imperial Japanese Army had depended mostly for their
supply upon the produce of this country.
The crimes penalized by Act No. 65 — as well as the crimes against national security and the law of nations,
to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile country, flight
to enemy's country, piracy; and the crimes against public order, such as rebellion, sedition and disloyalty,
illegal possession of firearms and other, penalized by Ordinance No. 7 and placed under jurisdiction of the
Court of Special and Exclusive Criminal Jurisdiction — are all of a political complexion, because the acts
constituting those offenses were punished, as are all political offenses, for public rather than private reasons,
and were acts in aid or favor of the enemy and against the welfare, safety and security of the belligerent
occupant. While it is true that these offenses, when committed against the Commonwealth or United States
Government, are defined and also penalized by the territorial law Revised Penal Code, they became
inapplicable as crimes against the occupier upon the occupation of the Islands by the Japanese forces. And
they had to be taken out of the territorial law and made punishable by said Ordinance No. 7, for they were
not penalized before under the Revised Penal Code when committed against the belligerent occupant or the
government established by him in these Island. They are also considered by some writers as war crimes in a
broad sense. In this connection Wheaton observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time
ordered to be done or forbidden to be done in the martial law proclamation or regulations of the invading
or occupying commander. Thus, in the Anglo-Boer war, the British military authorities proclaimed the
following to be offenses against their martial law; — Being in possession of arms, ammunition, etc.; traveling
without a permit; sending prohibited goods; holding meetings other than those allowed; using seditious
language; spreading alarmist reports; overcharging for goods; wearing uniforms without due authority; going
out of doors between certain hours; injuring military animals or stores; being in possession, without a permit,
of horses, vehicles, cycles, etc.; hindering those in execution of military orders; trespassing on defense works.
Such offenses, together with several others, were specified in the Japanese regulations made in the Russo-
Japanese war." (Wheaton's International Law, War, seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction
against the petitioner, imposing upon him the penalty of life imprisonment, was good and valid, since it was
within the admitted power or competence of the belligerent occupant to promulgate the law penalizing the
crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the
Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive sentence
which petitioner is now serving fell through or ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the matter.
It is sufficient to quote the opinion on the subject of several international jurists and our recent decision in
the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or
created by the belligerent occupant, opines "that judicial acts done under this control, when they are not of
a political complexion, administrative acts so done, to the extent that they take effect during the continuance
of his control, and the various acts done during the same time by private persons under the sanction of
municipal law, remain good. . . . Political acts on the other hand fall through as of course, whether they
introduce any positive change into the organization of the country, or whether they only suspend the
working of that already in existence. The execution also of punitive sentences ceases as of course when they
have had reference to acts not criminal by the municipal law of the state, such for example as acts directed
against the security or control of the invader." (Hall's International Law, seventh edition, p. 518.)
19

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in
question, which is within the admitted power or competence of the belligerent occupant to punish, says
that: "To the extent to which the legal power of the occupant is admitted he can make law for the duration
of his occupation. Like any other legislator he is morally subject to the duty of giving sufficient notice of his
enactments or regulations, not indeed so as to be debarred from carrying out his will without notice, when
required by military necessity and so far as practically carrying out his will can be distinguished from
punishment, but always remembering that to punish for breach of a regulation a person who was justifiably
ignorant of it would be outrageous. But the law made by the occupant within his admitted power, whether
morally justifiable or not, will bind any member of the occupied population as against any other member of
it, and will bind as between them all and their national government, so far as it produces an effect during the
occupation. When the occupation comes to an end the authority of the national government is restored,
either by the progress of operations during the war or by the conclusion of a peace, no redress can be had
for what has been actually carried out but nothing further can follow from the occupant's legislation. A
prisoner detained under it must be released, and no civil right conferred by it can be further enforced. The
enemy's law depends on him for enforcement as well as for enactment. The invaded state is not subject to
the indignity of being obliged to execute his commands. (Westlake, International Law, Part II, War, pp. 97,
98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in Ordinance
No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and under international
law should not be abrogated by the subsequent government. But this rule does not necessarily apply to acts
that exceed the occupant's power (e.g., alienation of the domains of the State or the sovereign), to sentences
for 'war treason' and 'war crimes,' to acts of a political character, and to those that beyond the period of
occupation. When occupation ceases, no reparation is legally due for what has already been carried out."
(Wheaton's International Law, supra, p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra,
that all judgments of political complexion of the courts during the Japanese regime, ceased to be valid upon
the reoccupation of the islands by virtue of the principle or right of postliminium. Applying that doctrine to
the present case, the sentence which convicted the petitioner of a crime of a political complexion must be
considered as having ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by
General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the proclamation
of General Douglas MacArthur declaring null and void all laws, among them Act No. 65, of the so-called
Republic of the Philippines under which petitioner was convicted, in order to give retroactive effect to the
nullification of said penal act and invalidate sentence rendered against petitioner under said law, a sentence
which, before the proclamation, had already become null and of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during the
military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso facto upon
the reoccupation of these Island and the restoration therein of the Commonwealth Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that the
petitioner be released forthwith, without pronouncement as to costs. So ordered.
20
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as
taxpayers petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, , respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of
the vast majority of countries has revolutionized international business and economic relations amongst
states. It has irreversibly propelled the world towards trade liberalization and economic globalization.
Liberalization, globalization, deregulation and privatization, the third-millennium buzz words, are ushering
in a new borderless world of business by sweeping away as mere historical relics the heretofore traditional
modes of promoting and protecting national economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the
best in specific industries in a market-driven and export-oriented global scenario are replacing age-old
"beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic producers of goods
and services. In the words of Peter Drucker, the well-known management guru, "Increased participation in
the world economy has become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United Nations
— were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other states. However,
for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT — the General Agreement on Tariffs and Trade. GATT was a
collection of treaties governing access to the economies of treaty adherents with no institutionalized body
administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave birth to that administering body — the World Trade
Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.1
Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access
to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products." The President also saw in the WTO the opening of "new
opportunities for the services sector . . . , (the reduction of) costs and uncertainty associated with exporting
. . . , and (the attraction of) more investments into the country." Although the Chief Executive did not
expressly mention it in his letter, the Philippines — and this is of special interest to the legal profession —
will benefit from the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade
disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis
of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-
countries on the same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or
impairs" the constitutional powers of both Congress and the Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a self-
reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally
produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global economy that
is liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and
(2) for the prohibition of its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of government properties and
resources by respondent-heads of various executive offices concerned therewith. This concurrence is
embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities, with a view to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the
President of the Philippines,3 stating among others that "the Uruguay Round Final Act is hereby submitted
to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of the
Philippines4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act,
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and
the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."
21

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify
P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade and confirm the same and every Article and Clause thereof.
Organization."5
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby Proper and "the associated legal instruments included in Annexes one (1), two (2) and three (3) of that
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines Agreement which are integral parts thereof."
of the Agreement Establishing the World Trade Organization."6 The text of the WTO Agreement is written
on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and
includes various agreements and associated legal instruments (identified in the said Agreement as Annexes its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the
1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows: Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,8 the
Solicitor General describes these two latter documents as follows:
ANNEX 1
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
Annex 1A: Multilateral Agreement on Trade in Goods matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO
General Agreement on Tariffs and Trade 1994 with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
Agreement on Agriculture settlement.
Agreement on the Application of Sanitary and
Phytosanitary Measures The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
Agreement on Textiles and Clothing limitations and qualifications of commitments to existing non-conforming measures, market access, national
Agreement on Technical Barriers to Trade treatment, and definitions of non-resident supplier of financial services, commercial presence and new
Agreement on Trade-Related Investment Measures financial service.
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment
1994 and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the petition,
Agreement on Implementation of Article VII of the and the parties thereafter filed their respective memoranda. The court also requested the Honorable Lilia R.
General on Tariffs and Trade 1994 Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a
Agreement on Pre-Shipment Inspection paper, hereafter referred to as "Bautista Paper,"9 for brevity, (1) providing a historical background of and (2)
Agreement on Rules of Origin summarizing the said agreements.
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating During the Oral Argument held on August 27, 1996, the Court directed:
Measures
Agreement on Safeguards (a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2)
the transcript of proceedings/hearings in the Senate; and
Annex 1B: General Agreement on Trade in Services and Annexes
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed
Annex 1C: Agreement on Trade-Related Aspects of Intellectual prior to the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and
Property Rights (2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.
ANNEX 2
After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution.
Understanding on Rules and Procedures Governing In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume
the Settlement of Disputes Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he
listed the various "bilateral or multilateral treaties or international instruments involving derogation of
ANNEX 3 Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance dated January 28, 1997,
on January 30, 1997.
Trade Policy Review Mechanism
The Issues
On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification, declaring:
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after
having seen and considered the aforementioned Agreement Establishing the World Trade Organization and A. Whether the petition presents a political question or is otherwise not justiciable.
the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that
22
B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the
World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit,
restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI,
1987 Philippine Constitution is "vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with
the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting
to lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-
infirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting
to lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing
the World Trade Organization, and not with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by
petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization
and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of
that agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of Section
19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise
of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the President of the
Philippines of the Agreement establishing the World Trade Organization" implied rejection of the treaty
embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted
in grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The
foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The "political question" issue — being very fundamental and vital, and being a matter that
probes into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the
Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue,
even if ruled in respondents' favor, will not cause the petition's dismissal as there are petitioners other than
the two senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be
taken up as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus standi
of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized
that grave constitutional issues, expenditures of public funds and serious international commitments of the
nation are involved here, and that transcendental public interest requires that the substantive issues be met
head on and decided on the merits, rather than skirted or deflected by procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC. 19,
ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR THE
EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER
BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL
DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." 12 Once a "controversy as to the
application or interpretation of a constitutional provision is raised before this Court (as in the instant case),
it becomes a legal issue which the Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987
Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.
23

The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of Article XII
discretion on the part of any branch or instrumentality of government including Congress. It is an innovation
in our political law. 16 As explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final NATIONAL ECONOMY AND PATRIMONY
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to xxx xxx xxx
excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature."
Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or enterprises whose capital is wholly owned by Filipinos.
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
department of the government. shall give preference to qualified Filipinos.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy xxx xxx xxx
in the ordinary course of law, we have no hesitation at all in holding that this petition should be given due
course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues and to review produced goods, and adopt measures that help make them competitive.
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have no
equivocation. Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions
quoted in their memorandum: 19
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom
of the decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
of trade liberalization as a policy espoused by said international body. Neither will it rule on the propriety of
the government's economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, Article 2
and other import/trade barriers. Rather, it will only exercise its constitutional duty "to determine whether
or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of National Treatment and Quantitative Restrictions.
the Senate in ratifying the WTO Agreement and its three annexes.
1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any
Second Issue: The WTO Agreement TRIM that is inconsistent with the provisions of Article II or Article XI of GATT 1994.
and Economic Nationalism
2. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
This is the lis mota, the main issue, raised by the petition. quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to
this Agreement." (Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic Instruments, p. 22121, emphasis supplied).
nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered in
various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and The Annex referred to reads as follows:
Declarations and in the Understanding on Commitments in Financial Services.
ANNEX
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as follows: Illustrative List

Article II 1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph
4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under
DECLARATION OF PRINCIPLES administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:
AND STATE POLICIES
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic
xxx xxx xxx source, whether specified in terms of particular products, in terms of volume or value of products, or in terms
of proportion of volume or value of its local production; or
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos. (b) that an enterprise's purchases or use of imported products be limited to an amount related to
the volume or value of local products that it exports.
xxx xxx xxx
24
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is necessary to
obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it
exports;
(b) the importation by an enterprise of products used in or related to its local production by
restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of volume
or value of products, or in terms of a preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125,
emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase,
transportation, distribution or use, the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product." (Article III, GATT 1947, as amended by the
Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than that it
accords to its own nationals with regard to the protection of intellectual property. . . (par. 1 Article 3,
Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p. 25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out
therein, each Member shall accord to services and service suppliers of any other Member, in respect of all
measures affecting the supply of services, treatment no less favourable than it accords to its own like services
and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service
suppliers of any other Member, either formally suppliers of any other Member, either formally identical
treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it
modifies the conditions of completion in favour of services or service suppliers of the Member compared to
like services or service suppliers of any other Member. (Article XVII, General Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and local
products," in contravention of the "Filipino First" policy of the Constitution. They allegedly render
meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to
ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided
in the annexed agreements. 20 Petitioners further argue that these provisions contravene constitutional
limitations on the role exports play in national development and negate the preferential treatment accorded
to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are
not self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but should be related to other relevant provisions of
Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with
Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries
like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart
of this article in the 1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente
Sinco. 22 These principles in Article II are not intended to be self-executing principles ready for enforcement
through the courts. 23 They are used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, 24 the principles and state policies enumerated in Article II and some sections of
Article XII are not "self-executing provisions, the disregard of which can give rise to a cause of action in the
courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative
enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV
of the 1987 Constitution, suffice it to state also that these are merely statements of principles and policies.
As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define
and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available
remedy was not judicial but political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional principles are
sourced from basic considerations of due process and the lack of judicial authority to wade "into the
uncharted ocean of social and economic policy making." Mr. Justice Florentino P. Feliciano in his concurring
opinion in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:
25
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that
is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so
that the trial court can validly render judgment grating all or part of the relief prayed for. To my mind, the
court should be understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One
is that unless the legal right claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and effectively; in other words,
there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is
not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power
in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Sec. 1. ...
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to
health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to exist, then the
policy making departments — the legislative and executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them before the
courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating
to the national economy and patrimony, should be read and understood in relation to the other sections in
said article, especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and
agrarian reform, through industries that make full and efficient use of human and natural resources, and
which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development,
as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit
of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions covering
the national economy and patrimony" 27 and in the use of "Filipino labor, domestic materials and locally-
produced goods"; (2) by mandating the State to "adopt measures that help make them competitive; 28 and
(3) by requiring the State to "develop a self-reliant and independent national economy effectively controlled
by Filipinos." 29 In similar language, the Constitution takes into account the realities of the outside world as
it requires the pursuit of "a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality ad reciprocity"; 30 and speaks of industries "which are
competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises against
unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., 31
this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or implementing laws or rule for its
enforcement. From its very words the provision does not require any legislation to put it in operation. It is
per se judicially enforceable." However, as the constitutional provision itself states, it is enforceable only in
regard to "the grants of rights, privileges and concessions covering national economy and patrimony" and
not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not
whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition
and trade practices that are unfair. 32 In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
26
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect
weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where
major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made
on the basis of sovereign equality, with each member's vote equal in weight to that of any other. There is no
WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision
will require assent of all members. Any member may withdraw from the Agreement upon the expiration of
six months from the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through the WTO than through
one-on-one negotiations with developed countries. Within the WTO, developing countries can form
powerful blocs to push their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles
underlying the WTO Agreement recognize the need of developing countries like the Philippines to "share in
the growth in international trade commensurate with the needs of their economic development." These
basic principles are found in the preamble 34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of real
income and effective demand, and expanding the production of and trade in goods and services, while
allowing for the optimal use of the world's resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the means for doing so
in a manner consistent with their respective needs and concerns at different levels of economic
development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries, and
especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the
elimination of discriminatory treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts,
and all of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral trading
system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles,
the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries
some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of tariff reduction and the period within
which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36%
for developed countries to be effected within a period of six (6) years while developing countries — including
the Philippines — are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices
including anti-dumping measures, countervailing measures and safeguards against import surges. Where
local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures.
There is hardly therefore any basis for the statement that under the WTO, local industries and enterprises
will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the
weaker situations of developing nations like the Philippines have been taken into account; thus, there would
be no basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they
have made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization.
But such decision cannot be set aside on the ground of grave abuse of discretion, simply because we disagree
with it or simply because we believe only in other economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the Senate committed
grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic
seclusion" nor "mendicancy in the international community." As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence
on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather,
it means avoiding mendicancy in the international community. Independence refers to the freedom from
undue foreign control of the national economy, especially in such strategic industries as in the development
of natural resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination"
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to
all WTO members. Aside from envisioning a trade policy based on "equality and reciprocity," 37 the
fundamental law encourages industries that are "competitive in both domestic and foreign markets,"
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of
27
the gradual development of robust industries that can compete with the best in the foreign markets. Indeed,
Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally.
And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated
the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino companies should be pampered with a total proscription
of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make available to the
Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the
public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its
promoters — expand the country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable
rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers thereto
are not subject to judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in
1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might
not have anticipated the advent of a borderless world of business. By the same token, the United Nations
was not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the
then Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign
relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same
time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist 38 explains:
The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and
frame-work only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in
a twinkling by mandate of our delegates, but slowly "in the crucible of Filipino minds and hearts," where it
will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention,
nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and
march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality
that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the
nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements." 39 Petitioners
maintain that this undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress
of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest and general welfare if such
legislation will not conform with the WTO Agreement, which not only relates to the trade in goods . . . but
also to the flow of investments and money . . . as well as to a whole slew of agreements on socio-cultural
matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged
in the Congress. 41 And while the Constitution allows Congress to authorize the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject
to "specified limits and . . . such limitations and restrictions" as Congress may provide, 42 as in fact it did
under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on
this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and
State Policies, the Constitution "adopts the generally accepted principles of international law as part of the
law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with
all nations." 43 By the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. 44 One of the oldest and
most fundamental rules in international law is pacta sunt servanda — international agreements must be
performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties . . . A state which has contracted valid international obligations is bound to make in
its legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. 46 The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put
by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here." 47
28
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article 2 of the
UN Charter, "(a)ll members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action." Such assistance includes payment of its corresponding
share not merely in administrative expenses but also in expenditures for the peace-keeping operations of
the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money
used by the United Nations Emergency Force in the Middle East and in the Congo were "expenses of the
United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to
appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges
and immunities, thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set forth as
underlying principles in the UN Charter, such provisos are however subject to enforcement measures
decided by the Security Council for the maintenance of international peace and security under Chapter VII
of the Charter. A final example: under Article 103, "(i)n the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under any other
international agreement, their obligation under the present charter shall prevail," thus unquestionably
denying the Philippines — as a member — the sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral
and multilateral — that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor
General in his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines by, among others, the Federal
Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and personal services performed by them as
employees or officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double
taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment,
spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils,
spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese and Korean air carriers under separate air service
agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable and its agents can not enter said premises without consent
of the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related
charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal disputes
concerning the interpretation of a treaty, any question of international law, the existence of any fact which,
if established, would constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers
of taxation, eminent domain and police power. The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations.
But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms
and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic
power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition,
smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple
fact that liberalization will provide access to a larger set of potential new trading relationship than in case of
the larger country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . . cooperation and
amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of the Supreme
Court to promulgate rules concerning pleading, practice and procedures. 50
29
To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as
follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner
referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process. Therefore, Members shall provide, in at
least one of the following circumstances, that any identical product when produced without the consent of
the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the
owner of the patent has been unable through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be
on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting
their manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence
of proof to the contrary") presumption that a product shown to be identical to one produced with the use
of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented process,
(1) where such product obtained by the patented product is new, or (2) where there is "substantial
likelihood" that the identical product was made with the use of the said patented process but the owner of
the patent could not determine the exact process used in obtaining such identical product. Hence, the
"burden of proof" contemplated by Article 34 should actually be understood as the duty of the alleged patent
infringer to overthrow such presumption. Such burden, properly understood, actually refers to the "burden
of evidence" (burden of going forward) placed on the producer of the identical (or fake) product to show
that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is "identical" to the genuine one produced by the
patented process and the fact of "newness" of the genuine product or the fact of "substantial likelihood"
that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the
subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented design or
utility model. Identity or substantial identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies
only if (1) the product obtained by the patented process in NEW or (2) there is a substantial likelihood that
the identical product was made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not obtain, members shall be
free to determine the appropriate method of implementing the provisions of TRIPS within their own internal
systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue — derogation of
legislative power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial
system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the other
documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services — is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is
in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate 53 which enumerated what constitutes the Final Act should have been the subject
of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending
the conference." 54 It is not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the "Final Act Embodying the Results
of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one page 55 in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as
representative of the Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its
signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the
30
members can meet "to give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the
Philippines. It applies only to those 27 Members which "have indicated in their respective schedules of
commitments on standstill, elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and refinancing available in the normal course of
business."57
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included
as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of trade relations
among its Members in matters to the agreements and associated legal instruments included in the Annexes
to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter
referred to as "Multilateral Agreements") are integral parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to
as "Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligation
or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred
to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended
or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown by the members'
deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the
senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Tañada that what was submitted
to the Senate was not the agreement on establishing the World Trade Organization by the final act of the
Uruguay Round which is not the same as the agreement establishing the World Trade Organization? And on
that basis, Senator Tolentino raised a point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that time was acceptable. That suggestion
was to treat the proceedings of the Committee as being in the nature of briefings for Senators until the
question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission
which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones that
raised this question yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the
Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World
Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding and
Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him Senator
Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the
draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the Final Act
itself . The Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement which
is now being submitted. The Final Act itself specifies what is going to be submitted to with the governments
of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement
for the consideration of the respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted now, I think it satisfies both the Constitution and
the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they
had been adequately reflected in the journal of yesterday's session and I don't see any need for repeating
the same.
Now, I would consider the new submission as an act ex abudante cautela.
31

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on
this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance
of question. Then the new submission is, I believe, stating the obvious and therefore I have no further
comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking
this Court's constitutionally imposed duty "to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion
may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have
no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must
be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. 62 Failure on the part of the petitioner to show grave
abuse of discretion will result in the dismissal of the petition. 63
beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected
policy makers and the people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should determine in electing their policy
makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire
of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65
where "the East will become the dominant region of the world economically, politically and culturally in the
next century." He refers to the "free market" espoused by WTO as the "catalyst" in this coming Asian
ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on national sovereignty,
the WTO remains as the only viable structure for multilateral trading and the veritable forum for the
development of international trade law. The alternative to WTO is isolation, stagnation, if not economic self-
destruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of
globalization with its on-line experience, and endowed with a vision of the future, the Philippines now
straddles the crossroads of an international strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional
body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senate's processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senate's exercise of its power of concurrence in the WTO Agreement
granted it by Sec. 21 of Article VII of the Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods. But it is equally true that such principles — while
serving as judicial and legislative guides — are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit
of a "trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity" and the promotion of industries "which are competitive in both domestic
and foreign markets," thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the adherence of the Constitution
to the policy of cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and
power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal hostility"
in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution
No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty.
Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise,
32
G.R. No. L-26379 December 27, 1969
WILLIAM C. REAGAN, ETC., petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete, Solicitor
Lolita O. Gal-lang and Special Attorney Gamaliel H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications, is raised by petitioner
William C. Reagan, at one time a civilian employee of an American corporation providing technical assistance
to the United States Air Force in the Philippines. He would dispute the payment of the income tax assessed
on him by respondent Commissioner of Internal Revenue on an amount realized by him on a sale of his
automobile to a member of the United States Marine Corps, the transaction having taken place at the Clark
Field Air Base at Pampanga. It is his contention, seriously and earnestly expressed, that in legal contemplation
the sale was made outside Philippine territory and therefore beyond our jurisdictional power to tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he would justify by
invoking, mistakenly as will hereafter be more fully shown an observation to that effect in a 1951 opinion, 1
petitioner ignoring that such utterance was made purely as a flourish of rhetoric and by way of emphasizing
the decision reached, that the trading firm as purchaser of army goods must respond for the sales taxes due
from an importer, as the American armed forces being exempt could not be taxed as such under the National
Internal Revenue Code.2 Such an assumption, inspired by the commendable aim to render unavailing any
attempt at tax evasion on the part of such vendee, found expression anew in a 1962 decision,3 coupled with
the reminder however, to render the truth unmistakable, that "the areas covered by the United States
Military Bases are not foreign territories both in the political and geographical sense."
As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is moreover obiter. It
certainly cannot control the resolution of the specific question that confronts us. We declare our stand in an
unequivocal manner. The sale having taken place on what indisputably is Philippine territory, petitioner's
liability for the income tax due as a result thereof was unavoidable. As the Court of Tax Appeals reached a
similar conclusion, we sustain its decision now before us on appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature of the case, started the
recital of facts thus: "It appears that petitioner, a citizen of the United States and an employee of Bendix
Radio, Division of Bendix Aviation Corporation, which provides technical assistance to the United States Air
Force, was assigned at Clark Air Base, Philippines, on or about July 7, 1959 ... . Nine (9) months thereafter
and before his tour of duty expired, petitioner imported on April 22, 1960 a tax-free 1960 Cadillac car with
accessories valued at $6,443.83, including freight, insurance and other charges."4 Then came the following:
"On July 11, 1960, more than two (2) months after the 1960 Cadillac car was imported into the Philippines,
petitioner requested the Base Commander, Clark Air Base, for a permit to sell the car, which was granted
provided that the sale was made to a member of the United States Armed Forces or a citizen of the United
States employed in the U.S. military bases in the Philippines. On the same date, July 11, 1960, petitioner sold
his car for $6,600.00 to a certain Willie Johnson, Jr. (Private first class), United States Marine Corps, Sangley
Point, Cavite, Philippines, as shown by a Bill of Sale . . . executed at Clark Air Base. On the same date, Pfc.
Willie (William) Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as evidenced by a deed of sale
executed in Manila."5
As a result of the transaction thus made, respondent Commissioner of Internal Revenue, after deducting the
landed cost of the car as well as the personal exemption to which petitioner was entitled, fixed as his net
taxable income arising from such transaction the amount of P17,912.34, rendering him liable for income tax
in the sum of P2,979.00. After paying the sum, he sought a refund from respondent claiming that he was
exempt, but pending action on his request for refund, he filed the case with the Court of Tax Appeals seeking
recovery of the sum of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution is whether or not the said
income tax of P2,979.00 was legally collected by respondent for petitioner."6 After discussing the legal issues
raised, primarily the contention that the Clark Air Base "in legal contemplation, is a base outside the
Philippines" the sale therefore having taken place on "foreign soil", the Court of Tax Appeals found nothing
objectionable in the assessment and thereafter the payment of P2,979.00 as income tax and denied the
refund on the same. Hence, this appeal predicated on a legal theory we cannot accept. Petitioner cannot
make out a case for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper perspective, petitioner
apparently feeling justified in his refusal to defer to basic postulates of constitutional and international law,
induced no doubt by the weight he would accord to the observation made by this Court in the two opinions
earlier referred to. To repeat, scant comfort, if at all is to be derived from such an obiter dictum, one which
is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and sovereign, its authority may be
exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its
decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies
must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily,
likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is
the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of
a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction."7 A
state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor does the matter end there.
It is not precluded from allowing another power to participate in the exercise of jurisdictional right over
certain portions of its territory. If it does so, it by no means follows that such areas become impressed with
an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction
may be diminished, but it does not disappear. So it is with the bases under lease to the American armed
forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of repute, speak to that effect with
impressive unanimity. We start with the citation from Chief Justice Marshall, announced in the leading case
of Schooner Exchange v. M'Faddon,8 an 1812 decision: "The jurisdiction of the nation within its own territory
is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction
upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent
of the restriction, and an investment of that sovereignty to the same extent in that power which could impose
such restriction." After which came this paragraph: "All exceptions, therefore, to the full and complete power
of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow
from no other legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of everyone within the
territorial domain of a state being subject to its commands: "For undoubtedly every person who is found
33
within the limits of a government, whether the temporary purposes or as a resident, is bound by its laws." It
is no exaggeration then for Justice Brewer to stress that the United States government "is one having
jurisdiction over every foot of soil within its territory, and acting directly upon each [individual found therein];
. . ."10
Not too long ago, there was a reiteration of such a view, this time from the pen of Justice Van Devanter.
Thus: "It now is settled in the United States and recognized elsewhere that the territory subject to its
jurisdiction includes the land areas under its dominion and control the ports, harbors, bays, and other in
closed arms of the sea along its coast, and a marginal belt of the sea extending from the coast line outward
a marine league, or 3 geographic miles."11 He could cite moreover, in addition to many American decisions,
such eminent treatise-writers as Kent, Moore, Hyde, Wilson, Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-volume work on International Law, as
interpreted and applied by the United States, made clear that not even the embassy premises of a foreign
power are to be considered outside the territorial domain of the host state. Thus: "The ground occupied by
an embassy is not in fact the territory of the foreign State to which the premises belong through possession
or ownership. The lawfulness or unlawfulness of acts there committed is determined by the territorial
sovereign. If an attache commits an offense within the precincts of an embassy, his immunity from
prosecution is not because he has not violated the local law, but rather for the reason that the individual is
exempt from prosecution. If a person not so exempt, or whose immunity is waived, similarly commits a crime
therein, the territorial sovereign, if it secures custody of the offender, may subject him to prosecution, even
though its criminal code normally does not contemplate the punishment of one who commits an offense
outside of the national domain. It is not believed, therefore, that an ambassador himself possesses the right
to exercise jurisdiction, contrary to the will of the State of his sojourn, even within his embassy with respect
to acts there committed. Nor is there apparent at the present time any tendency on the part of States to
acquiesce in his exercise of it."12
2. In the light of the above, the first and crucial error imputed to the Court of Tax Appeals to the
effect that it should have held that the Clark Air Force is foreign soil or territory for purposes of income tax
legislation is clearly without support in law. As thus correctly viewed, petitioner's hope for the reversal of
the decision completely fades away. There is nothing in the Military Bases Agreement that lends support to
such an assertion. It has not become foreign soil or territory. This country's jurisdictional rights therein,
certainly not excluding the power to tax, have been preserved. As to certain tax matters, an appropriate
exemption was provided for.
Petitioner could not have been unaware that to maintain the contrary would be to defy reality and would be
an affront to the law. While his first assigned error is thus worded, he would seek to impart plausibility to his
claim by the ostensible invocation of the exemption clause in the Agreement by virtue of which a "national
of the United States serving in or employed in the Philippines in connection with the construction,
maintenance, operation or defense of the bases and residing in the Philippines only by reason of such
employment" is not to be taxed on his income unless "derived from Philippine source or sources other than
the United States sources."13 The reliance, to repeat, is more apparent than real for as noted at the outset
of this opinion, petitioner places more faith not on the language of the provision on exemption but on a
sentiment given expression in a 1951 opinion of this Court, which would be made to yield such an
unwarranted interpretation at war with the controlling constitutional and international law principles. At any
rate, even if such a contention were more adequately pressed and insisted upon, it is on its face devoid of
merit as the source clearly was Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed a decision rendered
about seven months previously,15 holding liable as an importer, within the contemplation of the National
Internal Revenue Code provision, the trading firm that purchased army goods from a United States
government agency in the Philippines. It is easily understandable why. If it were not thus, tax evasion would
have been facilitated. The United States forces that brought in such equipment later disposed of as surplus,
when no longer needed for military purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively from the earlier
opinion. He could have stopped there. He chose not to do so. The transaction having occurred in 1946, not
so long after the liberation of the Philippines, he proceeded to discuss the role of the American military
contingent in the Philippines as a belligerent occupant. In the course of such a dissertion, drawing on his
well-known gift for rhetoric and cognizant that he was making an as if statement, he did say: "While in army
bases or installations within the Philippines those goods were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the liability for sales taxes as an
importer by the purchaser, could have been reached without any need for such expression as that given
utterance by Justice Tuason. Its value then as an authoritative doctrine cannot be as much as petitioner
would mistakenly attach to it. It was clearly obiter not being necessary for the resolution of the issue before
this Court.16 It was an opinion "uttered by the way."17 It could not then be controlling on the question
before us now, the liability of the petitioner for income tax which, as announced at the opening of this
opinion, is squarely raised for the first time.18
On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a maxim, not to be
disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which
those expressions are used. If they go beyond the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented for decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of Internal Revenue,20
a 1962 decision relied upon by petitioner, put a different complexion on the matter. Again, it was by way of
pure embellishment, there being no need to repeat it, to reach the conclusion that it was the purchaser of
army goods, this time from military bases, that must respond for the advance sales taxes as importer. Again,
the purpose that animated the reiteration of such a view was clearly to emphasize that through the
employment of such a fiction, tax evasion is precluded. What is more, how far divorced from the truth was
such statement was emphasized by Justice Barrera, who penned the Co Po opinion, thus: "It is true that the
areas covered by the United States Military Bases are not foreign territories both in the political and
geographical sense."21
Justice Tuason moreover made explicit that rather than corresponding with reality, what was said by him
was in the way of a legal fiction. Note his stress on "in contemplation of law." To lend further support to a
conclusion already announced, being at that a confirmation of what had been arrived at in the earlier case,
distinguished by its sound appreciation of the issue then before this Court and to preclude any tax evasion,
an observation certainly not to be taken literally was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It could be utilized again, as it
undoubtedly was, especially so for the purpose intended, namely to stigmatize as without support in law any
attempt on the part of a taxpayer to escape an obligation incumbent upon him. So it was quoted with that
end in view in the Co Po case. It certainly does not justify any effort to render futile the collection of a tax
legally due, as here. That was farthest from the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount the uses of a fictio
juris in the science of the law. It was Cardozo who pointed out its value as a device "to advance the ends of
justice" although at times it could be "clumsy" and even "offensive".22 Certainly, then, while far from
objectionable as thus enunciated, this observation of Justice Tuason could be misused or misconstrued in a
clumsy manner to reach an offensive result. To repeat, properly used, a legal fiction could be relied upon by
the law, as Frankfurter noted, in the pursuit of legitimate ends.23 Petitioner then would be well-advised to
take to heart such counsel of care and circumspection before invoking not a legal fiction that would avoid a
34

mockery of the law by avoiding tax evasion but what clearly is a misinterpretation thereof, leading to results
that would have shocked its originator.

The conclusion is thus irresistible that the crucial error assigned, the only one that calls for discussion to the
effect that for income tax purposes the Clark Air Force Base is outside Philippine territory, is utterly without
merit. So we have said earlier.

3. To impute then to the statement of Justice Tuason the meaning that petitioner would fasten on it is, to
paraphrase Frankfurter, to be guilty of succumbing to the vice of literalness. To so conclude is, whether by
design or inadvertence, to misread it. It certainly is not susceptible of the mischievous consequences now
sought to be fastened on it by petitioner.

That it would be fraught with such peril to the enforcement of our tax statutes on the military bases under
lease to the American armed forces could not have been within the contemplation of Justice Tuason. To so
attribute such a bizarre consequence is to be guilty of a grave disservice to the memory of a great jurist. For
his real and genuine sentiment on the matter in consonance with the imperative mandate of controlling
constitutional and international law concepts was categorically set forth by him, not as an obiter but as the
rationale of the decision, in People v. Acierto24 thus: "By the [Military Bases] Agreement, it should be noted,
the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The
consent was given purely as a matter of comity, courtesy, or expediency over the bases as part of the
Philippine territory or divested itself completely of jurisdiction over offenses committed therein."

Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in words that do not
admit of doubt. Thus: "This provision is not and can not on principle or authority be construed as a limitation
upon the rights of the Philippine Government. If anything, it is an emphatic recognition and reaffirmation of
Philippine sovereignty over the bases and of the truth that all jurisdictional rights granted to the United
States and not exercised by the latter are reserved by the Philippines for itself."25

It is in the same spirit that we approach the specific question confronting us in this litigation. We hold, as
announced at the outset, that petitioner was liable for the income tax arising from a sale of his automobile
in the Clark Field Air Base, which clearly is and cannot otherwise be other than, within our territorial
jurisdiction to tax.

4. With the mist thus lifted from the situation as it truly presents itself, there is nothing that stands in the
way of an affirmance of the Court of Tax Appeals decision. No useful purpose would be served by discussing
the other assigned errors, petitioner himself being fully aware that if the Clark Air Force Base is to be
considered, as it ought to be and as it is, Philippine soil or territory, his claim for exemption from the income
tax due was distinguished only by its futility.

There is further satisfaction in finding ourselves unable to indulge petitioner in his plea for reversal. We thus
manifest fealty to a pronouncement made time and time again that the law does not look with favor on tax
exemptions and that he who would seek to be thus privileged must justify it by words too plain to be
mistaken and too categorical to be misinterpreted.26 Petitioner had not done so. Petitioner cannot do so.

WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the refund of P2,979.00 as
the income tax paid by petitioner is affirmed. With costs against petitioner.
35
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY
and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General
of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now
charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines
with having unlawfully disregarded and failed "to discharge his duties as such command, permitting them to
commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking to establish
the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents
Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case before the
Military Commission and to permanently prohibit respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues —
"That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an
illegal order this commission is without jurisdiction to try herein petitioner."
Second. — That the participation in the prosecution of the case against petitioner before the Commission in
behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys
authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an
independent state and their appointment as prosecutor are a violation of our Constitution for the reason
that they are not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a
party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing
the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July,
1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its
section 3, that —
The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally accepted and policies of international
law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in chief
of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1
when we said —
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of
war is the adoption of measure by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to
create a military commission for the trial and punishment of war criminals is an aspect of waging war. And
in the language of a writer a military commission has jurisdiction so long as a technical state of war continues.
This includes the period of an armistice or military occupation up to the effective of a treaty of peace and
may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not
a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals
of international law. In facts these rules and principles were accepted by the two belligerent nation the
United State and Japan who were signatories to the two Convention, Such rule and principles therefore form
part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them
for our Constitution has been deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as continued inn treaties to which our government may
have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States and
with Japan to the right and obligation contained in the treaties between the belligerent countries. These
rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free
state entitles us to enforce the right on our own of trying and punishing those who committed crimes against
crimes against our people. In this connection it is well to remember what we have said in the case of Laurel
vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
36

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port
in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines
in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of
our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law and
not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order
No. 68 which provides for the organization of such military commission is a valid and constitutional law.
There is nothing in said executive order which requires that counsel appearing before said commission must
be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is
common in military tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only
fair and proper that United States, which has submitted the vindication of crimes against her government
and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes.
If there has been any relinquishment of sovereignty it has not been by our government but by the United
State Government which has yielded to us the trial and punishment of her enemies. The least that we could
do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people
have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.
37
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships
adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,
respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary
of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due process,
police power and equal protection of the laws. It also poses an important issue of fact, that is whether the
conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a
deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the
alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate
national aspirations for economic independence and national security, rooted in the drive and urge for
national survival and welfare, into a concrete and tangible measures designed to free the national retailer
from the competing dominance of the alien, so that the country and the nation may be free from a supposed
economic dependence and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail
trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the
Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned
by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from
the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed
to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until their
death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or
until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and
juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail
business) for violation of the laws on nationalization, control weights and measures and labor and other laws
relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens
actually engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper authorities
a verified statement concerning their businesses, giving, among other matters, the nature of the business,
their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing
the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks
the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the
laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of
the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section
8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in
the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the
interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or
international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the
value of the property is not impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of the police power, but petitioner claims that
its exercise in this instance is attended by a violation of the constitutional requirements of due process and
equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue
involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations
in the determination of the ever recurrent conflict between police power and the guarantees of due process
and equal protection of the laws. What is the scope of police power, and how are the due process and equal
protection clauses related to it? What is the province and power of the legislature, and what is the function
and duty of the courts? These consideration must be clearly and correctly understood that their application
to the facts of the case may be brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit
its sweep. As it derives its existence from the very existence of the State itself, it does not need to be
expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such
it is the most positive and active of all governmental processes, the most essential, insistent and illimitable.
Especially is it so under a modern democratic framework where the demands of society and of nations have
multiplied to almost unimaginable proportions; the field and scope of police power has become almost
boundless, just as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public
interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the
extent or scope of police power by which and through which the State seeks to attain or achieve interest or
welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what
they do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
38
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any
person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in democracies,
are not limited to citizens alone but are admittedly universal in their application, without regard to any
differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction
between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-
825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police
power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary
for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there
sufficient foundation or reason in connection with the matter involved; or has there not been a capricious
use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an
unjustified interference with private interest? These are the questions that we ask when the due process
test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist.
The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would
be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State
can deprive persons of life, liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and means. And if distinction and
classification has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the
police power, or of the measures adopted to implement the public policy or to achieve public interest. On
the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced
a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there
has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative.
Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the wisdom
of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the
disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls
within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade
or occupation, as old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume and consume all that they produce,
the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce, the
dealer comes into existence. As villages develop into big communities and specialization in production
begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which
man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are
placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human
body, thru which all the needed food and supplies are ministered to members of the communities comprising
the nation.
There cannot be any question about the importance of the retailer in the life of the community. He ministers
to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed
for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt,
the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to
sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a
small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-day
existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger centers of population (Time
there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns
and villages; now he predominates in the cities and big centers of population. He even pioneers, in far away
nooks where the beginnings of community life appear, ministering to the daily needs of the residents and
purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities
the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience
and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives.
The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of
population he has acquired not only predominance, but apparent control over distribution of almost all kinds
of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods
39

and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and
the Acefa, his control over principal foods and products would easily become full and complete. 32.98

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that 148,813,239
the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of
radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so 44.21
many unmanageable factors in the retail business make control virtually impossible. The first argument
which brings up an issue of fact merits serious consideration. The others are matters of opinion within the Others ............
exclusive competence of the legislature and beyond our prerogative to pass upon and decide.
1,646
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the 40,187,090
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment
of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever- 11.20
increasing dominance and control by the alien of the retail trade, as witness the following tables:
13,630,239
Assets
4.05
Gross Sales
1947:
Year and Retailers
Nationality Filipino ..........

No.-Establishments 111,107

Pesos 208,658,946

Per cent Distribution 65.05

Pesos 279,583,333

Per cent Distribution 57.03

1941: Chinese ...........

Filipino .......... 13,774

106,671 106,156,218

200,323,138 33.56

55.82 205,701,134

174,181,924 41.96

51.74 Others ...........

Chinese ........... 354

15,356 8,761,260

118,348,692 .49
40

4,927,168 60.89

1.01 462,532,901

1948: 53.47

(Census) Chinese ..........

Filipino .......... 16,248

113,631 125,223,336

213,342,264 35.72

67.30 392,414,875

467,161,667 45.36

60.51 Others ..........

Chinese .......... 486

12,087 12,056,365

93,155,459 3.39

29.38 10,078,364

294,894,227 1.17

38.20 1951:

Others .......... Filipino .........

422 119,352

10,514,675 224,053,620

3.32 61.09

9,995,402 466,058,052

1.29 53.07

1949: Chinese ..........

Filipino .......... 17,429

113,659 134,325,303

213,451,602 36.60
41

404,481,384 Filipino .............................................

46.06 1,878

Others .......... 2,516

347 Chinese ...........................................

8,614,025 7,707

2.31 14,934

7,645,327 Others ..............................................

87 24,749

13,919
AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT 1948:

Year and Retailer's (Census)

Nationality
Filipino .............................................
Item
Assets 1,878
(Pesos)
4,111
Gross Sales
(Pesos) Chinese .............................................

1941: 7,707

Filipino ............................................. 24,398

1,878 Others ..............................................

1,633 24,916

Chinese .............................................. 23,686

7,707 1949:

9,691 Filipino .............................................

Others ............................................... 1,878

24,415 4,069

8,281 Chinese ..............................................

1947: 7,707
42
24,152
Others ..............................................
24,807
20,737
1951:
Filipino .............................................
1,877
3,905
Chinese .............................................
7,707
33,207
Others ...............................................
24,824
22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark:
1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-
19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has
steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here,
do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains
much more. The same official report, pointing out to the known predominance of foreign elements in the
retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As
observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention. —
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the Convention that
the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines
College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our
Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic activities of the
country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions
of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the country is not
desirable and that if such a situation should remain, political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the
national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in
and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution)
envisages an organized movement for the protection of the nation not only against the possibilities of armed
invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political Law
by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954,
of the Second National Convention of Manufacturers and Producers. The man in the street also believes, and
fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality
proved by official statistics, and felt by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance
alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With
ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act
in such complete unison and concert on such vital matters as the fixing of prices, the determination of the
amount of goods or articles to be made available in the market, and even the choice of the goods or articles
they would or would not patronize or distribute, that fears of dislocation of the national economy and of the
complete subservience of national economy and of the consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated.
Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer
does not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their
stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or
its consumers, find the article suddenly out of the prescribed article, or its consumers, find the article
suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly
suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination.
Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice,
which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien participation in the retail trade has been attended
43
by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that
at some time or other they have cornered the market of essential commodities, like corn and rice, creating
artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government
has had to establish the National Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price control laws, especially on foods and
essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have secret
combinations among themselves to control prices, cheating the operation of the law of supply and demand;
that they have connived to boycott honest merchants and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have
evaded tax laws, smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of
graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made
both by the Government and by their own lawful diplomatic representatives, action which impliedly admits
a prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The
present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a
potential source of danger on occasions of war or other calamity. We do not have here in this country isolated
groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful
groups that dominate the distribution of goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of
crisis or emergency. While the national holds his life, his person and his property subject to the needs of his
country, the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the
product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly
in the interest of the public, nay of the national security itself, and indisputably falls within the scope of police
power, thru which and by which the State insures its existence and security and the supreme welfare of its
citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now poses solution is, Does the
law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and
cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by
the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he
is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would
prevent him from taking advantage of their weakness and exploiting them. The faster he makes his pile, the
earlier can the alien go back to his beloved country and his beloved kin and countrymen. The experience of
the country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to
national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits
he makes are not invested in industries that would help the country's economy and increase national wealth.
The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to
continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret
manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers
and of the ultimate happiness of the people of the nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of
real and actual, positive and fundamental differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These differences are certainly a valid reason
for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found between one and
the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and
real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some
may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative
of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all
persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable
and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and
it can not declare that the act transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not
curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope
of discretion, and a law can be violative of the constitutional limitation only when the classification is without
reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey
vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of
equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power
to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that
regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because
it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be conceived that would
sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who
assails the classification in such a law must carry the burden of showing that it does not rest upon any
reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for classification has already been
affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith
Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in
issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to
corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens,
it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of
Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
44
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise
of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the
limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does
not violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case of
Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms
part of an extensive system, the object of which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects
a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is
projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply
because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree
of protection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly
speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification
in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and
peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to
become a citizen of the United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for the welfare, good order and
happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from
engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a
deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently
acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular
business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274
U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of
Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear
in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to
the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking
was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of
police power. A similar statute denying aliens the right to engage in auctioneering was also sustained in
Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon,
1924), the court said that aliens are judicially known to have different interests, knowledge, attitude,
psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of
pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar
vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of
aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning
the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because the law
conflicts with Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the discrimination.
It further added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry.
However, two Justices dissented on the theory that fishing rights have been treated traditionally as natural
resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed
a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the tax was an arbitrary
deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the United States hold that the
distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws
declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product
of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu
Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine
law making unlawful the keeping of books of account in any language other than English, Spanish or any
other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business
there would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud,
because they would be deprived of their right to be advised of their business and to direct its conduct. The
real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying
on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to
withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no reason for the discrimination which
attended the administration and implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers
and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act
in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in daily
contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the
qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis
and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to
drive home the reality and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate
knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain
classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals
of governmental environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself. Further
enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute
confidence that the Legislature was without plausible reason for making the classification, and therefore
appropriate discriminations against aliens as it relates to the subject of legislation. . . . .
45
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive. —
We now come to due process as a limitation on the exercise of the police power. It has been stated by the
highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation
to the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of other constitutional restriction
a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare,
and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to
declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to
have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police
power in a constitutional sense, for the test used to determine the constitutionality of the means employed
by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill
of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it
affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur.
Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate
the operation of a business, is or is not constitutional, one of the first questions to be considered by the court
is whether the power as exercised has a sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the
health, safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago
recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest
occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where
the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest creditable
and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated,
that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and
practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold
on the nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts
and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable.
Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens
have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien
control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11
Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed
legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed
the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the
Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of
our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters
of our destiny. All aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens
of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons
who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life
and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the less
legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control
and domination of others, especially if not of their own race or country. The removal and eradication of the
shackles of foreign economic control and domination, is one of the noblest motives that a national legislature
may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the
constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be
beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination, thru
the exercise of the police power. The fathers of the Constitution must have given to the legislature full
authority and power to enact legislation that would promote the supreme happiness of the people, their
46
freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they adopted
a resolution expressing their belief that the legislation in question is within the scope of the legislative power.
Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but
it abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others
on this matter because it is convinced that the National Assembly is authorized to promulgate a law which
limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as corollary
the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural
resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of
authorization for the operation of the public utility shall be granted except to citizens of the Philippines." The
nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a
primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of
the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the
repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and
meet, through adequate measures, the danger and threat that alien domination of retail trade poses to
national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact
that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade.
Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion
is not subject to judicial review. It is well settled that the Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of
the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and
though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if
not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are
not unreasonable. These principles also answer various other arguments raised against the law, some of
which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of
employment; that prices will increase because of the elimination of competition; that there is no need for
the legislation; that adequate replacement is problematical; that there may be general breakdown; that
there would be repercussions from foreigners; etc. Many of these arguments are directed against the
supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business
and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in
the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators
or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes
and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale
of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be
stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject
of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306,
308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of
acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily
convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need
not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.)
The above rule was followed the title of the Act in question adopted the more general term "regulate"
instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of
the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling
within the scope of the title which would have made the Act invalid. The use of the term "regulate",
therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general
term should be adopted in the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment
into law of matters which have received the notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially
the nationalization and the prohibition provisions. The legislators took active interest in the discussion of the
law, and a great many of the persons affected by the prohibitions in the law conducted a campaign against
its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The
objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
47

Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter
of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General
Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights
and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the
Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of
achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter
aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most
nations of the world laws against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is
also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to
the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other countries, except those of the United
States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade.
But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification
or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail
or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien dominance and control of the retail business and free
citizens and country from dominance and control; that the enactment clearly falls within the scope of the
police power of the State, thru which and by which it protects its own personality and insures its security and
future; that the law does not violate the equal protection clause of the Constitution because sufficient
grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor
the due process of law clause, because the law is prospective in operation and recognizes the privilege of
aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and
efficacy of the law to carry out its objectives appear to us to be plainly evident — as a matter of fact it seems
not only appropriate but actually necessary — and that in any case such matter falls within the prerogative
of the Legislature, with whose power and discretion the Judicial department of the Government may not
interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity
and has not misled the legislators or the segment of the population affected; and that it cannot be said to be
void for supposed conflict with treaty obligations because no treaty has actually been entered into on the
subject and the police power may not be curtailed or surrendered by any treaty or any other conventional
agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made less
harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for
the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is
merely to determine if the law falls within the scope of legislative authority and does not transcend the
limitations of due process and equal protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

48
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the
boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an
alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of
the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on
October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a
short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery
of two brief speeches, a petition based on the resolution adopted on the last day by the International
Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so
that it may be delivered to the United States Ambassador. The march would be attended by the local and
foreign participants of such conference. There was likewise an assurance in the petition that in the exercise
of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on
October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action
taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of
respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned
out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was
sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly
militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more
specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal
elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is
expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of
the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any
other enclosed area where the safety of the participants themselves and the general public may be ensured."
8 not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v.
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then
deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and
present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the
US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute
resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed
exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law
shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be
Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship
or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent
liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt
proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and
discussion of matters Of public concern.17 It is entitled to be accorded the utmost deference and respect. It
is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935
Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking
for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence
that the right to freedom of speech and of the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation
placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the 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. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly
better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay
faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in
order to avert force and explosions due to restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its
significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant
to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the
utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this
right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if
contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed
of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression
of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing
from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What
is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally
or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is
Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people
to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect,
as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to
make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO:
25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use
of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of
49
the United States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the
general comfort and convenience, and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man
and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such
plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally
starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy,
hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the
matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting
at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision
in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire
P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall
'De permitted unless a special license therefor shall first be explained from the selectmen of the town or
from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon
the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme
Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of
the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration
of the time, place, and manner of the parade or procession, with a view to conserving the public convenience
and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to
issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience
of the people in the use of public highways has never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order upon which they ultimately depend. The control
of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though, there
would be a short program upon reaching the public space between the two gates of the United States
Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the
resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the
Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine
Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965,
and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that
date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving
State is under a special duty to take appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
" 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the
land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles
of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear
and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment
of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would
be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting
the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its
invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional
rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the
confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole,
a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this
Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally
scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a
substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the
constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution
and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of
those in attendance at the International Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to
the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public
places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who
is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access
becomes discriminatory access, giving rise to an equal protection question. The principle under American
doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free
speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend
the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties should be held accountable. It is true that the licensing official,
here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted.
It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of
what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption — especially so where the assembly is scheduled for a specific public — place is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some
other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and
Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule
is that a permit should recognize the right of the applicants to hold their assembly at a public place of their
choice, another place may be designated by the licensing authority if it be shown that there is a clear and
present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the clear and present danger test was satisfied. The present
situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives
may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was
in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise
That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also
from him came the commendable admission that there were the least five previous demonstrations at the
Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event
occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United
States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all
50

the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor
General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is
a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any
contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely,
it is the duty of the city authorities to provide the proper police protection to those exercising their right to
peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its legal possession is required. Such application should
be filed well ahead in time to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition
to such refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper
judicial authority. Free 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 felicitiously 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. Clearly then, to the extent that there may be inconsistencies
between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear
in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In
the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing,
however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could
be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the
way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a
case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly
presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on
that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and
Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and
peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of
the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this
case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the
exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983.
It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by
any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that
both on the part of the national government and the citizens, reason and moderation have prevailed. That
is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

51

G.R. No. L-45892 July 13, 1938 because the right of the Government to require compulsory military service is a consequence of its duty to
defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. In the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating
vs. the Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary
TRANQUILINO LAGMAN, defendant-appellant. interests, and even against his religious or political convictions, to take his place in the ranks of the army of
his country, and risk the chance of being shot down in its defense. In the case of United States vs. Olson (253
----------------------------- Fed., 233), it was also said that this is not deprivation of property without due process of law, because, in its
just sense, there is no right of property to an office or employment.
G.R. No. L-45893 July 13, 1938
The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service
vs. is the defense of the State, whether actual or whether in preparation to make it more effective, in case of
PRIMITIVO DE SOSA, defendant-appellant. need. The circumstance that the appellants have dependent families to support does not excuse them from
their duty to present themselves before the Acceptance Board because, if such circumstance exists, they can
Severino P. Izon for appellants. ask for determent in complying with their duty and, at all events, they can obtain the proper pecuniary
Office of the Solicitor-General Tuason for appellee. allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).

AVANCEÑA, J.: The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So ordered.

In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are
charged with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is
alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936,
willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said
year, notwithstanding the fact that they had been required to do so. The evidence shows that these two
appellants were duly notified by the corresponding authorities to appear before the Acceptance Board in
order to register for military service in accordance with law, and that the said appellants, in spite of these
notices, had not registered up to the date of the filing of the information.

The appellants do not deny these facts, but they allege in defense that they have not registered in the military
service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to support,
and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish to kill or
be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced, is
impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the Philippines
provides as follows:

SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens
may be required by law to render personal military or civil service.

The National Defense Law, in so far as it establishes compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government
to defend the State cannot be performed except through an army. To leave the organization of an army to
the will of the citizens would be to make this duty of the Government excusable should there be no sufficient
men who volunteer to enlist therein.1ªvvphïl.nët

In the United States the courts have held in a series of decisions that the compulsory military service adopted
by reason of the civil war and the world war does not violate the Constitution, because the power to establish
it is derived from that granted to Congress to declare war and to organize and maintain an army. This is so
52
G.R. No. L-13954 August 12, 1959
GENARO GERONA, ET AL., petitioners-appellants,
vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.
K.V. Felon and Hayed C. Cavington for appellant.
Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.
MONTEMAYOR, J.:
Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their complaint.
Acting upon the "Urgent Motion for Writ of Preliminary Injunction" filed on behalf of petitioners of December
12, 1958, and without objection on the part of the Solicitor General, by resolution of this Court of December
16, we issued the corresponding writ of preliminary injunction restraining respondents from excluding or
banning petitioners-appellants, their children and all other of Jehovah's Witnesses for whom this action has
been brought, from admission to public schools, particularly the Buenavista Community School, solely on
account of their refusal to salute the flag or preventing their return to school should they have already been
banned, until further orders from this Court.
The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and went into
effect. Acting upon section 2 of said Act authorizing and directing the Secretary of Education to issue or cause
to be issued rules and regulations for the proper conduct of the flag ceremony, said Secretary issued
Department Order No. 8, series of 1955 on July 21, 1955 which Department Order quoting Republic Act No.
1265 in its entirety, we reproduce below for purpose of reference:
"Republic of the Philippines
Department of Education
Office of the Secretary
Manila
Department Order
No. 8, s. 1955
July 21, 1955
COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS
To the Director of Public Schools and the Director of Private Schools:
1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony Compulsory in all
Educational Institutions," which is self-explanatory.
SECTION 1. All educational institutions henceforth observe daily flag ceremony, which shall be simple and
dignified and shall include the playing or singing of the Philippine National Anthem.
SECTION 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.
SECTION 3. Failure of 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.
SECTION 4. This Act shall take effect upon its approval.
Approved, June 11, 1955.
2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct of the required
flag ceremony, given in the in closure to this Order, are hereby promulgated. These rules and regulations
should be made known to all teachers and school officials, public and private. The patriotic objective or
significance of the Act should be explained to all pupils and students in the schools and to all communities
through the purok organizations and community assemblies.
(Sgd.) G. HERNANDEZ, JR.
Secretary of Education
Incl.:
As stated
(Inclosure of Department order No. 8, s. 1955)
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 lowered at sunset. The flag staff 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 that hat over the heart. Those
without hats may stand with their arms and hands downed 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 of following patriotic
pledge (English or vernacular version 0, which may bring the ceremony to a close. This is required of all public
53
schools and of private schools which are intended for Filipino students or whose population is predominantly
Filipino.
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.
3. The retreat shall be observed as follows:
a. Teachers and pupils or faculty members and students whose classes and after the last school period in the
afternoon before sun down shall assemble facing the flag. At command, the Philippine National Anthem shall
be sung with accompaniment of the school band. If the school has no band, the assembly will only sing the
Anthem. Boys who have been taking part in preparatory military training or Boy Scout activities shall attend
the retreat in formation and execute the salute prescribed for them. Others shall execute the same salute
and observe the same deportment as required of them in the flag-raising ceremony. The flag should be
lowered slowly so that it will be in the hands of the color detail at the sound of the last note of the Anthem.
b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the singing of the
National Anthem, for the retreat. At the sound of the first note, the assembly shall stand at attention facing
the flag and observe the same deportment as required in the flag-raising ceremony. Or, it may have its bugle
corp play "To the Colors" and at the sound of the first note everybody within hearing distance shall stand at
attention, face the flag, and observe the same deportment as required in the flag-raising ceremony.
4. The flag should be handled reverently in raising or lowering it and not allowed to touch the ground. This
can be insured by having one pupil hold the flag while another pupil fastening it to or unfasten it from the
halyard.
5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast, allowing it to fly
there for a moment, and then brought down to half-mast. To lower the flag, it must again be hoisted to full-
mast before bringing it down."
In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955 addressed to
Division Superintendents of Schools, enclosing a copy of Department Order No. 8, series of 1955 and
enjoining strict compliance therewith.
It would appear that pursuant to the Department Order in question, the flag ceremony contemplated therein
was held daily in every school, public and private. Petitioners' children attending the Buenavista Community
School, Uson, Masbate, refused to salute the flag, sing the national anthem and recite the patriotic pledge
contrary to the requirement of Department Order No. 8; as a result they were expelled from school sometime
in September, 1955. It is said that other children similarly situated who refused or failed to comply with the
requirement about saluting the flag are under threats of being also expelled from all public schools in the
Philippines.
Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of this
flag ceremony, they and their children attending school be allowed to remain silent and stand at attention
with their arms and hands down and straight at the sides and that they be exempted from executing the
formal salute, singing of the National Anthem and the reciting of the patriotic pledge, giving their reason for
the same. On December 16, 1955 the Secretary of Education wrote to counsel for petitioner denying the
petition, making it clear that the denial was the final and absolute stand of the Department of Education on
the matter and that counsel may thereafter feel free to seek a judicial determination of the constitutionality
or interpretation of Republic Act No. 1265 as construed and applied to Jehovah's Witnesses. The letter also
informed petitioners' counsel that with reference to his letter of December 1, 1955 relative to the request
for reinstatement of petitioners' children who had been expelled from school for non-compliance with
Department Order No. 8, no favorable action could be taken thereon. So, on March 27, 1957 petitioners
commenced the present action asking that a writ of preliminary injunction issue to restrain the Secretary of
Education and the Director of Public Schools from enforcing Department Order No. 8 "as applied to
petitioners and all others of Jehovah's Witnesses for whom this action is brought and to restrain them from
excluding from the public schools the children of the petitioners on account of their refusal to execute a
formal salute to the flag, sing the national anthem and recite the patriotic pledge, and that after hearing, the
trial court declare Department Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary
injunction prayed for be made permanent.
Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body teaching
that the obligation imposed by law of God is superior to that of laws enacted by the State. Their religious
beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which say: "Thou shalt not make unto
thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath,
or that is in the water under the earth; thou shalt not bow down thyself to them, nor serve them." They
consider that the flag is an "image within this command. For this reason they refuse to salute it.
To further make clear the stand of petitioners as to the relative position and priority of religious teaching on
the one hand and laws promulgated by the State on the other, we quote from appellant's brief on page 50
thereof:
In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United States Supreme Court
held that the flag `is an emblem of National sovereignty,
To many persons the saluting of a national flag means nothing. To a sincere person who believed in God and
the Bible as his Word, and who is in a covenant with Almighty God to do his will exclusively, it means much.
To such person "sovereignty" means the supreme authority or power. Many believe that "the higher
powers," mentioned in the Bible at Romans 13:1, means the "sovereign state"; but to the Christian this
means Jehovah God and his son, Christ Jesus, Jehovah's anointed King. They, Father and Son are the higher
powers, to whom all must be subject and joyfully obey. (Emphasis supplied)
The question involved in this appeal is a highly important one. We are called upon to determine the right of
a citizen as guaranteed by the Constitution about freedom of religious belief and the right to practice it as
against the power and authority of the State to limit or restrain the same. Our task is lessened by the fact
that petitioners do not challenge the legality or constitutionality of Republic Act 1265. All that they question
is the legality or constitutionality of Department Order No. 8, series of 1955 of the Department of Education
implementing said Republic Act.
The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though. So is
the freedom of belief, including religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the
exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes
54
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.
One may believe in polygamy because it is permitted by his religious, but the moment he translates said
religious belief into an overt act, such as engaging or practising plural marriages, he may be prosecuted for
bigamy and he may not plead or involve his religious belief as a defense or as matter of exemption from the
operation of the law.
In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law prohibiting
and punishing polygamy even as against the claim of religious belief of the Mormons. Said the Court:
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 circumstance. (emphasis supplied)
Again, one may not believe in the payment of taxes because he may claim that according to his religious
belief, the payment of taxes means service to one other than God. As long as he confines himself to mere
belief, well and good. But when he puts said belief into practice and he actually refuses to pay taxes on his
property or on his business, then the States steps in, compels payment, and enforces it either by court action
or levy and distraint.
One of the important questions to determine here is the true meaning and significance of the Filipino flag.
Petitioners believe and maintain that it is an image and therefore to salute the same is to go against their
religious belief. "Thou shalt not make unto thee any graven . . . thou shalt not bow down thyself to them or
serve them." They also claim that the flag salute is a religious ceremony, participation in which is forbidden
by their religious belief. We disagree. Appellants themselves (page 51 of their brief) concede that the flag is
a symbol of the State. They give the meaning of the word "image" on page 51 of their brief as follows:
Under the word "image" this comment is given by Webster: "Image, in modern usage, commonly suggests
religious veneration." (Emphasis supplied)
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. Considering the complete separation of church and state in our system of governments, the flag is
utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious
ceremony. The flag salute, particularly the recital of the pledge of loyalty 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 said oath,
taken while his right hand is raised, he swears allegiance to the Republic of the Philippines, promise to defend
the Constitution and even invokes the help of God; and it is to be doubted whether a member of Jehovah's
Witness who is a candidate for admission to the Philippine Bar would object to taking the oath on the ground
that is religious ceremony.
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the
courts. It cannot be left to a a religious group or sect, much less to a follower of said group or sect; otherwise,
there would be confusion and misunderstanding for there might be as many interpretations and meaning to
be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending
upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or
ceremony.
We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at attention
with their arms and hands down straight at the sides, and they agree that boys, members of Jehovah's
Witness who have been taking part in military training or Boy Scout activities, and are in uniform, may
execute the salute to the flag prescribed by the Circular for them. So, the requirement contained in
Department Order No. 8 that during the flag ceremony those without hats may stand with their arms and
hands down and straight at the sides, including the formal salute by boys in military and boy Scout uniform,
meets with the conformity of petitioners. Of course, there is the other requirement that boys and men with
hats shall salute the flag by placing their hats over the heart, but petitioners and other members of the
Jehovah's Witness could well solve this requirements or avoid it by putting away their hats just as pupils
books, may put them away, at command (Rules and Regulations, Sec. 2, par. [a]). Consequently, the
opposition of petitioners to the flag salute may be reduced to their objection to singing the National Anthem
and reciting the patriotic pledge.
After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning of this
decision, frankly we find nothing, absolutely nothing, objectionable, even from the point of view of religious
belief. The school child or student is simply made to say that he loves the Philippines because it is the land
of his birth and the home of his people; that because it protects him, in return he will heed the counsel of
his parents, obey the rules and regulations of his school, perform the duties of a patriotic and law-abiding
citizen; and serve his country unselfishly and faithly, and that he would be a true Filipino in thought, in word,
and in deed. He is not even made to pledge allegiance to the flag or to the Republic for which it stands. So
that even if we assume for a moment that the flag were an image, connoting religious and veneration instead
of a mere symbol of the State and of national unity, the religious scruples of appellants against bowing to
and venerating an image are not interfered with or otherwise jeopardized.
And as to the singing of the National Anthem, which we reproduce below:
Land of the morning,
Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.
the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of
suffering and dying for it. It does not even speak of resorting to force and engaging in military service or duty
to defend the country, which service might meet with objection on the part of conscientious objectors.
55
Surely, petitioners do not disclaim or disavow these noble and sacred feelings of patriotism, respect, even
veneration for the flag and love of coutnry for which the flag stands.
Men may differ and do differ on religous beliefs and creeds, government policies, the wisdom and legality of
laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for
the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they
are mutually and viatlly interested, for to them, they mean national existence and survival as a nation or
national extinction.
In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their
failure or refusal to obey school regulations about the flag salute they were not being persecuted. Neither
were they being criminally prosecuted under threat of penal sacntion. If they chose 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 regulations about the flag salute, they forfeited their right to attend public schools.
In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the present
case, appellants therein were taxpayers and citizens of the United States and of California. The University of
California received endowment and support from the State legislature under certain conditions such as that
any resident of California of the age of 14 years or upward of approved moral character shall have the right
to enter the University as a student and receive instructions therein. The University as part of its cirriculum
and instruction required military science and tactics in the Reserve Officers Training Corps. Appellants
conformed to all requirements of the University except taking the course in military science and tactics and
for this the regents of the University suspended them. Appellants were members of the Methodist Espiscopal
Church and of the Epworth League. For many years their fathers have been ordained ministers of that church.
They believed that war and preparation for war is a violation of their religious belief. In other words, they
were conscientious objectors to war. They believed that war, training for war, and military training were
immoral, wrong and contrary to the letter and spirit of the teaching of God and precepts of the Christian
religion. They petitioned for exemption from the military science and tactics course but the regents refused
to make military training optional or to exempt them and they were suspended. So they initiated court action
with a California Supreme Court to compel the regents of the University to admit them. In that action they
assailed the validity of the State law providing for military training in the University. The petition was denied
by the State Supreme Court. In affirming the decision of the State Supreme Court, the Supreme Court of the
United States held that:
. . . California has not drafted or called them to attend the University. They are seeking education offered by
the State and at the same time insisting that they be excluded from the prescribed course solely upon
grounds of their religious beliefs and consicientious objections to war, preparation for war and military
education. Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no more
than an assertion that the due process clause of the Fourtheenth Amendment as a safeguard of liberty'
confers the right to be students in the state university free from obligation to take military training as one of
the conditions of attendance.
Viewed in the light of our decisions that proposition must at once be put aside as untenable . . .
In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later naturalization case, the
applicant was unwilling, because of conscientious objections, to take unqualifiedly the statutory oath of
allegiance which contains this statement: "That he will support and defend the constitution and laws of the
United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same."
U.S.C. title 8, Sec. 381. His petition stated that he was willing if necessary to take up arms in defense of this
country, "but I should want to be free to judge of the necessity." In amplification he said: "I do not undertake
to support "my country, right or wrong" in any dispute which may arise, and I am not willing to poromise
beforehand, and without knowing the cause for which my country may go to war, either that I will or that I
will not "take up arms in defense of this country," however "necessary" the war may seem to be to the
government of the day." The opinion of this court quotes from petitioner's brief a statement to the effect
that it is a fixed principle of our Constitution, zealously guarded by our laws, that a citizen cannot be forced
and need not bear arms in a war if he has conscientious religious scruples against doing so." And, referring
to that part of the argument in behalf of the applicant this court said (p. 623): "This, if it means what it seems
to say, is an astonishing statement. Of course, there is no such principle of the Constitution, fixed or
otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no
constitutional provision, express or implied; but because, and only because, it has accorded with the policy
of Congress thus to relieve him . . . The previlege of the native-born conscientious objector to avoid bearing
arms comes not from the Constitution but from the acts of Congress. That body may grant or withhold the
exemption as in its wisdom it sees fit; and if it be withheld, the native-born conscientious objector cannot
successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the
war power as above illustrated, which include by necessary implication, the power, inthe last extremity, to
compel armed serviced of any citizen in the land, without regard to his objections or his views in respect of
the justice or morality of the particular war or of war in general. In Jacobson v. Massachusetts, 197 U.S. 11,
29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann. Cas, 765, this Court (upholding a state compulsory vaccination
law) speaking of the liberties guaranteed to the individual by the Fourteenth Amendment, said: "... and yet
he may be compelled, by force if need be, against his will and without regard to his personal wishes or his
pecuniary intersts, or even his religious or political convictions, to take his place in the ranks of the army of
his country and risk the chance of being shot down in its defense.
And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now before us,
decided against the contention of a student in the University of Maryland who on conscientious grounds
objected to military training there required. His appeal to this Court was dismissed for the want of a
substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54 S. Ct. 131.
Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students
under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in military
science and tactics, transgresses any constitutional right asserted by these appellants.
Mr. Justice Cardozo in his concurring opinion said:
I assume for present purposes that religious liberty protected by the First Amendment against invasion by
the nation is protected by the Fourteenth Amendment against invasion by the states.
Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the free
exercise" of religion as the phrase was understood by the foundrs of hte nation, and by the generations that
have followed. Davis vs. Beasin, 133 U.S. 333, 342, 33 L. ed. 637, 10 s.Ct. 299.
There is no occasion at this time to mark the limits of governmental power in the exaction of military service
when the nation is at peace. The petitioners have not been required to bear arms for any hostile purpose,
offensive or defensive, either now or in the future. They have not even been required in any absolute or
peremptory way to join courses of instruction that will fit them to bear arms. If they elect to resort to an
institution for higher education maintained with the state's moneys, then they are comanded to follow
courses of instruction believed by the state to be vital to its welfare. This may be condemned by some unwise
or illiberal or unfair when there is violence to conscientious scruples, either religious or merely ethical. More
must be shown to set the ordinance at naught. In controversies of this order courts do not concern
themselves with matters of legislative policy, unrelated to privileges or liberties secured by the organic law.
The first Amendment, if it be read into the Fourteenth, makes invalid any state law `respecting an
establishment of religion or prohibiting the free exercise thereof.' Instruction in military science is not
instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a
56
state religion when it insists upon such training. Instruction in military science, unaccompanied here by any
pledge of military service, is not an interference by the state with the free exercise of religion when the
liberties of the constitution are read in the light of a century and a half of history during days of peace and
war . . .
Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The
conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in
furtherance of a war, whether for attack or for defense, or in furtherance of any other end, condemned by
his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above
the powers and the compulsion of the agencies of government. One who is a martyr to a principle—which
may turn out in the end to be a delusion or an error—does not prove by his martyrdom that he has kept
within the law."
We are not unmindful of the decision of the United States Federal Supreme Court on similar set of facts. In
the case of Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah Witnesses
children were expelled from the public school of Minersville for refusing to salute the national flag in
accordance with the regulations poromulgated by the school board for the daily flag ceremony. Their father
Gobitsi on behalf of his two children and in his own behalf brought suit to enjoin the school authorities from
continuing to exact the execution of the flag ceremony as a condition of his children's admittance in school.
After trial, the District Court gave him relief and this decree was affirmed by the Circuit Court of Appeals. On
appeal to the Federal Supreme Court, the decrees of both the District Court and the Circuit Court of Appeals
were reversed with the lone dissent of Chief Justice Stone, on the ground that the requirement of
participation of all pupils in the public schools in the flag ceremony did not infringe the due process law and
liberty guaranteed by the Constitution, particularly the one referring to religious freedom and belief. Three
years later, that is, on June 14, 1943, the ruling laid down in the Minersville School District vs. Gobitis case,
was in the case of West Virginia State Board of Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply
divided court, the majority opinion being penned by Mr. Justice Jackson in which Justice Black, Douglas and
Murphy concurred; while Mr. Justice Frankfurter who wrote the opinion in the Gobitis case, filed a long
dissenting opinion, and Justices Roberts and Reed adhered to the views expressed in the Gobitis case.
Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to criticize
the doctrine of the West Virginia vs. Barnette case, frankly, we are more inclined to favor the former as more
in keeping with the spirit of our Constitution and the government policy as laid down in Republic Act No.
1265 entitles "An Act Making Flag Ceremony Compulsory In All Educational Institutions".
We cannot help thinking that one reason that may have possibly influenced the decision in the West Virginia
State Board of Education vs. Barnette case, was that the children involved in said case and their parents
found themselves in a serious dilemma for refusing to salute the flag as required by the regulations of the
School Board. They were expelled by the School Board and their absence was considered unlawful and
because of the law of compulsory school atendance of all children of school age, they were considered as
truants and the school officials threatened to send them to reformatories maintained for criminially inclinded
juveniles. Parents of such children have been prosecuted or were threatened with prosecution for cause such
as alleged delinquency and if convicted, were subject to fine not exceeding $50.00 and a jail term not
exceeding 30 days. That is why in the majority opinion it was stated:
. . . The sole conflict is between authority and rights of the individual. The state asserts power to conditions
access to public education on making a prescribed sign and profession and at the same time to coerce
attendance by punishing both parent and child . . .
Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have a law
(Republic Act 896) requiring compulsory enrollment of children of shcool age, but said law contains so many
exceptions and exemptions that it can be said that a child of school age is very seldom compelled to attend
school, let alone the fact that almost invariably, there is school crisis every year wherein the pupils applying
for admission in public schools could not be accommodated, and what is equally important is that there is
no punishment or penal sanction either for the pupil who fail to attend school or is expelled for failure to
comply with school regulations such as the compulsory flag salute ceremony, or his parents.
In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the decision
in the case of West Virginia, the Supreme Court of the United States affirmed a decision of the Illinois
Supreme Court refusing admission of petitioner Clyde Wilson Summers to the Illinois Bar. Summers had
complied with tall the prerequisites to admission to the Bar of that state, but he was a conscientious objector
who did not believe in the use of force or war because of his religious belief. He described this attitude of his
as follows:
The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament too
seriously. Instead of merely reading or preaching the Sermon on the Mount, he tries to practice it. The only
fault of the petitioner consists in his attempt to act as a good Christian in accordance with his interpreation
of the Bible, and according to the dictates of his conscience. We respectfully submit that the profession of
law does nt shut its gates to persons who have qualified in all other respects even when they follow in the
footsteps of that Great Teacher of mankind who delivered the Sermon on the Mount. We respectfully submit
that under our Constitutional guarantees even good Christians who have met all the requirements for the
admission to the bar may be admitted to practice law
The Constitution of Illinois required service in the militia in time of war of men of petitioner's age group. The
Federal Supreme Court defined the position of Summers as a conscientious objector in the following words:
. . . without detailing petitioner's testimony before the Committee or his subsequent statments in the record,
his position may be compendiously stated as one of non-violence. Petitioner will not serve in the armed
forces. While he recognizes a difference between the military and police forces, he would not act in the latter
to coerce threatened violations. Petitioner would not use force to meet aggression against himself or his
family, no matter how aggravated or whether or not carrying a danger of bodily harm to himself or others.
He is a believer in passive resistance. We need to consider only his attitude toward service in the armed
forces.
It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious belief.
In affirming the decision of the Illinois Supreme Court excluding Summers from the practice of law in that
state, the Federal Supreme Court held that the action of the State Supreme Court did not violate the principle
of religious freedom contained in the Constitution.
If a man lived, say on an island, alone and all by himself without neighbors, he would normally have complete
and absolute rights as to the way he lives, his religion, incuding the manners he practices his religious beliefs.
There would be no laws to obey, no rules and regulations to follow. He would be subject only to Nature's
physical laws. But man iis gregarious by nature and instinct and he gravitates toward community life, to
receive and enjoy the benefits of society and of social and political organization. The moment he does this
and he becomes a member of a community or nation, he has to give rights for the benefit of his fellow citizens
and for the general welfare, just as his fellow men and companions also agree to a limitation of their rights
in his favor. So, with his religion. He may retain retain his freedom or religious belief, but as to practising the
same, he would have to give up some of those practices repugnant to the general welfare and subordinate
them to the laws and sovereignty of the State. In order words, the practice of religion or religious belief is
subject to reasonable and non-discrminatory laws and regulations by the state.
In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme Court
affirmed a decision convicting Sarah Prince of a violation of the Child Labor Law of Massachusetts. Mr. Justice
Rutledge who wrote the opinion tersely described the case thus:
57
The case brings for review another episode in the conflict between Jehovah's Witneses and state authority.
This time Sarah Prince appeals from convictions for violating Massachusetts' child labor laws, by acts said to
be a rightful exercise of her religious convictions.
When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a girl nine years
of age. . . . (Emphasis supplied)
The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to
distribute religious pamphlets intended to propagate the religion of Johovah Wiitness. The question involved
was whether or not the law in question contravened the Fourtheenth Amendment by denying appellant
freedom of religion and denying to her the equal protection of the law. Defendant claimed that the child was
exercising her God given right and her constitutional right to preach the gospel and that no preacher of God's
commands shold be interfered with. She rested her case squarely on freedom of religion. In affirming the
judgment of conviction and upholding the law as agains the claiim of relgion and the exercise of religious
belief, the court said:
. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to guard the general
interest in youth's well-being, the state as parens patriae may restrict the parent's control by requiring shcool
attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified
merely because the parent grounds his claim to control the child's course of conduct on religion or
conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself
on relgious grounds. The right to practice religion freely does not include liberty to expose the community
or the child to communicable disease or the latter to ill health or death. . . . It is too late now to doubt that
legislation appropriately designed to reach such evils is withinthe state's police power, whether against the
parent's claim to control of the child or one that religious scruples dictate contrary action.
Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.
In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not
imposing a religion or religious belief or a religious test on said students. It was merely enforcing a non-
discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's
Witness. The State was 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. (Art. XIV, section 5 of the Constitution). It does nothing more
than try to inculcate in the minds of the school population during the formative period of their life, love of
country and love of the flag, all of which make for united and patriotic citizenry, so that later in after years
they may be ready and willing to serve, fight, even die for it. It is well known that whatever is taught to the
youth during this period, such as love of God, of parents, respect for elders, love of the truth, loyalty,
honoring one's word and respecting the rights of other, becomes a habit or second nature that will remain
with them always. School children of kingdoms and empires are taught early to respect and love the king or
the emperor for these rulers and sovereigns symbolize the nation, and the children as future citizens or
subjects will come to love their country.
Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly but they
do "question the attempt to compel conscientious objectors guided by the word of God to salute the flag or
participate in the ceremony to specific commandment of Jehovah God. It is perfectly proper and lawful for
one nt bound by a covenant with Jehovah to salute the flag when that person desires to salute it. It is entirely
wrong to interfere with that right or prevent such one from saluting the flag. Conversely, it is also true that
it is wrong and illegal to compel one who, for concience' sake, cannot participate in the ceremony." (p. 85,
Appellant's Brief)
The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they
have no valid right to such exemption is that the latter would disrupt shcool discipline and demoralize the
rest of the school population which by far constitutes the great majority. If the children of Jehovah Witnesses
are exempted, then the other pupils, especially the young ones seeing no reason for such exemption, would
naturlly ask for the same privilege because they might want to do something else such as play or study,
instead of standing at attention saluting the flag and singing the national anthem and reciting the patriotic
pledge, all of which consume considerable time; and if to avoid odions discrimination this exemption is
extended to others, then the flag ceremony would soon be 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 shcool population
imposed its will, demanded and was granted an exemption. In a way that might be regarded as tyranny of
the minority, and a small minority at that.
In a few cases, such exemptions in a limited way have been afforded members of a religious group.
Conscientious objectors in the United States who because of their religion were unwilling to serve in the war
particularly as regards actual fighting or field duty, were allowed to do some work in relation to the war, but
not involving combat duty or the use of force. But that was by special legislation. If that is possible here as
regards exemption from participation in the flag ceremony, then petitioners would have to look to the
Legislature, not the courts for relief.
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption form
or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by
competent authority. As was said by Mr. Justice Frankfurter in h is dissent in West Virginia vs. Barnette,
supra:
The constitutional protection of religious freedom ... 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. Religious loyalties may be exercised without hindrance from the State, not the State may not exercise
that which except by leave of religious loyalties is within the domain of temporal power. Otherwise, each
individual could set up his own censor against obedience to laws conscientiously deemed for the public good
by those whose business it is to make laws. (West Virginia State Board vs. Barnette, supra, at p. 653; emphasis
supplied)
In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration; rather
it is symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national
unity; that the flag salute is nt a religious ceremony but an act and profession of love and allegiance and
pledge of loyalty to the fatherland which the flag stands for; that by authority of the legislature, the Secretary
of Education was duly authorized to promulgate Department Order No. 8, series of 1955; that the
requirement of observance of the flag ceremony or salute provided for in said Department Order No. 8, does
not violate the Constitutional provision about freedom of religion and exercise of religion; that compliance
with the non-discriminatory and reasonable rules and regulations and school disicipline, including
observance of the flag ceremony is a prerequisite to attendance in public schools; and that for failure and
refusal to participate in the flag ceremony, petitioners were properly excluded and dismissed from the public
shcool they were attending.
In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction heretofore
issued is ordered dissolved. No costs.
58
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, 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 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 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 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:
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 lowered at sunset. The flag-staff 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.
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.
59
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 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. 63, No. 38 of September 21, 1987). Paragraph 5 of
Section 28 gives legislative cachet to the ruling in Gerona, thus:
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 Philippine 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:
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:
If 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; 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:
60
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.)
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 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' 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.
61
It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by
its in corporation in the Administrative Code of 1987, the present Court believes that the 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 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 of
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 law, to participate in a ceremony
that violates their religious beliefs, will hardly be conducive to love of country or respect for
dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):
. . . 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. . . . 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, . . . — 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 . . . 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:
. . . 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.)
62

We hold that a similar 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).

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 SET ASIDE.
The temporary restraining order which was issued by this Court is hereby made permanent.

SO ORDERED.
63
G.R. No. L-34854 November 20, 1978
FORTUNATO R. PAMIL, petitioner-appellant,
vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch
III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees.
Urbano H. Lagunay for petitioner.
Cristeto O. Cimagala for respondents.
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, Muñoz 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 an ecclesiastic
running for elective office is not tainted with any constitutional infirmity.
The vote is thus indecisive. While five members of the Court constitute a minority, the vote of
the remaining seven does not suffice to render the challenged provision ineffective. Section
2175 of the Revised Administrative Code, as far as ecclesiastics are concerned, must be
accorded respect. The presumption of validity calls for its application. Under the circumstances,
certiorari lies. That is the conclusion arrived at by the writer of this opinion, joined by Justice
Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice then but to vote for the
reversal of the lower court decision and declare ineligible respondent Father Margarito R.
Gonzaga for the office of municipal mayor. With the aforesaid five other members, led by the
Chief Justice, entertaining no doubt as to his lack of eligibility, this petition for certiorari must
be granted.
Except for the dispositive part announcing the judgment of the Court, the remainder of this
opinion sets forth the reasons why there are constitutional objections to the continuing force
and effectivity of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as
it is now under the present Charter, it is explicitly declared: "No religious test shall be required
for the exercise of civil or political rights." 5 The principle of the paramount character of the
fundamental law 6 thus comes into play. There are previous rulings to that effect. 6 The ban
imposed by the Administrative Code cannot survive. So the writer of this opinion would hold.
2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine
Islands shall continue in force until the inauguration of the Commonwealth of the Philippines;
thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until
amended, altered, modified, or repealed by the Congress of the Philippines, and all references
in such laws to the government or officials of the Philippines shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this Constitution." 7
It was first applied in People v. Linsangan, 8 decided in December, 1935, barely a month after
that Constitution took effect. This Court held that Section 2718 of the Revised Administrative
Code that would allow the prosecution of a person who remains delinquent in the payment of
cedula tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad
Santos, after setting forth that the Constitution prohibits the imprisonment for debt or non-
payment of poll tax: 10 "It seems too clear to require demonstration that section 2718 of the
Revised Administrative Code is inconsistent with section 1, clause 12, of Article Ill of the
Constitution in that, while the former authorizes imprisonment for non-payment of the poll or
cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the
Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and
no judgment of conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code,
could remove at pleasure any of the appointive officials under the Charter of the City of Baguio.
13 Relying on such a provision, the then President Quirino removed petitioner De los Santos,
who was appointed City Engineer of Baguio on July 16, 1946, and chose in his place respondent
Gil R. Mallare. Why such a power could not pass the test of validity under the 1935 Constitution
was pointed out by Justice Tuason thus: "So, unlike legislation that is passed in defiance of the
Constitution, assertive and menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity by the court to put it out of
the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the
statute book by the Constitution itself by express mandate before the petitioner was
appointed." 14
64

Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of
the 1935 Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was
found to be inoperative. As therein provided, the penalty of prision correccional is imposed on
any public officer or employee who, while the Congress was in regular or special session, would
arrest or search a member thereof, except in case he had committed a crime punishable by a
penalty higher than prision mayor. This Court ruled that the Revised Penal Code extended
unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such
a provision then was contrary to and in defiance of the clear expression of the will of the
Constitutional Convention of 1934 that such immunity was never intended to exempt members
of a legislative body from an arrest for a criminal offense, the phrase treason, felony and breach
of the peace being all-inclusive. Reference was likewise made to the prevailing American
doctrine to that effect as enunciated by Williamson v. United States. 17
3. It would be an unjustified departure from a settled principle of the applicable
construction of the provision on what laws remain operative after 1935 if the plea of petitioner
in this case were to be heeded. The challenged Administrative Code provision, certainly insofar
as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is
to impose a religious test. Torcaso v. Watkins 18 an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a provision in the Maryland
Constitution prescribing that "no religious test ought ever to be required as a disqualification
for any office or profit or trust in this State, other than a declaration of belief in the existence
of God ..." Such a constitutional requirement was assailed as contrary to the First Amendment
of the United States Constitution by an appointee to the office of notary public in Maryland,
who was refused a commission as he would not declare a belief in God. He failed in the
Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed
the state court decision. It could not have been otherwise. As emphatically declared by Justice
Black: "this Maryland religious test for public office unconstitutionally invades the appellant's
freedom of belief and religion and therefore cannot be enforced against him." 19
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.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional mandate. It is not a valid
argument against this conclusion to assert that under the Philippine Autonomy Act of 1916,
there was such a prohibition against a religious test, and yet such a ban on holding a municipal
position had not been nullified. It suffices to answer that no question was raised as to its
validity. In Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was assumed that there
was no conflict with the fundamental law.

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
65
G.R. No. L-68828 March 27, 1985
RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA MALINIS,
RICARDO LAVIÑA, CESAR CORTES, DANILO REYES, JOSE REYES, JOSEFINA MATE, LOURDES
CALMA, MILDRED JUAN, OLIVE GUANZON, FERNANDO COCHICO, SHERMAN CID, NAZARENO
BENTULAN, ROSLINA DONAIRE, MARIO MARTINEZ, BEATRIZ TEYLAN, ANGELINA LAPID,
ROSEMARIE FLORES, DANIEL VAN SOTO, EDGARDO MERCADER, NELLY AGUSTIN, MARILY
MAGCALAS, DAVID CHAN, ARSENIO SALANSANG, NELSON DE GUZMAN, MARCIANO ARANETA,
CESAR MENESES, DIONISIO RELLOSA, MARIO SANTIAGO, SEVERINO SANTOS, LEONORA
SANTOS, NIMFA DORONILLA, FLORENCE GUINTO, ROSALINA MANANSALA, PERCIVAL
OSTONAL, TOMMY MACARANAS, ROGER NICANDRO, petitioners,
vs.
GEN. SANTIAGO BARANGAN and MA. JOR ISABELO LARIOSA, respondents.
ESCOLIN, * J.:
Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the
issuance of [1] a writ of mandamus to compel respondents to allow them to enter and pray
inside St. Jude Chapel located at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin
respondents from preventing them from getting into and praying in said church.
The facts to be considered are the following:
At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of about 50
businessmen, students and office employees converged at J.P. Laurel Street, Manila, for the
ostensible purpose of hearing Mass at the St. Jude Chapel which adjoins the Malacañang
grounds located in the same street. Wearing the now familiar inscribed yellow T-shirts, they
started to march down said street with raised clenched fists 1 and shouts of anti-government
invectives. Along the way, however, they were barred by respondent Major lsabelo Lariosa,
upon orders of his superior and co-respondent Gen. Santiago Barangan, from proceeding any
further, on the ground that St. Jude Chapel was located within the Malacañang security area.
When petitioners' protestations and pleas to allow them to get inside the church proved
unavailing, they decided to leave. However, because of the alleged warning given them by
respondent Major Lariosa that any similar attempt by petitioners to enter the church in the
future would likewise be prevented, petitioners took this present recourse.
Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St.
Jude church. At the hearing of this petition, respondents assured petitioners and the Court that
they have never restricted, and will never restrict, any person or persons from entering and
worshipping at said church. They maintain, however, that petitioners' intention was not really
to perform an act of religious worship, but to conduct an anti-government demonstration at a
place close to the very residence and offices of the President of the Republic. Respondents
further lament petitioners' attempt to disguise their true motive with a ritual as sacred and
solemn as the Holy Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the
marchers, their raised clenched fists, and chants of anti-government slogans strongly tend to
substantiate respondents allegation. Thus, J.P. Fenix, commenting on the motive of petitioners'
mass action of October 2, 1984, wrote the following in his article entitled "Mission Impossible",
published in the October 12-18, 1984 issue of the "Mr. & Mrs." magazine:
They couldn't go through Mendiola Bridge, and so they dared to get even closer to the heart of
the matter. But as in Mendiola , the barbed wire barricades and the array of sheet metal shields
got in the way of the members of the August Twenty-One Movement (ATOM) as they tried last
October 2 to get to the pearly gates of power via the St. Jude Chapel on Laurel St. St. Jude
happens to be a neighbor of President Marcos, his (sic) chapel being adjacent to Malacañang.
...
The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in
invoking the constitutional guarantee of freedom of religious worship and of locomotion. While
it is beyond debate that every citizen has the undeniable and inviolable right to religious
freedom, the exercise thereof, and of all fundamental rights for that matter, must be done in
good faith. As Article 19 of the Civil Code admonishes: "Every person must in the exercise of his
rights and in the performance of his duties ... observe honesty and good faith."
Even assuming that petitioners' claim to the free exercise of religion is genuine and valid, still
respondents reaction to the October 2, 1984 mass action may not be characterized as violative
of the freedom of religious worship. Since 1972, when mobs of demonstrators crashed through
the Malacañang gates and scaled its perimeter fence, the use by the public of J.P. Laurel Street
and the streets approaching it have been restricted. While travel to and from the affected
thoroughfares has not been absolutely prohibited, passers-by have been subjected to
courteous, unobtrusive security checks. The reasonableness of this restriction is readily
perceived and appreciated if it is considered that the same is designed to protect the lives of
the President and his family, as well as other government officials, diplomats and foreign guests
transacting business with Malacañang. The need to secure the safety of heads of state and
other government officials cannot be overemphasized. The threat to their lives and safety is
constant, real and felt throughout the world. Vivid illustrations of this grave and serious
problem are the gruesome assassinations, kidnappings and other acts of violence and terrorism
that have been perpetrated against heads of state and other public officers of foreign nations.
Said restriction is moreover intended to secure the several executive offices within the
Malacañang grounds from possible external attacks and disturbances. These offices include
communications facilities that link the central government to all places in the land.
Unquestionably, the restriction imposed is necessary to maintain the smooth functioning of the
executive branch of the government, which petitioners' mass action would certainly disrupt.
Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution,
thus:
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
66

discrimination or preference, shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.

Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in
Cantwell v. Connecticut 2 said:

The constitutional inhibition on legislation on the subject of religion has a double aspect. On
the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of
any form of worship. Freedom of conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose cannot be restricted by law. On
the other hand, it safeguards the free exercise of the chosen form of religion. 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.

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
into action. This curtailment is in accord with the pronouncement of this Court in Gerona v.
Secretary of Education, 3 thus:

The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds.
One may believe in most anything, however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. 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. (Emphasis supplied)

Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the
Constitution, which provides:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court,
or when necessary in the interest of national security, public safety, or public health.

Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and
reasonableness of which have already been discussed, is allowed under the fundamental law,
the same having been established in the interest of national security.

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.
67
[A.M. No. 2440-CFI : July 25, 1981.]
IGLESIA NI CRISTO, Complainant, vs. JUDGE LEOPOLDO B. GIRONELLA, COURT OF FIRST
INSTANCE OF ABRA, Respondent.
RESOLUTION
FERNANDO, J.:
It is easily understandable why Mr. Teofilo C. Ramos, Sr. on behalf of the Iglesia ni Cristo would
take umbrage on the portion of the opinion of respondent Judge Leopoldo B. Gironella in the
course of acquitting the defendants accused of Triple Rape. Thus: "it will also be observed that
Florencio Ola was released on July 27, 1979, yet no action was taken by him from July 28, 1979,
to August 21 to denounce to the proper authorities what allegedly had happened to his wife
Merlinda Ola. Merlinda Ola, however, is a member of the Iglesia ni Cristo. Her husband
Florencio Ola and her in-laws were still in the process of being convinced to become members
of the Iglesia ni Cristo. As testified to by complainant Merlinda Ola, she also consulted her
brothers of the Iglesia ni Cristo as it was thru their assistance that made possible the institution
of this action. Her husband and in-laws are now members of the Iglesia ni Cristo. It cannot,
therefore, be discarded that the filing of the charge was resorted to as a gimmick of showing
to the community of La Paz, Abra in particular and to the public in general that the Iglesia ni
Cristo unhesitatingly helps its member of his/her problem." 1 There was absolutely no need for
the last sentence therein being included. Respondent judge was charged with ignorance of the
law and conduct unbecoming a member of the bench. While the offending portion of such
opinion is not impressed with such gravity, disciplinary action nonetheless is warranted.
As noted in the report of Court Administrator Lorenzo Relova, adopting the memorandum of
Deputy Court Administrator Romeo D. Mendoza: "Respondent judge, in his comment dated
January 20, 1981, alleged that the charges made against him by herein complainant are unfair
and unfounded as the decision rendered by him in Criminal Case No. 2003, acquitting the three
cranad(3) accused of Triple Rape, was prepared by him in the honest conviction that the
evidence adduced at the trial of said case was not sufficiently clear to establish the guilt of the
accused beyond reasonable doubt. Respondent judge further contended that the statements
complained of are his honest appraisal and evaluation of the evidence for the prosecution,
particularly the statement of the complainant witness cranad(Merlinda Ola), in addition to the
fact that she had always been accompanied in court during the trial by Ministers of the Iglesia
ni Cristo and numerous members of the sect." 2 There was a reply on the part of complainant,
Teofilo Ramos, Sr. who, according to the report, "claimed that the statement made by the
herein respondent judge that the complaining witness had always been accompanied in court
during the trial by Ministers of the Iglesia ni Cristo and numerous members of said sect, was
uncalled for and intended to further malign the Iglesia ni Cristo, thereby seriously putting under
doubt respondent judge's competency and integrity as a magistrate of the law. He also claimed
that the inconsistencies in the testimony of the rape victim in the said criminal case were minor
matters that did not disprove the commission of the crime of rape by the members of the police
authorities as well as their identities. Complainant proferred as an excuse for said
inconsistencies the fact that the victim is a simple and unlearned housewife and no malicious
motive or evil intent had been shown at the trial which had impelled said victim to point an
accusing finger against the three cranad(3) accused in the subject criminal case." 3 In the state
of the record, it was submitted in such report that "on the basis of the pleadings and other
documents of record, respondent judge's liability or lack of it can already be determined
without need of further investigation. Accordingly, the undersigned finds it unnecessary to
refer this case to a Justice of the Court of Appeals for investigation. This Court, in the case of
Sta. Maria. v. Ubay, held that 'cumbersome, time-consuming procedure of investigation need
not be resorted to if the allegations in the complaint, the comments thereon, and the
documents presented provide ample basis for a resolution of the complainant's charges.'" 4
This administrative complaint, therefore, is ripe for resolution. The use of the word "gimmick"
could offend the sensibilities of the members of Iglesia ni Cristo. It is not inaccurate to state
that as understood in the popular sense, it is not exactly complimentary. It may indicate lack of
sincerity. It is a ploy or device to persuade others to take a course of action, which without it
may not be acceptable. While it would be going too far to assert that intentional deceit is
employed, it could have that effect. The Latin maxim, Suggestio falsi est suppressio veri, comes
to mind. It is to be expected that a religious sect accused of having to resort to a "gimmick" to
gain converts would certainly be far from pleased. Freedom of religion 5 implies respect for
every creed. No one, much less a public official, is privileged to characterize the actuation of its
adherents in a derogatory sense. It should not be lost sight of either that the attendance at a
trial of many members of a religious sect finds support in the Constitution. The right to a public
trial is safeguarded by the fundamental law. 6 No adverse implication can arise from such an
occurrence. It goes without saying that if their presence would create disorder, it lies within
the power of a trial judge to maintain the proper decorum.
The Court, however, takes into consideration the fact that the right of a court to give expression
to its views is equally deserving of protection. At any rate, it is not an affront to rationality if
note be taken that not all members of the bench are possessed of such an extensive vocabulary
in the English language that the misuse of a word is to be followed automatically by reprisal of
a severe character. While under the circumstances, some members of the Court are of the
opinion that censure is warranted, it is the view of the majority that an admonition would
suffice.
WHEREFORE, Judge Leopoldo B. Gironella is hereby admonished to be much more careful in
the use of language likely to offend an individual or religious sect.
A.M. No. P-02-1651 June 22, 2006
68
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands
before the Court invoking her religious freedom and her Jehovah God in a bid to save her family – united
without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its power
to regulate her behavior and protect its interest in marriage and family and the integrity of the courts where
respondent is an employee. How the Court will tilt the scales of justice in the case at bar will decide not only
the fate of respondent Escritor but of other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the Office of the Court Administrator on
August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and
having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an immoral
act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.2 Consequently, respondent was charged with committing
"disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when her husband was still alive but living with another
woman. She also admitted that she and Quilapio have a son.5 But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their religious beliefs and has the approval of her congregation.6
In fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."7
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned
by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and
binding within the congregation all over the world except in countries where divorce is allowed. As laid out
by the tenets of their faith, the Jehovah’s congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good standing may execute the Declaration,
which requires the approval of the elders of the congregation. As a matter of practice, the marital status of
the declarants and their respective spouses’ commission of adultery are investigated before the declarations
are executed.8 Escritor and Quilapio’s declarations were executed in the usual and approved form prescribed
by the Jehovah’s Witnesses,9 approved by elders of the congregation where the declarations were
executed,10 and recorded in the Watch Tower Central Office.11
Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the
validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she
was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not
capacitated to remarry. Thus, their declarations remained valid.12 In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and
Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable,13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of
the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving
religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent’s plea of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which must be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue
of whether respondent was to be held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to
the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;
(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and
practice; and
(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s
religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been
ruled upon prior to the remand, and constitute "the law of the case" insofar as they resolved the issues of
which framework and test are to be applied in this case, and no motion for its reconsideration having been
filed.16 The only task that the Court is left to do is to determine whether the evidence adduced by the State
proves its more compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the
69
complainant, respondent nor the government has filed a motion for reconsideration assailing this ruling, the
same has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling
constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it would overturn the
parties’ right to rely upon our interpretation which has long attained finality, it also runs counter to
substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpio’s belated attempts to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion
clauses, because "one cannot understand, much less intelligently criticize the approaches of the courts and
the political branches to religious freedom in the recent past in the United States without a deep appreciation
of the roots of these controversies in the ancient and medieval world and in the American experience."17
We delved into the conception of religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.18 Then, religion developed on its
own and became superior to the state,19 its subordinate,20 and even becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and
mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service.
This was the context in which the unique experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to deal with religion. As James Madison
said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it. 23
The omission of an express guaranty of religious freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of
the religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did
not take away or abridge any power of the national government; its intent was to make express the absence
of power.24 It commands, in two parts (with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
25
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory
purposes. They have a single goal—to promote freedom of individual religious beliefs and practices. In
simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the Establishment Clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses were
intended to deny government the power to use either the carrot or the stick to influence individual religious
beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion
as an engine to promote state interests, to the principle of non-establishment to allow the free exercise of
religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses’ interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors to the
Philippine religion clauses, although we have significantly departed from the U.S. interpretation as will be
discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread agreement
regarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement has been reached by those who
have studied the religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress
renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the
tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of
governmental neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of church-state separation with a
rigid reading of the principle. On the other hand, the second standard, the benevolent neutrality or
accommodation, is buttressed by the view that the wall of separation is meant to protect the church from
the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the
church, and the state’s hostility towards religion allows no interaction between the two. According to this
Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers.29 Only the complete
separation of religion from politics would eliminate the formal influence of religious institutions and provide
for a free choice among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return
for huge amounts of mostly indirect aid from religion.31 For example, less than twenty-four hours after
Congress adopted the First Amendment’s prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a
resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer.32
Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has
never existed and is never likely to.33
70
The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in Everson v. Board of Education,34 where the Court declared
that Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment. However, unlike the
strict separationists, the strict neutrality view believes that the "wall of separation" does not require the
state to be their adversary. Rather, the state must be neutral in its relations with groups of religious believers
and non-believers. "State power is no more to be used so as to handicap religions than it is to favor them."35
The strict neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used
as a basis for classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It
does not permit, much less require, accommodation of secular programs to religious belief.36
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out
by Justice Goldberg in his concurring opinion in Abington School District v. Schempp,37 strict neutrality could
lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the
religious" which is prohibited by the Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause.
The Framers, whatever specific applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the free exercise of religion but not,
say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes mandating
religious classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality,
is that while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state
separation," in real life, church and state are not and cannot be totally separate. This is all the more true in
contemporary times when both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to protect the church from the state.41 This
doctrine was expressed in Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no
concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the
state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could
not be required to pay even property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their places of worship would violate
the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths-
these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies
would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication
with which the Court opens each session: "God save the United States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects
the religious nature of our people and accommodates the public service to their spiritual needs. To hold that
it may not would be to find in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their effective scope of
religious influence. 43
Benevolent neutrality recognizes that religion plays an important role in the public life of the United States
as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of "In God We Trust" on American currency; the recognition of
America as "one nation under God" in the official pledge of allegiance to the flag; the Supreme Court’s time-
honored practice of opening oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination, to lead representatives in prayer. These practices clearly show the
preference for one theological viewpoint—the existence of and potential for intervention by a god—over
the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the
building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the
legislature in daily prayers,45 or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;46 for government to give money to religiously-
affiliated organizations to teach adolescents about proper sexual behavior;47 or to provide religious school
pupils with books;48 or bus rides to religious schools;49 or with cash to pay for state-mandated standardized
tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both. This
is true whether one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation
of religion may be allowed, not to promote the government’s favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan
explained, the "government [may] take religion into account…to exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and practices would otherwise
thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious
exercise may flourish."51 In the ideal world, the legislature would recognize the religions and their practices
71
and would consider them, when practical, in enacting laws of general application. But when the legislature
fails to do so, religions that are threatened and burdened may turn to the courts for protection.52
Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a
facially neutral law, but an exemption from its application or its "burdensome effect," whether by the
legislature or the courts.53 Most of the free exercise claims brought to the U.S. Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case
of Sherbert v. Verner,55 which ruled that state regulation that indirectly restrains or punishes religious belief
or conduct must be subjected to strict scrutiny under the Free Exercise Clause.56 According to Sherbert,
when a law of general application infringes religious exercise, albeit incidentally, the state interest sought to
be promoted must be so paramount and compelling as to override the free exercise claim. Otherwise, the
Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s 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 appellant’s constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her constitutional right of free
exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a
"compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. .
. ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n
this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give
occasion for permissible limitation.’"58 The Court found that there was no such compelling state interest to
override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s 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
Sherbert’s benefits would force her to choose between receiving benefits and following her religion. This
choice placed "the same kind of burden upon the free exercise of religion as would a fine imposed against
(her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption doctrine,
59 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law
embodies a compelling interest, that no less restrictive alternative exists, and that a religious exemption
would impair the state’s ability to effectuate its compelling interest. As in other instances of state action
affecting fundamental rights, negative impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in
order, notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny,
the Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance
laws. The Court, in effect, granted exemption from a neutral, criminal statute that punished religiously
motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim
that such attendance interferes with the practice of a legitimate religious belief, it must appear either that
the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest
of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long
before there was general acknowledgement of the need for universal education, the Religion Clauses had
specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right
was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values
underlying these two provisions relating to religion have been zealously protected, sometimes even at the
expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest
order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection
of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power to promote the health, safety,
and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the State is not to deny that
there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond
the power of the State to control, even under regulations of general applicability. . . .This case, therefore,
does not become easier because respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot be neatly confined in logic-tight
compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject
to heightened scrutiny or compelling interest test if government substantially burdened the exercise of
religion; (b) heightened scrutiny or compelling interest test governed cases where the burden was direct,
i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit;63 and (c) the Court
could carve out accommodations or exemptions from a facially neutral law of general application, whether
general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond
speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to
work on the Sabbath nor the Amish parents’ refusal to let their children attend ninth and tenth grades can
be classified as conduct protected by the other clauses of the First Amendment. Second, indirect impositions
on religious conduct, such as the denial of twenty-six weeks of unemployment insurance benefits to Adel
Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder, were prohibited. Third,
as the language in the two cases indicate, the protection granted was extensive. Only extremely strong
governmental interests justified impingement on religious conduct, as the absolute language of the test of
the Free Exercise Clause suggests. 64
72
Fourth, the strong language was backed by a requirement that the government provide proof of the
important interest at stake and of the dangers to that interest presented by the religious conduct at issue.
Fifth, in determining the injury to the government’s interest, a court was required to focus on the effect that
exempting religious claimants from the regulation would have, rather than on the value of the regulation in
general. Thus, injury to governmental interest had to be measured at the margin: assuming the law still
applied to all others, what would be the effect of exempting the religious claimant in this case and other
similarly situated religious claimants in the future? Together, the fourth and fifth elements required that
facts, rather than speculation, had to be presented concerning how the government’s interest would be
harmed by excepting religious conduct from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline
to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the
likelihood of exaggeration of the weight on the governmental interest side of the balance, by not allowing
speculation about the effects of a decision adverse to those interests nor accepting that those interests
would be defined at a higher level of generality than the constitutional interests on the other side of the
balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that collided with religious practices.
Although the members of the U.S. Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of religion.67 Most scholars and
courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of
heightened scrutiny protection, if not always a compelling interest one.68 The 1990 case of Employment
Division, Oregon Department of Human Resources v. Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenic
substance. Specifically, individuals challenged the state’s determination that their religious use of peyote,
which resulted in their dismissal from employment, was misconduct disqualifying them from receipt of
unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption
from an otherwise valid law. Scalia said that "[w]e have never held that an individual’s religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On
the contrary, the record of more than a century of our free exercise jurisprudence contradicts that
proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general applicability of the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as
Cantwell, Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims
alone. All involved "the Free Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press, or the right of parents to direct the education of their children." 73 The
Court said that Smith was distinguishable because it did not involve such a "hybrid situation," but was a free
exercise claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability
that burden religion. Justice Scalia said that "[p]recisely because ‘we are a cosmopolitan nation made up of
people of almost conceivable religious preference,’ and precisely because we value and protect that religious
divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an interest of the highest order." The Court said
that those seeking religious exemptions from laws should look to the democratic process for protection, not
the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling
justification approach were abandoned for evaluating laws burdening religion; neutral laws of general
applicability only have to meet the rational basis test, no matter how much they burden religion. 77
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest
test, asserting that "(t)he compelling state interest test effectuates the First Amendment’s command that
religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not
permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling
government interest ‘of the highest order.’"78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First Amendment’s mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society." 79
Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted
precisely to protect the rights of those whose religious practice are not shared by the majority and may be
viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting
Justices agreed with Justice O’Connor that the majority had mischaracterized precedents, such as in
describing Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also argued
that strict scrutiny should be used in evaluating government laws burdening religion. 81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan majority of Congress
noisily denounced the decision.83 Smith has the rather unusual distinction of being one case that is almost
universally despised (and this is not too strong a word) by both the liberals and conservatives.84 Liberals
chasten the Court for its hostility to minority faiths which, in light of Smith’s general applicability rule, will
allegedly suffer at the hands of the majority faith whether through outright hostility or neglect. Conservatives
bemoan the decision as an assault on religious belief leaving religion, more than ever, subject to the caprice
of an ever more secular nation that is increasingly hostile to religious belief as an oppressive and archaic
anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.86 First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. 87 Critics of Smith have worried about
religious minorities, who can suffer disproportionately from laws that enact majoritarian mores.88 Smith, in
effect would allow discriminating in favor of mainstream religious groups against smaller, more peripheral
groups who lack legislative clout,89 contrary to the original theory of the First Amendment.90 Undeniably,
claims for judicial exemption emanate almost invariably from relatively politically powerless minority
religions and Smith virtually wiped out their judicial recourse for exemption.91 Second, Smith leaves too
much leeway for pervasive welfare-state regulation to burden religion while satisfying neutrality. After all,
laws not aimed at religion can hinder observance just as effectively as those that target religion.92
Government impairment of religious liberty would most often be of the inadvertent kind as in Smith
considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is
73
nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it
would be left almost meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine simply defies common
sense. The state should not be allowed to interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to effectively pursue its objective without
serious inadvertent impact on religion.95
At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
limiting the term "religion" in today’s pluralistic society, and (2) the belief that courts have no business
determining the significance of an individual’s religious beliefs. For the Smith Court, these two concerns
appear to lead to the conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free exercise protection
to the political process or to allow a "system in which each conscience is a law unto itself." 96 The Court’s
characterization of its choices have been soundly rejected as false, viz:
If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the Court
has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply
and this should not be applied at all. The Constitution does not give the judiciary the option of simply refusing
to interpret its provisions. The First Amendment dictates that free exercise of "religion" must be protected.
Accordingly, the Constitution compels the Court to struggle with the contours of what constitutes "religion."
There is no constitutional opt-out provision for constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area
of middle ground exists between the Court’s two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult issues such as defining religion and
possibly evaluating the significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance against the
importance of general laws the significance of religious practice," and then dismisses it as a "parade of
horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance
rather than acquiesce to the Court’s approach of simply refusing to grant any constitutional significance to
their beliefs at all. If the Court is concerned about requiring lawmakers at times constitutionally to exempt
religious individuals from statutory provisions, its concern is misplaced. It is the lawmakers who have sought
to prevent the Court from dismantling the Free Exercise Clause through such legislation as the [Religious
Freedom Restoration Act of 1993], and in any case, the Court should not be overly concerned about hurting
legislature’s feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court is
concerned about putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should
be expected to fulfill.97
Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to
regulate"—an assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has been sharply
criticized even implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did
not do so by opposing the arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision made shocking use of
precedent]—those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two constitutional rights combined—the right of parents to
direct the education of their children and the right of free exercise of religion. Under the Court’s opinion in
Smith, the right of free exercise of religion standing alone would not allow Amish parents to disregard the
compulsory school attendance law, and under the Court’s opinion in Yoder, parents whose objection to the
law was not religious would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined?99 As for Sherbert, the Smith Court
attempted to limit its doctrine as applicable only to denials of unemployment compensation benefits where
the religiously-compelled conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious person was more likely to
be entitled to constitutional protection when forced to choose between religious conscience and going to
jail than when forced to choose between religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially from the religious community, and
commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.101 So much was
the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA)
of 1993.102 The RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise
claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the requirement that
the government justify burdens on religious exercise imposed by laws neutral toward religion."103 The Act
declares that its purpose is to restore the compelling interest test as set forth in Sherbert v. Verner and
Wisconsin v. Yoder, and to guarantee its application in all cases where free exercise of religion is substantially
burdened; and to provide a claim of defense to a person whose religious exercise is substantially burdened
by government.104 The RFRA thus sought to overrule Smith and make strict scrutiny the test for all free
exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled
that Congress is empowered to enact laws "to enforce the amendment," but Congress is not "enforcing"
when it creates new constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect
for the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement in the Bill of Rights are
not thereby banished from the political process. Just as society believes in the negative protection accorded
to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the
printed word, so also a society that believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial power
to say what the Constitution means, the law offered no definition of Free Exercise, and on its face appeared
to be a procedural measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to act towards the states in matters of religion
arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover,
if we consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is
grossly inconsistent with the importance placed by the framers on religious faith. Smith is dangerous
precedent because it subordinates fundamental rights of religious belief and practice to all neutral, general
74
legislation. Sherbert recognized the need to protect religious exercise in light of the massive increase in the
size of government, the concerns within its reach, and the number of laws administered by it. However,
Smith abandons the protection of religious exercise at a time when the scope and reach of government has
never been greater. It has been pointed out that Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force conformity on religious minorities whose practice
irritate or frighten an intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating
the Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the
Bill of Rights, the religion clauses of the First Amendment are most important to those who cannot prevail in
the political process. The Court in Smith ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because mainstream religions generally have been
successful in protecting their interests through the political process, it is the non-mainstream religions that
are adversely affected by Smith. In short, the U.S. Supreme Court has made it clear to such religions that they
should not look to the First Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or
legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit.111
Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all
three conditions of the compelling interest test are met, i.e, a statute or government action has burdened
claimant’s free exercise of religion, and there is no doubt as to the sincerity of the religious belief; the state
has failed to demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to make exemptions. Thus,
if the state’s objective could be served as well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder case is an
example where the Court held that the state must accommodate the religious beliefs of the Amish who
objected to enrolling their children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must accommodate the religious
convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in public schools and
Marsh v. Chambers,115 allowing payment of legislative chaplains from public funds. Parenthetically, the
Court in Smith has ruled that this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does
not mean that all claims for free exercise exemptions are valid.116 An example where accommodation was
prohibited is McCollum v. Board of Education,117 where the Court ruled against optional religious instruction
in the public school premises.118
Given that a free exercise claim could lead to three different results, the question now remains as to how
the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to
carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face
is argued to prevent or burden what someone’s religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise arguments contemplate
religious exemptions from otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the
First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.120 Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs,
the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimant’s
beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimant’s religious denomination. ‘Only beliefs rooted in religion are protected
by the Free Exercise Clause’; secular beliefs, however sincere and conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has also
further been split by the view that the First Amendment requires accommodation, or that it only allows
permissible legislative accommodations. The current prevailing view as pronounced in Smith, however, is
that that there are no required accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis-à-vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
clear that one cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses as
embodied in the First Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in the
U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme Court as constituting
permissive accommodations, similar exemptions for religion are mandatory accommodations under our own
75
constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church
property,123 salary of religious officers in government institutions,124 and optional religious instruction.125
Our own preamble also invokes the aid of a divine being.126 These constitutional provisions are wholly ours
and have no counterpart in the U.S. Constitution or its amendments. They all reveal without doubt that the
Filipino people, in adopting these constitutions, manifested their adherence to the benevolent neutrality
approach that requires accommodations in interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted
that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935
Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as early as 1935,
or more than three decades before the U.S. Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution,
insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted
from the First Amendment of the U.S. Constitution xxxx 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 [i.e., separation and benevolent neutrality]. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes
before the Court, 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. From this construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions,
and the enforcement of this intent is the goal of construing the constitution.129 [citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion
clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of
general application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has
never held that "an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate," our own Constitutions have made significant
changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court has allowed
exemptions from a law of general application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff exemption from a
law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an
ordinance to secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the
business of general merchandise under the city’s ordinances. Plaintiff argued that this amounted to "religious
censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution
and sale of bibles and other religious literature to the people of the Philippines." Although the Court
categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in
the business or occupation of selling said "merchandise" for profit, it also ruled that applying the ordinance
to plaintiff and requiring it to secure a license and pay a license fee or tax would impair its free exercise of
religious profession and worship and its right of dissemination of religious beliefs "as the power to tax the
exercise of a privilege is the power to control or suppress its enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of
Schools.132 The case involved several Jehovah’s Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an earlier ruling
denying such exemption,133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is
the existence of a grave and present danger of a character both grave and imminent, of a serious evil to
public safety, public morals, public health or any other legitimate public interest, that the State has a right
(and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools
is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope
Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive
accommodation, where religious exemption is granted by a legislative act. In Victoriano, the constitutionality
of Republic Act No. 3350 was questioned. The said R.A. exempt employees from the application and coverage
of a closed shop agreement—mandated in another law—based on religious objections. A unanimous Court
upheld the constitutionality of the law, holding that "government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or sect."
Interestingly, the secular purpose of the challenged law which the Court upheld was the advancement of
"the constitutional right to the free exercise of religion."136
Having established that benevolent neutrality-accommodation is the framework by which free exercise cases
must be decided, the next question then turned to the test that should be used in ascertaining the limits of
the exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and
ruled that in cases involving purely conduct based on religious belief, as in the case at bar, the compelling
state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the "immediate and grave
danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
76
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of
American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test. Victoriano was the only case that employed the "compelling state interest" test, but
as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where
the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled,
is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects
on the state’s interests: some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish
a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental
right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.
In determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be
the guide. The "compelling state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of
the benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test
needs to be applied by the Court in determining the validity of a free exercise claim of exemption as made
here by Escritor." This assertion is inconsistent with the position negating the benevolent neutrality or
accommodation approach. If it were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test to determine the validity of a
free exercise claim, as any and all claims for religious exemptions from a law of general application would
fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims because
it forces the Court to confront how far it can validly set the limits of religious liberty under the Free Exercise
Clause, rather than presenting the separation theory and accommodation theory as opposite concepts, and
then rejecting relevant and instructive American jurisprudence (such as the Smith case) just because it does
not espouse the theory selected." He then asserts that the Smith doctrine cannot be dismissed because it
does not really espouse the strict neutrality approach, but more of permissive accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only legislative
accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of
religion exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith
doctrine actually espouses the theory of accommodation or benevolent neutrality, the accommodation is
limited to the permissive, or legislative exemptions. It, therefore, cannot be used as a test in determining the
claims of religious exemptions directly under the Free Exercise Clause because Smith does not recognize such
exemption. Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine would effectively render the Free
Exercise protection—a fundamental right under our Constitution—nugatory because he would deny its
status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this
process in detail, by showing the questions which must be answered in each step, viz:
…First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts
often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because
the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of
the claimant’s belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory
regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the objectives at risk if exemption is
given; it must precisely show how and to what extent those objectives will be undermined if exemptions are
granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of
the state?" The analysis requires the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three situations of accommodation:
First, mandatory accommodation would result if the Court finds that accommodation is required by the Free
Exercise Clause. Second, if the Court finds that the State may, but is not required to, accommodate religious
interests, permissive accommodation results. Finally, if the Court finds that that establishment concerns
prevail over potential accommodation interests, then it must rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation can carve
out an exemption from a law of general application. He posits the view that the law should prevail in the
absence of a legislative exemption, and the Court cannot make the accommodation or exemption.
Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American Bible
Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-
accommodation covers not only the grant of permissive, or legislative accommodations, but also mandatory
77
accommodations. Thus, an exemption from a law of general application is possible, even if anchored directly
on an invocation of the Free Exercise Clause alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption
from a general federal law criminalizing polygamy, even if it was proven that the practice constituted a
religious duty under their faith.140 In contradistinction, Philippine law accommodates the same practice
among Moslems, through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy "shall not apply
to a person married…under Muslim law." Thus, by legislative action, accommodation is granted of a Muslim
practice which would otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized this
accommodation when, in his dissent in our Decision dated August 4, 2003 and citing Sulu Islamic Association
of Masjid Lambayong v. Malik,141 he stated that a Muslim Judge "is not criminally liable for bigamy because
Shari’a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in this
jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty of
religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from
generally applicable laws to individuals whose religious practice conflict with those laws," his theory is
infirmed by the showing that the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the Philippine Constitution, our
legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to
the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred
right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable
when the law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio
conceded that there is no question that in the Philippine context, accommodations are made, the question
remains as to how far the exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding that
the Free Exercise Clause required the accommodation, or mandatory accommodations) has already been
decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of general
application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced
and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially neutral law
would have on religious exercise. Just because the law is criminal in nature, therefore, should not bring it out
of the ambit of the Free Exercise Clause. As stated by Justice O’Connor in her concurring opinion in Smith,
"[t]here is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for
laws neutral towards religion can coerce a person to violate his religious conscience or intrude upon his
religious duties just as effectively as laws aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who
are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary
to protect adherents of minority religions from the inevitable effects of majoritarianism, which include
ignorance and indifference and overt hostility to the minority. As stated in our Decision, dated August 4,
2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views, even
in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable
as a practical matter because some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so great and the advancement of
public purposes so small or incomparable that only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make
such exemptions when the need is brought to their attention, but this may not always be the case when the
religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases,
a constitutional interpretation that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a constitutional interpretation that
requires accommodations extends this treatment to religious faiths that are less able to protect themselves
in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be
applied for the first time, as an exemption of such nature, albeit by legislative act, has already been granted
to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the
Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property,
the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant.
Given the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a
claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a
general criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it.
This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain.
Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection. This is precisely the purpose of the test—to
draw the line between mandatory, permissible and forbidden religious exercise. Thus, under the framework,
the Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the protection
afforded by the religion clauses of the Constitution.144 As stated in the Decision:
78
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest or
the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed. We here lay down the doctrine that
in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as
discussed above, but more importantly, because our constitutional history and interpretation indubitably
show that benevolent neutrality is the launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority, however large but for each of us" to the
greatest extent possible within flexible constitutional limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the careful
application of the compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s
report,146 along with the evidence submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the administrative charge of
"disgraceful and immoral conduct." It is at this point then that we examine the report and documents
submitted by the hearing officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent’s claimed religious belief and practice are beyond serious doubt.147 Thus, having
previously established the preliminary conditions required by the compelling state interest test, i.e., that a
law or government practice inhibits the free exercise of respondent’s religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the exemption based on the free exercise clause,
the burden shifted to the government to demonstrate that the law or practice justifies a compelling secular
objective and that it is the least restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering
paramount interests" which could limit or override respondent’s fundamental right to religious freedom.
Neither did the government exert any effort to show that the means it seeks to achieve its legitimate state
objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach,
Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s
claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued and
signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and
practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement
within the congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection for
respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution148 and the Family Code,149 argues that
marriage and the family are so crucial to the stability and peace of the nation that the conjugal arrangement
embraced in the Declaration of Pledging Faithfulness should not be recognized or given effect, as "it is utterly
destructive of the avowed institutions of marriage and the family for it reduces to a mockery these legally
exalted and socially significant institutions which in their purity demand respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he
asserts that the State has a compelling interest in the preservation of marriage and the family as basic social
institutions, which is ultimately the public policy underlying the criminal sanctions against concubinage and
bigamy. He also argues that in dismissing the administrative complaint against respondent, "the majority
opinion effectively condones and accords a semblance of legitimacy to her patently unlawful cohabitation..."
and "facilitates the circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by choosing
to turn a blind eye to respondent’s criminal conduct, the majority is in fact recognizing a practice, custom or
agreement that subverts marriage. He argues in a similar fashion as regards the state’s interest in the sound
administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage
and the family, or even in the sound administration of justice. Indeed, the provisions by which respondent’s
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage
and family in the Civil Code and Family Code, all clearly demonstrate the State’s need to protect these secular
interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in
our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the
most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend
that the state’s interest is important, because our Constitution itself holds the right to religious freedom
sacred. The State must articulate in specific terms the state interest involved in preventing the exemption,
which must be compelling, for only the gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause
as a source of right by itself.
Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or even
"in the sound administration of justice" that must be weighed against respondent’s claim, but the State’s
narrow interest in refusing to make an exception for the cohabitation which respondent’s faith finds moral.
In other words, the government must do more than assert the objectives at risk if exemption is given; it must
precisely show how and to what extent those objectives will be undermined if exemptions are granted.151
This, the Solicitor General failed to do.
To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in enforcing
its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely
abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition
is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the
case at bar, the State has not evinced any concrete interest in enforcing the concubinage or bigamy charges
against respondent or her partner. The State has never sought to prosecute respondent nor her partner. The
State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our
79
Decision, dated August 4, 2003, to deny the exemption would effectively break up "an otherwise ideal union of two
individuals who have managed to stay together as husband and wife [approximately twenty-five years]" and have
the effect of defeating the very substance of marriage and the family.
The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that "the
conjugal arrangement of respondent and her live-in partner should not be condoned because adulterous
relationships are constantly frowned upon by society";152 and "that State laws on marriage, which are moral in
nature, take clear precedence over the religious beliefs and practices of any church, religious sect or denomination
on marriage. Verily, religious beliefs and practices should not be permitted to override laws relating to public policy
such as those of marriage."153
The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her
dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have already
been addressed in our decision dated August 4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-
Santiago’s dissenting opinion dwelt more on the standards of morality, without categorically holding that religious
freedom is not in issue.155 We, therefore, went into a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses
prohibit the state from establishing a religion, including the morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers,157 or "public
morals" in the Revised Penal Code,158 or "morals" in the New Civil Code,159 or "moral character" in the
Constitution,160 the distinction between public and secular morality on the one hand, and religious morality, on the
other, should be kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests;162
(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where it has authority.163
(d) Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively liable.164 Only one conduct is in question
before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes "disgraceful and
immoral conduct," the case at bar involves the defense of religious freedom, therefore none of the cases cited by
Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine jurisdiction holding that the defense
of religious freedom of a member of the Jehovah’s Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct
prejudicial to the best interest of the service, and we reiterate that 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." Indeed, there is no evidence of the alleged prejudice to the best interest of the service.168
Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent
exemption from the laws which respondent Escritor has been charged to have violated, the exemption would not
apply to Catholics who have secured church annulment of their marriage even without a final annulment from a civil
court. First, unlike Jehovah’s Witnesses, the Catholic faith considers cohabitation without marriage as immoral.
Second, but more important, the Jehovah’s Witnesses have standards and procedures which must be followed before
cohabitation without marriage is given the blessing of the congregation. This includes an investigative process
whereby the elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal impediments for the couple are lifted, the
validity of the Declaration ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the
issue of equality among religions, we look to the words of the Religion Clauses, which clearly single out religion for
both a benefit and a burden: "No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof…" On its face, the language grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage, preventing the government from supporting it. To
understand this as a provision which puts religion on an equal footing with other bases for action seems to be a
curious reading. There are no "free exercise" of "establishment" provisions for science, sports, philosophy, or family
relations. The language itself thus seems to answer whether we have a paradigm of equality or liberty; the language
of the Clause is clearly in the form of a grant of liberty. 169
In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is oppressive to
the minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from
the majority, the question of which perspective is appropriate would seem easy to answer. Moreover, the text,
history, structure and values implicated in the interpretation of the clauses, all point toward this perspective. Thus,
substantive equality—a reading of the religion clauses which leaves both politically dominant and the politically weak
religious groups equal in their inability to use the government (law) to assist their own religion or burden others—
makes the most sense in the interpretation of the Bill of Rights, a document designed to protect minorities and
individuals from mobocracy in a democracy (the majority or a coalition of minorities). 170
As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause.171 Thus, in arguing that respondent
should be held administratively liable as the arrangement she had was "illegal per se because, by universally
recognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to good
conscience,"172 the Solicitor General failed to appreciate that benevolent neutrality could allow for accommodation
of morality based on religion, provided it does not offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary
to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties.174 Again, the Solicitor General utterly failed to prove this element of the
test. Other than the two documents offered as cited above which established the sincerity of respondent’s religious
belief and the fact that the agreement was an internal arrangement within respondent’s congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any such evidence to show
that the means the state adopted in pursuing this compelling interest is the least restrictive to respondent’s religious
freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal
arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental
right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms -
including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man
stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so
compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence
of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
80
[G.R. No. 47800. December 2, 1940.]
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
Maximo Calalang in his own behalf.
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court
this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of the National
Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of Public
Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez, as
Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved to
recommend to the Director of Public Works and to the Secretary of Public Works and Communications that
animal-drawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon de la
Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal
Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m.,
from a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Chairman
of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works the
adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the
Secretary of Public Works and Communications, to promulgate rules and regulations to regulate and control
the use of and traffic on national roads; that on August 2, 1940, the Director of Public Works, in his first
indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval
of the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the
modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940,
the Secretary of Public Works and Communications, in his second indorsement addressed to the Director of
Public Works, approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to
traffic of animal-drawn vehicles, between the points and during the hours as above indicated, for a period of
one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of Manila and the
Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulations thus
adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not allowed to pass and
pick up passengers in the places above-mentioned to the detriment not only of their owners but of the riding
public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works,
with the approval of the Secretary of Public Works and Communications, is authorized to promulgate rules
and regulations for the regulation and control of the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The rule
has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in
a multitude of cases, namely: ’The true distinction therefore is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion
as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter
no valid objection can be made.’ (Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.)
Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The Legislature may make decisions of executive
departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final
on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give
prominence to the ’necessity’ of the case."cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as
national roads by acts of the National Assembly or by executive orders of the President of the Philippines,
the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall
promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads
and streets. Such rules and regulations, with the approval of the President, may contain provisions controlling
or regulating the construction of buildings or other structures within a reasonable distance from along the
national roads. Such roads may be temporarily closed to any or all classes of traffic by the Director of Public
Works and his duly authorized representatives whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public convenience and interest, or for a specified period,
with the approval of the Secretary of Public Works and Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director of Public Works and the
Secretary of Public Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,
"to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close the m
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic makes such action
necessary or advisable in the public convenience and interest." The delegated power, if at all, therefore, is
not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances
upon which the application of said law is to be predicated. To promulgate rules and regulations on the use
of national roads and to determine when and how long a national road should be closed to traffic, in view of
the condition of the road or the traffic thereon and the requirements of public convenience and interest, is
an administrative function which cannot be directly discharged by the National Assembly. It must depend on
the discretion of some other government official to whom is confided the duty of determining whether the
proper occasion exists for executing the law. But it cannot be said that the exercise of such discretion is the
making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a law, because
it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the
public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future
and impossible to fully know." The proper distinction the court said was this: "The Legislature cannot
delegate its power to make the law; but it can make a law to delegate a power to determine some fact or
state of things upon which the law makes, or intends to make, its own action depend. To deny this would be
to stop the wheels of government. There are many things upon which wise and useful legislation must
depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and
determination outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12, 1939, and
in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, promulgated June 26, 1940,
this Court had occasion to observe that the principle of separation of powers has been made to adapt itself
to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle
of "subordinate legislation," not only in the United States and England but in practically all modern
governments. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of
separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of
greater powers by the legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations
calculated to promote public interest.
81

The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to
the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business
or trade and abridge the right to personal liberty and freedom of locomotion. Commonwealth Act No. 548
was passed by the National Assembly in the exercise of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe
transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of public convenience
and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation. The scope of police power keeps expanding as civilization advances. As was said in the case of
Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power is a
continuing one, and a business lawful today may in the future, because of the changed situation, the growth
of population or other causes, become a menace to the public health and welfare, and be required to yield
to the public good." And in People v. Pomar (46 Phil., 440), it was observed that "advancing civilization is
bringing within the police power of the state today things which were not thought of as being within such
power yesterday. The development of civilization, the rapidly increasing population, the growth of public
opinion, with an increasing desire on the part of the masses and of the government to look after and care
for the interests of the individuals of the state, have brought within the police power many questions for
regulation which formerly were not so considered."cralaw virtua1aw library

The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional
precept regarding the promotion of social justice to insure the well-being and economic security of all the
people. The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards
any given group. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the petitioner.
So ordered.
82
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC.,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
MENDOZA, J.:
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."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving
our people beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have
been geared towards the revitalization of the economy, the bludgeoning dearth in social services remains to
be a problem that concerns not only the poor, but every member of society. The government continues to
tread on a trying path to the realization of its very purpose, that is, the general welfare of the Filipino people
and the development of the country as a whole. The legislative branch, as the main facet of a representative
government, endeavors to enact laws and policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures and bring concrete and substantial solutions within
the reach of Juan dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert
governmental body that merely casts its watchful eyes on clashing stakeholders until it is called upon to
adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn
duty to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion
and contraception. As in every democratic society, diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media. From television debates2 to sticker campaigns,3
from rallies by socio-political activists to mass gatherings organized by members of the clergy4 - the clash
between the seemingly antithetical ideologies of the religious conservatives and progressive liberals has
caused a deep division in every level of the society. Despite calls to withhold support thereto, however,
Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act
of 2012 (RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society
came knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional
disobedience. Aware of the profound and lasting impact that its decision may produce, the Court now faces
the iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C.
Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor children;
and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal capacities as citizens and
on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in
their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned educational institution, and several others,13 in their
capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate
of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and
several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens and
taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia
is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several
others,25 in their capacities as citizens and taxpayers and on behalf of its associates who are members of the
Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their
capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several
others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities
as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law
on the following GROUNDS:
83
• The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its
declared policy against abortion, the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section
12, Article II of the Constitution which guarantees protection of both the life of the mother and the life of
the unborn from conception.35
• The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to one's
health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to
their beliefs is included in the constitutional mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment
and other forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and correct information on
reproductive health programs and service, although it is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39
provides that skilled health professionals who are public officers such as, but not limited to, Provincial, City,
or Municipal Health Officers, medical officers, medical specialists, rural health physicians, hospital staff
nurses, public health nurses, or rural health midwives, who are specifically charged with the duty to
implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should
not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the
RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest test" to justify
the regulation of the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the
RH Law subjects medical practitioners to involuntary servitude because, to be accredited under the
PhilHealth program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent
women, under threat of criminal prosecution, imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner
would effectively be forced to render reproductive health services since the lack of PhilHealth accreditation
would mean that the majority of the public would no longer be able to avail of the practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting reproductive health among the poor,
the RH Law seeks to introduce contraceptives that would effectively reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing
the penalty of imprisonment and/or fine for "any violation," it is vague because it does not define the type
of conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing
from them (the people) the right to manage their own affairs and to decide what kind of health facility they
shall be and what kind of services they shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his own preferred way of family planning. The
petitioners note that although exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to perform the service or
procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended
that the RH Law providing for mandatory reproductive health education intrudes upon their constitutional
right to raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure,
the RH Law forsakes any real dialogue between the spouses and impedes the right of spouses to mutually
decide on matters pertaining to the overall well-being of their family. In the same breath, it is also claimed
that the parents of a child who has suffered a miscarriage are deprived of parental authority to determine
whether their child should use contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is non-
abortifacient and to be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous
Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon the powers devolved to LGUs and the
ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention in
defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which
commented on the petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former
officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal
of the petitions for the principal reasons that 1] there is no actual case or controversy and, therefore, the
issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to question the RH Law;
and 3] the petitions are essentially petitions for declaratory relief over which the Court has no original
jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
84
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante
Order (SQAO), enjoining the effects and implementation of the assailed legislation for a period of one
hundred and twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine
and/or identify the pertinent issues raised by the parties and the sequence by which these issues were to be
discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were
heard on oral argument. On July 16, 2013, the SQAO was ordered extended until further orders of the
Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and,
at the same time posed several questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled
"An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were allowed, they could not be sold, dispensed or distributed
"unless such sale, dispensation and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided that
"no drug or chemical product or device capable of provoking abortion or preventing conception as classified
by the Food and Drug Administration shall be delivered or sold to any person without a proper prescription
by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized
that the population problem should be considered as the principal element for long-term economic
development, enacted measures that promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August 16, 1971, entitled "An Act
Establishing a National Policy on Population, Creating the Commission on Population and for Other Purposes.
" The law envisioned that "family planning will be made part of a broad educational program; safe and
effective means will be provided to couples desiring to space or limit family size; mortality and morbidity
rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.)
No. 79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad
educational program," provided "family planning services as a part of over-all health care," and made
"available all acceptable methods of contraception, except abortion, to all Filipino citizens desirous of
spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a
component of demographic management, to one centered on the promotion of public health, particularly,
reproductive health.69 Under that policy, the country gave priority to one's right to freely choose the method
of family planning to be adopted, in conformity with its adherence to the commitments made in the
International Conference on Population and Development.70 Thus, on August 14, 2009, the country enacted
R.A. No. 9710 or "The Magna Carta for Women, " which, among others, mandated the State to provide for
comprehensive health services and programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of the
country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and information to the full
range of modem family planning methods, and to ensure that its objective to provide for the peoples' right
to reproductive health be achieved. To make it more effective, the RH Law made it mandatory for health
providers to provide information on the full range of modem family planning methods, supplies and services,
and for schools to provide reproductive health education. To put teeth to it, the RH Law criminalizes certain
acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on
contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in
particular, argues that the government sponsored contraception program, the very essence of the RH Law,
violates the right to health of women and the sanctity of life, which the State is mandated to protect and
promote. Thus, ALFI prays that "the status quo ante - the situation prior to the passage of the RH Law - must
be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under
Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited
unless dispensed by a prescription duly licensed by a physician. What the Petitioners find deplorable and
repugnant under the RH Law is the role that the State and its agencies - the entire bureaucracy, from the
cabinet secretaries down to the barangay officials in the remotest areas of the country - is made to play in
the implementation of the contraception program to the fullest extent possible using taxpayers' money. The
State then will be the funder and provider of all forms of family planning methods and the implementer of
the program by ensuring the widespread dissemination of, and universal access to, a full range of family
planning methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and
refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
85

5] Declaratory Relief the wisdom of its co-equal branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government, which obtains not through
6] One Subject/One Title Rule express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere.81
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
1] Right to Life Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and (c) the
judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.84
2] Right to Health The Constitution has truly blocked out with deft strokes and in bold lines, the allotment of powers among
the three branches of government.85
3] Freedom of Religion and the Right to Free Speech
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which
4] The Family imposes upon the courts proper restraint, born of the nature of their functions and of their respect for the
other branches of government, in striking down the acts of the Executive or the Legislature as
5] Freedom of Expression and Academic Freedom unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86

6] Due Process It has also long been observed, however, that in times of social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In order to
7] Equal Protection address this, the Constitution impresses upon the Court to respect the acts performed by a co-equal branch
done within its sphere of competence and authority, but at the same time, allows it to cross the line of
8] Involuntary Servitude separation - but only at a very limited and specific point - to determine whether the acts of the executive
and the legislative branches are null because they were undertaken with grave abuse of discretion.88 Thus,
9] Delegation of Authority to the FDA while the Court may not pass upon questions of wisdom, justice or expediency of the RH Law, it may do so
where an attendant unconstitutionality or grave abuse of discretion results.89 The Court must demonstrate
10] Autonomy of Local Govemments/ARMM its unflinching commitment to protect those cherished rights and principles embodied in the Constitution.

DISCUSSION In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to the form of social legislation or otherwise. The reason is simple and goes back to the earlier point. The Court
resolve some procedural impediments. may pass upon the constitutionality of acts of the legislative and the executive branches, since its duty is not
to review their collective wisdom but, rather, to make sure that they have acted in consonance with their
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy. respective authorities and rights as mandated of them by the Constitution. If after said review, the Court
finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under
The Power of Judicial Review review.90 This is in line with Article VIII, Section 1 of the Constitution which expressly provides:

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the
legislative and political wisdom of Congress and respect the compromises made in the crafting of the RH
Law, it being "a product of a majoritarian democratic process"75 and "characterized by an inordinate amount
of transparency."76 The OSG posits that the authority of the Court to review social legislation like the RH
Law by certiorari is "weak," since the Constitution vests the discretion to implement the constitutional
policies and positive norms with the political departments, in particular, with Congress.77 It further asserts
that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the remedies of
certiorari and prohibition utilized by the petitioners are improper to assail the validity of the acts of the
legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed
law has yet to be enforced and applied to the petitioners, and that the government has yet to distribute
reproductive health devices that are abortive. It claims that the RH Law cannot be challenged "on its face"
as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its exercise of judicial power and accord due respect to
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as there is no other plain, speedy or adequate remedy
in the ordinary course of law. This ruling was later on applied in Macalintal v. COMELEC,92 Aldaba v.
COMELEC,93 Magallona v. Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
86
to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential
for the maintenance and enforcement of the separation of powers and the balancing of powers among the
three great departments of government through the definition and maintenance of the boundaries of
authority and control between them. To him, judicial review is the chief, indeed the only, medium of
participation - or instrument of intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule
on just any and every claim of constitutional violation. Jurisprudence is replete with the rule that the power
of judicial review is limited by four exacting requisites, viz : (a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy
because the RH Law has yet to be implemented.97 They claim that the questions raised by the petitions are
not yet concrete and ripe for adjudication since no one has been charged with violating any of its provisions
and that there is no showing that any of the petitioners' rights has been adversely affected by its operation.98
In short, it is contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable-definite and concrete,
touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must
show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or issue. There ought to be an
actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question
is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then
been accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct
injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was
put in question, it was argued that the Court has no authority to pass upon the issues raised as there was yet
no concrete act performed that could possibly violate the petitioners' and the intervenors' rights. Citing
precedents, the Court ruled that the fact of the law or act in question being not yet effective does not negate
ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for
judicial determination. Considering that the RH Law and its implementing rules have already taken effect and
that budgetary measures to carry out the law have already been passed, it is evident that the subject
petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the
Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers
are in danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with forfeiture of retirement and other
benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the
RH Law cannot be challenged "on its face" as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is
one that is launched to assail the validity of statutes concerning not only protected speech, but also all other
rights in the First Amendment.106 These include religious freedom, freedom of the press, and the right of
the people to peaceably assemble, and to petition the Government for a redress of grievances.107 After all,
the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component
rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While this Court has withheld the application of facial challenges to strictly
penal statues,108 it has expanded its scope to cover statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights.109 The underlying reason for this modification is
simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the
framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human
rights to life, speech and religion and other fundamental rights mentioned above have been violated by the
assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine
if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that
there exist no actual case or controversy, would diminish this Court as a reactive branch of government,
acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that
the "as applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced
and applied against them,111 and the government has yet to distribute reproductive health devices that are
abortive.112
87
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status
as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party
has sustained or will sustain direct injury as a result of the challenged governmental act.113 It requires a
personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute grounded on a violation of the rights of third persons not
before the court. This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence,
can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental importance, of overreaching significance
to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance
where serious constitutional questions are involved, the standing requirement may be relaxed and a suit
may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders although they had only an indirect and general interest
shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied
challenge, still, the Court has time and again acted liberally on the locus s tandi requirement. It has accorded
certain individuals standing to sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is invoked. The rule on locus
standi is, after all, a procedural technicality which the Court has, on more than one occasion, waived or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators,
to sue in the public interest, albeit they may not have been directly injured by the operation of a law or any
other government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the technical defects
and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have
potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence,
their proper and just determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and
promote the administration of justice. Their strict and rigid application, which would result in technicalities
that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis
supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench
and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects
the constitutional provisions on the right to life and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues of contraception and reproductive
health have already caused deep division among a broad spectrum of society, the Court entertains no doubt
that the petitions raise issues of transcendental importance warranting immediate court adjudication. More
importantly, considering that it is the right to life of the mother and the unborn which is primarily at issue,
the Court need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her child is
at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over
which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for prohibition under Rule 65, over
which it has original jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs,
the Court may consider them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ),
Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them, being one for
reproductive health with responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population
control measure. The corpus of the RH Law is geared towards the reduction of the country's population.
While it claims to save lives and keep our women and children healthy, it also promotes pregnancy-
preventing products. As stated earlier, the RH Law emphasizes the need to provide Filipinos, especially the
poor and the marginalized, with access to information on the full range of modem family planning products
and methods. These family planning methods, natural or modem, however, are clearly geared towards the
prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the
country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large
portion of the law, however, covers the dissemination of information and provisions on access to medically-
safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods,
devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the
entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the provisions that refer to
contraception or are related to it and the RH Law loses its very foundation.127 As earlier explained, "the
other positive provisions such as skilled birth attendance, maternal care including pre-and post-natal
services, prevention and management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v.
The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
88
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of
the enactment language of such precision as to mirror, fully index or catalogue all the contents and the
minute details therein. The rule is sufficiently complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect, and where, as here, the persons interested are informed
of the nature, scope and consequences of the proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical construction of the rule "so as not to cripple or impede
legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the population
growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to sustainable human development,
the right to health which includes reproductive health, the right to education and information, and the right
to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that
the average person reading it would not be informed of the purpose of the enactment or put on inquiry as
to its contents, or which is misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or indication of the real subject or
scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to
the attainment of the goal of achieving "sustainable human development" as stated under its terms, the
Court finds no reason to believe that Congress intentionally sought to deceive the public as to the contents
of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child under
Section 12, Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives
effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law
considers contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb
as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford protection to the fertilized
ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning
products and supplies, medical research shows that contraceptives use results in abortion as they operate
to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State
sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA)
to certify that the product or supply is not to be used as an abortifacient, the assailed legislation effectively
confirms that abortifacients are not prohibited. Also considering that the FDA is not the agency that will
actually supervise or administer the use of these products and supplies to prospective patients, there is no
way it can truthfully make a certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was
simply the prohibition of abortion. They contend that the RH Law does not violate the Constitution since the
said law emphasizes that only "non-abortifacient" reproductive health care services, methods, devices
products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to various studies
and consultations with the World Health Organization (WHO) and other experts in the medical field, it is
asserted that the Court afford deference and respect to such a determination and pass judgment only when
a particular drug or device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life begins from the implantation of the fertilized
ovum. Consequently, he argues that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore,
not a creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any
authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of
recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive
drugs and devices which prevent fertilization,138 to the promotion of male vasectomy and tubal ligation,139
and the ratification of numerous international agreements, the country has long recognized the need to
promote population control through the use of contraceptives in order to achieve long-term economic
development. Through the years, however, the use of contraceptives and other family planning methods
evolved from being a component of demographic management, to one centered on the promotion of public
health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act
of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
89
Notwithstanding this paradigm shift, the Philippine national population program has always been grounded
two cornerstone principles: "principle of no-abortion" and the "principle of non-coercion."141 As will be
discussed later, these principles are not merely grounded on administrative policy, but rather, originates
from the constitutional protection expressly provided to afford protection to life and guarantee religious
freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific
and medical issue that should not be decided, at this stage, without proper hearing and evidence. During the
deliberation, however, it was agreed upon that the individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12
which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because
before conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is
mute as to any proscription prior to conception or when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at implantation. Hence, the issue of
when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the
female ovum by the male sperm.142 On the other side of the spectrum are those who assert that conception
refers to the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain
and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. It is a well-settled principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical terms are employed. As much as
possible, the words of the Constitution should be understood in the sense they have in common use. What
it says according to the text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean what they say. Verba
legis non est recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the people, in whose consciousness
it should ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described
and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a
viable zygote; the fertilization that results in a new entity capable of developing into a being like its
parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum
by the male spermatozoon resulting in human life capable of survival and maturation under normal
conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could
die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of the mother. If the unborn
already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.
[Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State
"has respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in
preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby
or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the
moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that
there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First
of all, like all living organisms, it takes in nutrients which it processes by itself. It begins doing this upon
90
fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies itself at a
geometric rate in the continuous process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception,
the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine
with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found
only - and I repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both
alive and human, then, as night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the
simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was
discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own
admission, he would leave it to Congress to define when life begins. So, Congress can define life to begin
from six months after fertilization; and that would really be very, very, dangerous. It is now determined by
science that life begins from the moment of conception. There can be no doubt about it. So we should not
give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the
questions I was going to raise during the period of interpellations but it has been expressed already. The
provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives
that we know today are abortifacient or not because it is a fact that some of the so-called contraceptives
deter the rooting of the ovum in the uterus. If fertilization has already occurred, the next process is for the
fertilized ovum to travel towards the uterus and to take root. What happens with some contraceptives is
that they stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we take the provision
as it is proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore,
would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that
the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum. It is
also apparent is that the Framers of the Constitution intended that to prohibit Congress from enacting
measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives
for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination of whether a contraceptive
device is an abortifacient is a question of fact which should be left to the courts to decide on based on
established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an
abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm
and the female ovum, and those that similarly take action prior to fertilization should be deemed non-
abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like
not only to protect the life of the unborn, but also the lives of the millions of people in the world by fighting
for a nuclear-free world. I would just like to be assured of the legal and pragmatic implications of the term
"protection of the life of the unborn from the moment of conception." I raised some of these implications
this afternoon when I interjected in the interpellation of Commissioner Regalado. I would like to ask that
question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we
are also actually saying "no," not "maybe," to certain contraceptives which are already being encouraged at
this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet.
That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-
uterine device which actually stops the egg which has already been fertilized from taking route to the uterus.
So if we say "from the moment of conception," what really occurs is that some of these contraceptives will
have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
91

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and
during the oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a
classified as abortifacients.157 spermatozoon enters an ovum and forms a viable zygote."159

Atty. Noche: It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo
develops."160
Before the union of the eggs, egg and the sperm, there is no life yet.
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in the
Justice Bersamin: Philippines, also concludes that human life (human person) begins at the moment of fertilization with the
union of the egg and the sperm resulting in the formation of a new individual, with a unique genetic
There is no life. composition that dictates all developmental stages that ensue.

Atty. Noche: Similarly, recent medical research on the matter also reveals that: "Human development begins after the
union of male and female gametes or germ cells during a process known as fertilization (conception).
So, there is no life to be protected. Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary
oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and
Justice Bersamin: the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large
diploid cell that is the beginning, or primordium, of a human being."162
To be protected.
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is
Atty. Noche: a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new,
genetically distinct human organism is thereby formed.... The combination of 23 chromosomes present in
Under Section 12, yes. each pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is restored and the
embryonic genome is formed. The embryo now exists as a genetic unity."
Justice Bersamin:
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive
So you have no objection to condoms? Health Bill (Responsible Parenthood Bill)" and therein concluded that:

Atty. Noche: CONCLUSION

Not under Section 12, Article II. The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong
position that fertilization is sacred because it is at this stage that conception, and thus human life, begins.
Justice Bersamin: Human lives are sacred from the moment of conception, and that destroying those new lives is never licit,
no matter what the purported good outcome would be. In terms of biology and human embryology, a human
Even if there is already information that condoms sometimes have porosity? being begins immediately at fertilization and after that, there is no point along the continuous line of human
embryogenesis where only a "potential" human being can be posited. Any philosophical, legal, or political
Atty. Noche: conclusion cannot escape this objective scientific fact.

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new
12, Article II, Your Honor, yes. human being commences at a scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any specific ethical, moral, political, or
Justice Bersamin: religious view of human life or of human embryos.164

Alright. Conclusion: The Moment of Conception is Reckoned from

Fertilization
Atty. Noche:
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
And it's not, I have to admit it's not an abortifacient, Your Honor.158 importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is that a
zygote is a human organism and that the life of a new human being commences at a scientifically well-defined
Medical Meaning moment of conception, that is, upon fertilization.
92
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins
at implantation.165 According to him, "fertilization and conception are two distinct and successive stages in
the reproductive process. They are not identical and synonymous."166 Citing a letter of the WHO, he wrote
that "medical authorities confirm that the implantation of the fertilized ovum is the commencement of
conception and it is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not
pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate
object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation has been
conceptualized only for convenience by those who had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that
would prevent the implantation of the fetus at the uterine wall. It would be provocative and further
aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn
from conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear
that even the Court cannot interpret it otherwise. This intent of the Framers was captured in the record of
the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal
proponent of the protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any
pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While
the Court has opted not to make any determination, at this stage, when life begins, it finds that the RH Law
itself clearly mandates that protection be afforded from the moment of fertilization. As pointed out by Justice
Carpio, the RH Law is replete with provisions that embody the policy of the law to protect to the fertilized
ovum and that it should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies
that contribute to reproductive health and well-being by addressing reproductive health-related problems.
It also includes sexual health, the purpose of which is the enhancement of life and personal relations. The
elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion and violence; to have the information and means
to do so; and to attain the highest standard of sexual health and reproductive health: Provided, however,
That reproductive health rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or
issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or is
inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section
4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb
upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization.
By using the word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also
those that induce abortion and those that induce the destruction of a fetus inside the mother's womb. Thus,
an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the
FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already has life and that the State has a bounden duty to
protect it. The conclusion becomes clear because the RH Law, first, prohibits any drug or device that induces
abortion (first kind), which, as discussed exhaustively above, refers to that which induces the killing or the
destruction of the fertilized ovum, and, second, prohibits any drug or device the fertilized ovum to reach and
be implanted in the mother's womb (third kind).
93
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted
in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only
begins only at implantation, as Hon. Lagman suggests. It also does not declare either that protection will only
be given upon implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a
need to protect the fertilized ovum which already has life, and two, the fertilized ovum must be protected
the moment it becomes existent - all the way until it reaches and implants in the mother's womb. After all,
if life is only recognized and afforded protection from the moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law
does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at
implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It started earlier. And as defined by the RH Law,
any drug or device that induces abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply
included or to be included in the EDL must have a certification from the FDA that said product and supply is
made available on the condition that it is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device will not all be used as an abortifacient,
since the agency cannot be present in every instance when the contraceptive product or supply will be
used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives,
however, the Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and
mean that "any product or supply included or to be included in the EDL must have a certification from the
FDA that said product and supply is made available on the condition that it cannot be used as abortifacient."
Such a construction is consistent with the proviso under the second paragraph of the same section that
provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or
equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when
they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb
upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method,
device, or health product, whether natural or artificial, that prevents pregnancy but does not primarily
destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses
of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only
those that primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention
of the fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out,
with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down for
being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra
vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger
that the insertion of the qualifier "primarily" will pave the way for the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution. With such qualification in the RH-IRR, it appears to insinuate that a contraceptive will only be
considered as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the prevention of
the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which
are actually abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act
as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and
its declared policy against abortion, the undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do not have the primary action of causing
abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb, but also those that do not have the secondary action of acting
the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws
should be construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules
must be consistent with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and
G) of the RH-IRR should be declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and
prohibit only those contraceptives that have the primary effect of being an abortive would effectively "open
the floodgates to the approval of contraceptives which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
94
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the National
Drug Formulary and the inclusion of the same in the regular purchase of essential medicines and supplies of
all national hospitals.176 Citing various studies on the matter, the petitioners posit that the risk of developing
breast and cervical cancer is greatly increased in women who use oral contraceptives as compared to women
who never use them. They point out that the risk is decreased when the use of contraceptives is discontinued.
Further, it is contended that the use of combined oral contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177 Given the definition of "reproductive health" and
"sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a
mere statement of the administration's principle and policy. Even if it were self-executory, the OSG posits
that medical authorities refute the claim that contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete
with provisions protecting and promoting the right to health. Section 15, Article II of the Constitution
provides:
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people,
viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which
shall endeavor to make essential goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's health
needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-
development, and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous
products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions
clearly express the contrary, the provisions of the Constitution should be considered self-executory. There is
no need for legislation to implement these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183
it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would
have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic.
That is why the prevailing view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . .
Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall
be effective. These provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and
R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are dispensed by a
prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A.
No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements are still in
to be complied with. Thus, the Court agrees with the observation of respondent Lagman that the effectivity
of the RH Law will not lead to the unmitigated proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require the prescription of a licensed physician.
With R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that only contraceptives
that are safe are made available to the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used
without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy
and Setting Standards of Pharmaceutical Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly
governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise
distribute whether for or without consideration, any contraceptive drug or device, unless such sale,
dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the
prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the
purpose of preventing fertilization of the female ovum: and
95
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a
fine of not more than five hundred pesos or an imprisonment of not less than six months or more than one
year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of
whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or hospital pharmacy, duly
established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the
pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives,
whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the Original. Underlining
supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to
LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate
with all appropriate local government bodies to plan and implement this procurement and distribution
program. The supply and budget allotments shall be based on, among others, the current levels and
projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent
with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of
R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will procure shall be from a
duly licensed drug store or pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately done. The public health must be protected by
all possible means. As pointed out by Justice De Castro, a heavy responsibility and burden are assumed by
the government in supplying contraceptive drugs and devices, for it may be held accountable for any injury,
illness or loss of life resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant
to the RH Law. It behooves the Court to await its determination which drugs or devices are declared by the
FDA as safe, it being the agency tasked to ensure that food and medicines available to the public are safe for
public consumption. Consequently, the Court finds that, at this point, the attack on the RH Law on this ground
is premature. Indeed, the various kinds of contraceptives must first be measured up to the constitutional
yardstick as expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and
intra-uterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their
inclusion by the National Drug Formulary in the EDL by using the mandatory "shall" is to be construed as
operative only after they have been tested, evaluated, and approved by the FDA. The FDA, not Congress, has
the expertise to determine whether a particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the requirements for the inclusion or
removal of a particular family planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine
devices, injectables, and other safe, legal, non-abortifacient and effective family planning products and
supplies by the National Drug Formulary in the EDL is not mandatory. There must first be a determination by
the FDA that they are in fact safe, legal, non-abortifacient and effective family planning products and
supplies. There can be no predetermination by Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their religious education and background, sincerely believe
that contraceptives, whether abortifacient or not, are evil. Some of these are medical practitioners who
essentially claim that their beliefs prohibit not only the use of contraceptives but also the willing participation
and cooperation in all things dealing with contraceptive use. Petitioner PAX explained that "contraception is
gravely opposed to marital chastity, it is contrary to the good of the transmission of life, and to the reciprocal
self-giving of the spouses; it harms true love and denies the sovereign rule of God in the transmission of
Human life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure
of their taxes on contraceptives violates the guarantee of religious freedom since contraceptives contravene
their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional guarantee is nonetheless violated because the law
also imposes upon the conscientious objector the duty to refer the patient seeking reproductive health
services to another medical practitioner who would be able to provide for the patient's needs. For the
petitioners, this amounts to requiring the conscientious objector to cooperate with the very thing he refuses
to do without violating his/her religious beliefs.190
96
They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is
unduly limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a
patient seeking reproductive health services and information - no escape is afforded the conscientious
objector in Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive health procedures. They claim
that the right of other individuals to conscientiously object, such as: a) those working in public health facilities
referred to in Section 7; b) public officers involved in the implementation of the law referred to in Section
23(b ); and c) teachers in public schools referred to in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer
the matter to another health care service provider is still considered a compulsion on those objecting
healthcare service providers. They add that compelling them to do the act against their will violates the
Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they tend to disregard
the religion of Filipinos. Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents encroach upon the religious
freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking
reproductive health care services to another provider infringes on one's freedom of religion as it forces the
objector to become an unwilling participant in the commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by the State, the acts prohibited by the RH Law are
passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat that endangers state interests. It does not explain
how the rights of the people (to equality, non-discrimination of rights, sustainable human development,
health, education, information, choice and to make decisions according to religious convictions, ethics,
cultural beliefs and the demands of responsible parenthood) are being threatened or are not being met as
to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family
planning and responsible parenthood seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH Law even if it contravenes their
religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or imprisonment in case of
non-compliance with its provisions, the petitioners claim that the RH Law forcing them to provide, support
and facilitate access and information to contraception against their beliefs must be struck down as it runs
afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type
of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief.196
They point out that the RH Law only seeks to serve the public interest by providing accessible, effective and
quality reproductive health services to ensure maternal and child health, in line with the State's duty to bring
to reality the social justice health guarantees of the Constitution,197 and that what the law only prohibits
are those acts or practices, which deprive others of their right to reproductive health.198 They assert that
the assailed law only seeks to guarantee informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning should be allowed, the petitioners
are effectively going against the constitutional right to religious freedom, the same right they invoked to
assail the constitutionality of the RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the Catholic Church's sanctioned
natural family planning methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the constitutional
guarantee of religious freedom, it being a carefully balanced compromise between the interests of the
religious objector, on one hand, who is allowed to keep silent but is required to refer -and that of the citizen
who needs access to information and who has the right to expect that the health care professional in front
of her will act professionally. For the respondents, the concession given by the State under Section 7 and
23(a)(3) is sufficient accommodation to the right to freely exercise one's religion without unnecessarily
infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in
duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who object
to any information received on account of their attendance in the required seminars are not compelled to
accept information given to them. They are completely free to reject any information they do not agree with
and retain the freedom to decide on matters of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only
method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter,
they highlight the changing stand of the Catholic Church on contraception throughout the years and note
the general acceptance of the benefits of contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of
diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in
law and in practice, has allowed these various religious, cultural, social and racial groups to thrive in a single
society together. It has embraced minority groups and is tolerant towards all - the religious people of
different sects and the non-believers. The undisputed fact is that our people generally believe in a deity,
whatever they conceived Him to be, and to whom they call for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane
society, and establish a Government that shall embody our ideals and aspirations, promote the common
good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality,
and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature
and consciousness as a people, shaped by tradition and historical experience. As this is embodied in the
preamble, it means that the State recognizes with respect the influence of religion in so far as it instills into
the mind the purest principles of morality.205 Moreover, in recognition of the contributions of religion to
society, the 1935, 1973 and 1987 constitutions contain benevolent and accommodating provisions towards
religions such as tax exemption of church property, salary of religious officers in government institutions,
and optional religious instructions in public schools.
97
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the
affairs of the church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in
Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect.1âwphi1 Generally, the
State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate
upon it. It cannot favor one religion and discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the citizenry. It cannot demand that the nation
follow its beliefs, even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers to a
temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State
from the pursuit of its secular objectives, the Constitution lays down the following mandate in Article III,
Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:
Section. 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.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of
any priest, preacher, minister, 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.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion
as against other religions. It mandates a strict neutrality in affairs among religious groups."206 Essentially, it
prohibits the establishment of a state religion and the use of public resources for the support or prohibition
of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly
interfering with the outside manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free
exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion
clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good. Any legislation whose effect or purpose
is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S.
398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general
law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420,
444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have
a single goal-to promote freedom of individual religious beliefs and practices. In simplest terms, the free
exercise clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the establishment clause prohibits government from inhibiting religious belief with rewards
for religious beliefs and practices. In other words, the two religion clauses were intended to deny government
the power to use either the carrot or the stick to influence individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious
freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first
part is absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is
the freedom of belief, including religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the
exercise of said belief, there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be enjoyed only
with proper regard to the rights of others. It is "subject to regulation where the belief is translated into
external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor)214 where
it was stated "that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution."215 In the same case, it was further explained
that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation
of religion may be allowed, not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. "The purpose of accommodation is to
remove a burden on, or facilitate the exercise of, a person's or institution's religion."216 "What is sought
under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its 'burdensome effect,' whether by the legislature or the courts."217
98
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is proper.218
Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the "immediate and grave
danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano , German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case of A
merican Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test . Victoriano was the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where
the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled,
is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects
on the state's interests: some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish
a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental
right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.
In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be
the guide. The "compelling state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives
or one's participation in the support of modem reproductive health measures is moral from a religious
standpoint or whether the same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and
rule of a church ... are unquestionably ecclesiastical matters which are outside the province of the civil
courts."220 The jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bench should be understood only in this realm where it has
authority. Stated otherwise, while the Court stands without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to determine whether the RH Law contravenes the
guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his religion or
defy his religious convictions against his free will. Provisions in the RH Law respecting religious freedom are
the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in
turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe, legal,
non-abortifacient, and effective in accordance with scientific and evidence-based medical research standards
such as those registered and approved by the FDA for the poor and marginalized as identified through the
NHTS-PR and other government measures of identifying marginalization: Provided, That the State shall also
provide funding support to promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious convictions. [Section 3(e),
Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of children
they desire with due consideration to the health, particularly of women, and the resources available and
affordable to them and in accordance with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil
society, faith-based organizations, the religious sector and communities is crucial to ensure that reproductive
health and population and development policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations
of the family and children. It is likewise a shared responsibility between parents to determine and achieve
the desired number of children, spacing and timing of their children according to their own family life
99
aspirations, taking into account psychological preparedness, health status, sociocultural and economic
concerns consistent with their religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the
principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion, it also
limits what religious sects can or cannot do with the government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor can they not cause the government to restrict
other groups. To do so, in simple terms, would cause the State to adhere to a particular religion and, thus,
establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay his taxes
simply because it will cloud his conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse
religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with
respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health care and services under the law to another
accessible healthcare provider despite their conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or practice,
the compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality
in Escritor, finds application. In this case, the conscientious objector's claim to religious freedom would
warrant an exemption from obligations under the RH Law, unless the government succeeds in demonstrating
a more compelling state interest in the accomplishment of an important secular objective. Necessarily so,
the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been
burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One
side coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The scenario is an illustration of the
predicament of medical practitioners whose religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking
information on modem reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs. As Commissioner
Joaquin A. Bernas (Commissioner Bernas) has written, "at the basis of the free exercise clause is the respect
for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise
because it makes pro-life health providers complicit in the performance of an act that they find morally
repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may not
be the principal, but he is equally guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being
an externalization of one's thought and conscience. This in turn includes the right to be silent. With the
constitutional guarantee of religious freedom follows the protection that should be afforded to individuals
in communicating their beliefs to others as well as the protection for simply being silent. The Bill of Rights
guarantees the liberty of the individual to utter what is in his mind and the liberty not to utter what is not in
his mind.223 While the RH Law seeks to provide freedom of choice through informed consent, freedom of
choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the
interest of the State, on the other, to provide access and information on reproductive health products,
services, procedures and methods to enable the people to determine the timing, number and spacing of the
birth of their children, the Court is of the strong view that the religious freedom of health providers, whether
public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from
compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief
and conviction, it would be violative of "the principle of non-coercion" enshrined in the constitutional right
to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan
and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be
conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be required to
delegate, supervise or support staff on their labor ward who were involved in abortions.226 The Inner House
stated "that if 'participation' were defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they could not
be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by
a religious group and health care service providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3),
the Court deems that it must be struck down for being violative of the freedom of religion. The same applies
to Section 23(a)(l) and (a)(2) in relation to Section 24, considering that in the dissemination of information
regarding programs and services and in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it was
stressed:
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
100
The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance.
Without set consequences for either an active violation or mere inaction, a law tends to be toothless and
ineffectual. Nonetheless, when what is bartered for an effective implementation of a law is a constitutionally-
protected right the Court firmly chooses to stamp its disapproval. The punishment of a healthcare service
provider, who fails and/or refuses to refer a patient to another, or who declines to perform reproductive
health procedure on a patient because incompatible religious beliefs, is a clear inhibition of a constitutional
guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered
as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should
be equally protective of the religious belief of public health officers. There is no perceptible distinction why
they should not be considered exempt from the mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical practitioners without distinction whether they
belong to the public or private sector. After all, the freedom to believe is intrinsic in every individual and the
protective robe that guarantees its free exercise is not taken off even if one acquires employment in the
government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills, whether in the secular or religious sphere, to give
expression to its beliefs by oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in such concept then are freedom of
religion, freedom of speech, of the press, assembly and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there
is any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law
is replete with provisions in upholding the freedom of religion and respecting religious convictions. Earlier,
you affirmed this with qualifications. Now, you have read, I presumed you have read the IRR-Implementing
Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the
nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " ....
skilled health professionals such as provincial, city or municipal health officers, chief of hospitals, head
nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the
duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree with this?
Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors
in their choice of services to render; and 2] discharge the burden of proof that the obligatory character of
the law is the least intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously
silent in the establishment of a more compelling state interest that would rationalize the curbing of a
conscientious objector's right not to adhere to an action contrary to his religious convictions. During the oral
arguments, the OSG maintained the same silence and evasion. The Transcripts of the Stenographic Notes
disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing
this duty to refer to a conscientious objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
101
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an
ordinary health legislation involving professionals. This is not a free speech matter or a pure free exercise
matter. This is a regulation by the State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to
the security and welfare of the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not
to act according to what one believes. And this freedom is violated when one is compelled to act against
one's belief or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth
of their children refers to a future event that is contingent on whether or not the mother decides to adopt
or use the information, product, method or supply given to her or whether she even decides to become
pregnant at all. On the other hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses, endangering
paramount interests" which could limit or override a person's fundamental right to religious freedom. Also,
the respondents have not presented any government effort exerted to show that the means it takes to
achieve its legitimate state objective is the least intrusive means.234 Other than the assertion that the act
of referring would only be momentary, considering that the act of referral by a conscientious objector is the
very action being contested as violative of religious freedom, it behooves the respondents to demonstrate
that no other means can be undertaken by the State to achieve its objective without violating the rights of
the conscientious objector. The health concerns of women may still be addressed by other practitioners who
may perform reproductive health-related procedures with open willingness and motivation. Suffice it to say,
a person who is forced to perform an act in utter reluctance deserves the protection of the Court as the last
vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health
is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A.
No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta
of Women," amply cater to the needs of women in relation to health services and programs. The pertinent
provision of Magna Carta on comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times,
provide for a comprehensive, culture-sensitive, and gender-responsive health services and programs
covering all stages of a woman's life cycle and which addresses the major causes of women's mortality and
morbidity: Provided, That in the provision for comprehensive health services, due respect shall be accorded
to women's religious convictions, the rights of the spouses to found a family in accordance with their religious
convictions, and the demands of responsible parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without prejudice to the
primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually transmitted diseases,
HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors shall be
provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal
interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and medical
standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In addition,
healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in the
prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information and education on all the above-stated aspects of
women's health in government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the development of
moral character and the right of children to be brought up in an atmosphere of morality and rectitude for
the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was
"Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x
x."235 He, however, failed to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal
mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that time.
Despite such revelation, the proponents still insist that such number of maternal deaths constitute a
compelling state interest.
102
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino
women, they could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs
in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render reproductive health care procedures if doing it
would contravene their religious beliefs, an exception must be made in life-threatening cases that require
the performance of emergency procedures. In these situations, the right to life of the mother should be given
preference, considering that a referral by a medical practitioner would amount to a denial of service,
resulting to unnecessarily placing the life of a mother in grave danger. Thus, during the oral arguments, Atty.
Liban, representing CFC, manifested: "the forced referral clause that we are objecting on grounds of violation
of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged
always to try to save both lives. If, however, it is impossible, the resulting death to one should not be
deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the mother
of the child is never justified to bring about a "good" effect. In a conflict situation between the life of the
child and the life of the mother, the doctor is morally obliged always to try to save both lives. However, he
can act in favor of one (not necessarily the mother) when it is medically impossible to save both, provided
that no direct harm is intended to the other. If the above principles are observed, the loss of the child's life
or the mother's life is not intentional and, therefore, unavoidable. Hence, the doctor would not be guilty of
abortion or murder. The mother is never pitted against the child because both their lives are equally
valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may
be resorted to even if is against the religious sentiments of the medical practitioner. As quoted above,
whatever burden imposed upon a medical practitioner in this case would have been more than justified
considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license,
the Court finds the same to be a reasonable exercise of police power by the government. A cursory reading
of the assailed provision bares that the religious freedom of the petitioners is not at all violated. All the law
requires is for would-be spouses to attend a seminar on parenthood, family planning breastfeeding and
infant nutrition. It does not even mandate the type of family planning methods to be included in the seminar,
whether they be natural or artificial. As correctly noted by the OSG, those who receive any information during
their attendance in the required seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain the freedom to decide on
matters of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the
Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters
animosity in the family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution.
In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected
by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and
programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which
tend to wreck the family as a solid social institution. It bars the husband and/or the father from participating
in the decision making process regarding their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is already a parent or had suffered a
miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on
the ground of lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the
one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by
their very nature, should require mutual consent and decision between the husband and the wife as they
affect issues intimately related to the founding of a family. Section 3, Art. XV of the Constitution espouses
that the State shall defend the "right of the spouses to found a family." One person cannot found a family.
103
The right, therefore, is shared by both spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to
the spouse who would undergo a procedure, and barring the other spouse from participating in the decision
would drive a wedge between the husband and wife, possibly result in bitter animosity, and endanger the
marriage and the family, all for the sake of reducing the population. This would be a marked departure from
the policy of the State to protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the couple,
not just one of them. Any decision they would reach would affect their future as a family because the size of
the family or the number of their children significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as one cohesive unit as they chart their own
destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State, which has not shown
any compelling interest, the State should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna
Carta for Women," provides that women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared responsibility between parents. Section
23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional mandate to protect and
strengthen the family by giving to only one spouse the absolute authority to decide whether to undergo
reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In our
jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded recognition independently
of its identification with liberty; in itself, it is fully deserving of constitutional protection."244 Marje adopted
the ruling of the US Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our
school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to
the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal
offense on the ground of its amounting to an unconstitutional invasion of the right to privacy of married
persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing
a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or has
had a miscarriage, the parents are excluded from the decision making process of the minor with regard to
family planning. Even if she is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her
own parents. The State cannot replace her natural mother and father when it comes to providing her needs
and comfort. To say that their consent is no longer relevant is clearly anti-family. It does not promote unity
in the family. It is an affront to the constitutional mandate to protect and strengthen the family as an
inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and the development of moral character
shall receive the support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion
that the right of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child
or the right of the spouses to mutually decide on matters which very well affect the very purpose of marriage,
that is, the establishment of conjugal and family life, would result in the violation of one's privacy with
respect to his family. It would be dismissive of the unique and strongly-held Filipino tradition of maintaining
close family ties and violative of the recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and custody
of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling
state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph of
Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made.
There must be a differentiation between access to information about family planning services, on one hand,
and access to the reproductive health procedures and modern family planning methods themselves, on the
other. Insofar as access to information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the second paragraph of Section
7 that would enable her to take proper care of her own body and that of her unborn child. After all, Section
12, Article II of the Constitution mandates the State to protect both the life of the mother as that of the
unborn child. Considering that information to enable a person to make informed decisions is essential in the
protection and maintenance of ones' health, access to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents might be deprived of their parental control is
unfounded because they are not prohibited to exercise parental guidance and control over their minor child
and assist her in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
104
As in the case of the conscientious objector, an exception must be made in life-threatening cases that require
the performance of emergency procedures. In such cases, the life of the minor who has already suffered a
miscarriage and that of the spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care urgently needed to preserve the
primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By effectively
limiting the requirement of parental consent to "only in elective surgical procedures," it denies the parents
their right of parental authority in cases where what is involved are "non-surgical procedures." Save for the
two exceptions discussed above, and in the case of an abused child as provided in the first sentence of Section
23(a)(2)(ii), the parents should not be deprived of their constitutional right of parental authority. To deny
them of this right would be an affront to the constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-
and Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment
violates the principle of academic freedom . According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education even if they believe that the same is not
suitable to be taught to their students.250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the prevalence of contraceptives has led to
an increase of out-of-wedlock births; divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion of promiscuity among the
youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature
because the Department of Education, Culture and Sports has yet to formulate a curriculum on age-
appropriate reproductive health education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will contradict the religious beliefs
of the petitioners and validate their apprehensions. Thus, considering the premature nature of this particular
issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and development of moral character shall
receive the support of the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the invaluable role of parents in preparing the youth to become
productive members of society. Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be "primary," that is, that the right of parents
in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of
the youth. Indeed, the Constitution makes mention of the importance of developing the youth and their
important role in nation building.253 Considering that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the development of knowledge and skills in
self-protection against discrimination; sexual abuse and violence against women and children and other
forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents;
women's rights and children's rights; responsible teenage behavior; gender and development; and
responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself
provides for the teaching of responsible teenage behavior, gender sensitivity and physical and emotional
changes among adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of their
children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall
be developed in conjunction with parent-teacher-community associations, school officials and other interest
groups, it could very well be said that it will be in line with the religious beliefs of the petitioners. By imposing
such a condition, it becomes apparent that the petitioners' contention that Section 14 violates Article XV,
Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation in the
reproductive health education program provided under Section 14 of the RH Law on the ground that the
same violates their religious beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of
the Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among
those who may be held punishable but does not define who is a "private health care service provider." They
argue that confusion further results since Section 7 only makes reference to a "private health care
institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It is
unclear, however, if these institutions are also exempt from giving reproductive health information under
Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.255 Moreover, in
determining whether the words used in a statute are vague, words must not only be taken in accordance
with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of
the statute must be interpreted with reference to the context, that is, every part of it must be construed
together with the other parts and kept subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and operation of facilities for health promotion,
disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury,
disability or deformity, or in need of obstetrical or other medical and nursing care; (2) public health care
professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone training programs under
any accredited government and NGO and who voluntarily renders primarily health care services in the
community after having been accredited to function as such by the local health board in accordance with the
guidelines promulgated by the Department of Health (DOH) .
105
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health
care service provider," should not be a cause of confusion for the obvious reason that they are used
synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to render
reproductive health service and modem family planning methods, includes exemption from being obligated
to give reproductive health information and to render reproductive health procedures. Clearly, subject to
the qualifications and exemptions earlier discussed, the right to be exempt from being obligated to render
reproductive health service and modem family planning methods, necessarily includes exemption from being
obligated to give reproductive health information and to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the providing of information and the rendering of
medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service providers
who intentionally withhold, restrict and provide incorrect information regarding reproductive health
programs and services. For ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to informed
choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with
established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety;
and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means with awareness
or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l), they connote a sense
of malice and ill motive to mislead or misrepresent the public as to the nature and effect of programs and
services on reproductive health. Public health and safety demand that health care service providers give their
honest and correct medical information in accordance with what is acceptable in medical practice. While
health care service providers are not barred from expressing their own personal opinions regarding the
programs and services on reproductive health, their right must be tempered with the need to provide public
health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it
discriminates against the poor because it makes them the primary target of the government program that
promotes contraceptive use . They argue that, rather than promoting reproductive health among the poor,
the RH Law introduces contraceptives that would effectively reduce the number of the poor. Their bases are
the various provisions in the RH Law dealing with the poor, especially those mentioned in the guiding
principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive health
education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of
equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in
the concept of due process, as every unfair discrimination offends the requirements of justice and fair play.
It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form
of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis
of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice,
the sharper weapon to cut it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public
bodies and inst itutions to treat similarly situated individuals in a similar manner." "The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution through
the state's duly constituted authorities." "In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions
cover all the departments of the government including the political and executive departments, and extend
to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is
taken.
It, however, does not require the universal application of the laws to all persons or things without distinction.
What it simply requires is equality among equals as determined according to a valid classification. Indeed,
the equal protection clause permits classification. Such classification, however, to be valid must pass the test
of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally
to all members of the same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class. "The classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of the class should possess
the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all
those covered by the classification are to be treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is substantially distinguishable from all others,
does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition
to the number included in the class. It must be of such a nature as to embrace all those who may thereafter
be in similar circumstances and conditions. It must not leave out or "underinclude" those that should
otherwise fall into a certain classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care program is
not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the
Constitution which recognizes the distinct necessity to address the needs of the underprivileged by providing
that they be given priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development which
shall endeavor to make essential goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
106
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering
from fertility issues and desire to have children. There is, therefore, no merit to the contention that the RH
Law only seeks to target the poor to reduce their number. While the RH Law admits the use of contraceptives,
it does not, as elucidated above, sanction abortion. As Section 3(1) explains, the "promotion and/or
stabilization of the population growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. While the petitioners surmise that the assailed law
seeks to charge couples with the duty to have children only if they would raise them in a truly humane way,
a deeper look into its provisions shows that what the law seeks to do is to simply provide priority to the poor
in the implementation of government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive health
education program under Section 14, suffice it to state that the mere fact that the children of those who are
less fortunate attend public educational institutions does not amount to substantial distinction sufficient to
annul the assailed provision. On the other hand, substantial distinction rests between public educational
institutions and private educational institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially with respect to religious instruction and to
consider their sensitivity towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition
against involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-
government health care service providers to render forty-eight (48) hours of pro bono reproductive health
services, actually amounts to involuntary servitude because it requires medical practitioners to perform acts
against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered
as forced labor analogous to slavery, as reproductive health care service providers have the discretion as to
the manner and time of giving pro bono services. Moreover, the OSG points out that the imposition is within
the powers of the government, the accreditation of medical practitioners with PhilHealth being a privilege
and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is
both a power and a duty of the State to control and regulate it in order to protect and promote the public
welfare. Like the legal profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this power includes the power of
Congress263 to prescribe the qualifications for the practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public safety; and to regulate or control such
professions or trades, even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force,
threats, intimidation or other similar means of coercion and compulsion.265 A reading of the assailed
provision, however, reveals that it only encourages private and non- government reproductive healthcare
service providers to render pro bono service. Other than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they wish to provide, when, where
and how to provide it or whether to provide it all. Clearly, therefore, no compulsion, force or threat is made
upon them to render pro bono service against their will. While the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by Congress in the furtherance of a perceived legitimate
state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their religious beliefs and convictions do not allow them
to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether
or not a supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the
competency to evaluate, register and cover health services and methods. It is the only government entity
empowered to render such services and highly proficient to do so. It should be understood that health
services and methods fall under the gamut of terms that are associated with what is ordinarily understood
as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and
Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office
of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant
to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers,
consumers, and non-consumer users of health products to report to the FDA any incident that reasonably
indicates that said product has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
107
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or
not registered with the FDA Provided, That for registered health products, the cease and desist order is valid
for thirty (30) days and may be extended for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious,
unsafe, dangerous, or grossly deceptive, and to require all concerned to implement the risk management
plan which is a requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the
agency to carry out the mandates of the law. Being the country's premiere and sole agency that ensures the
safety of food and medicines available to the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of necessary implication, the mandate by Congress
to the FDA to ensure public health and safety by permitting only food and medicines that are safe includes
"service" and "methods." From the declared policy of the RH Law, it is clear that Congress intended that the
public be given only those medicines that are proven medically safe, legal, non-abortifacient, and effective
in accordance with scientific and evidence-based medical research standards. The philosophy behind the
permitted delegation was explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of the
legislature to cope directly with the many problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of
the problems attendant upon present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers
devolved to local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17
vested upon the LGUs the duties and functions pertaining to the delivery of basic services and facilities, as
follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government
units shall likewise exercise such other powers and discharge such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities that have
already been devolved upon them from the national agencies on the aspect of providing for basic services
and facilities in their respective jurisdictions, paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and
other facilities, programs and services funded by the National Government under the annual General
Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where the local government unit
concerned is duly designated as the implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU is
particularly designated as the implementing agency, it has no power over a program for which funding has
been provided by the national government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU.269 A complete relinquishment of
central government powers on the matter of providing basic facilities and services cannot be implied as the
Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health
care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health workers,273
it will be the national government that will provide for the funding of its implementation. Local autonomy is
not absolute. The national government still has the say when it comes to national priority programs which
the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services.
There is nothing in the wording of the law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law amounts to an undue
encroachment by the national government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to
the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the
operation of the RH Law in the autonomous region, refer to the policy statements for the guidance of the
regional government. These provisions relied upon by the petitioners simply delineate the powers that may
be exercised by the regional government, which can, in no manner, be characterized as an abdication by the
State of its power to enact legislation that would benefit the general welfare. After all, despite the veritable
autonomy granted the ARMM, the Constitution and the supporting jurisprudence, as they now stand, reject
the notion of imperium et imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the Constitution, Congress
cannot be restricted to exercise its inherent and plenary power to legislate on all subjects which extends to
all matters of general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does
not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution.
While every law enacted by man emanated from what is perceived as natural law, the Court is not obliged
to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by
an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on inherent rights
espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in
the law as an abstraction, rather than in the actual law of the past or present.277 Unless, a natural right has
been transformed into a written law, it cannot serve as a basis to strike down a law. In Republic v.
Sandiganbayan,278 the very case cited by the petitioners, it was explained that the Court is not duty-bound
108
to examine every law or action and whether it conforms with both the Constitution and natural law. Rather,
natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man
where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow
abortion in any shape or form. It only seeks to enhance the population control program of the government
by providing information and making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services,
methods, devices, and supplies. As earlier pointed out, however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of what the law hopes to achieve. After all, the Constitutional
safeguard to religious freedom is a recognition that man stands accountable to an authority higher than the
State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to
impose its beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that peace and harmony may continue
to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to
address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of
these perennial issues is not the large population but the unequal distribution of wealth. Even if population
growth is controlled, poverty will remain as long as the country's wealth remains in the hands of the very
few.
At any rate, population control may not be beneficial for the country in the long run. The European and Asian
countries, which embarked on such a program generations ago , are now burdened with ageing populations.
The number of their young workers is dwindling with adverse effects on their economy. These young workers
represent a significant human capital which could have helped them invigorate, innovate and fuel their
economy. These countries are now trying to reverse their programs, but they are still struggling. For one,
Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers.
This is because we have an ample supply of young able-bodied workers. What would happen if the country
would be weighed down by an ageing population and the fewer younger generation would not be able to
support them? This would be the situation when our total fertility rate would go down below the
replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive measures
(like the penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy
of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as
enacted by the lawmaking body. That is not the same as saying what the law should be or what is the correct
rule in a given set of circumstances. It is not the province of the judiciary to look into the wisdom of the law
nor to question the policies adopted by the legislative branch. Nor is it the business of this Tribunal to remedy
every unjust situation that may arise from the application of a particular law. It is for the legislature to enact remedial
legislation if that would be necessary in the premises. But as always, with apt judicial caution and cold neutrality, the
Court must carry out the delicate function of interpreting the law, guided by the Constitution and existing legislation
and mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself
to the judicial task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729)
and the reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions
of the assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption of any
family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities and non-
maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any healthcare service provider who fails and or refuses to disseminate information regarding programs and
services on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual, not in
an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of parental
consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-
threatening case, as defined under Republic Act No. 8344, to another health care service provider within the same
facility or one which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any public officer who refuses to support reproductive health programs or shall do any act that hinders the
full implementation of a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona reproductive health
service in so far as they affect the conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining abortifacients
and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section 4(a) of the RH Law
and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.
SO ORDERED.
109

G.R. No. L-47178 May 16, 1980 is shown that the death or disability arose in the course of employment, with the burden of overthrowing it being
cast on the person or entity resisting the claim. Time and time again this Court has stressed such statutory provision.
ESTRELLA B. ONDOY, petitioner, It suffices to mention cases decided from January to April of this year. 16 An appraisal of the counter-affidavits
vs. submitted by two employees of private respondent and thereafter beholden to him to the effect that the deceased
VIRGILIO IGNACIO, Proprietor M/B LADY ESTRELLITA and/or IMPERIAL FISHING ENTERPRISES and/or THE SECRETARY left the vessel for a drinking spree certainly cannot meet the standard required to negate the force of the
OF LABOR and/or THE COMPENSATION APPEALS AND REVIEW STAFF, Department of Labor, respondents. presumption of compensability.

Fernardo R. Moreno for petitioner. 4. Nor is an affirmance of the finding of the referee adverse to the claim warranted because of the
doctrine that the findings of facts of an administrative agency must be accorded due weight and consideration. An
Feliciano Tumale for private respondents. excerpt from the recent case of Uy v. Workmen's Compensation Commission 17 finds pertinence: "The claim merits
scant consideration for this Court is authorized to inquire into the facts when the conclusions are not supported by
E. V. Espanol for public respondent. substantial or credible evidence. 18

FERNANDO, C.J.:têñ.£îhqwâ£
The undisputed facts argue strongly for the granting of the claim for compensation filed by petitioner, the mother of
one Jose Ondoy, who was drowned while in the employ of private respondent, Virgilio Ignacio. Whatever be the
cause for the failure to do so, it is admitted that there was no controversion. Such omission, fatal in character, was
sought to be minimized by the filing of a motion to dismissed based on the alleged absence of an employment
relationship. What cannot be ignored, however, is that subsequently, in the hearing of such claim private respondent
submitted affidavits executed by the chief engineer and oiler of the fishing vessel that the deceased a fisherman, was
in that ship, undeniably a member of the working force, but after being invited by friends to a drinking spree, left the
vessel, and thereafter was found dead. The referee summarily ignored the affidavit of the chief-mate of respondent
employer to the effect "that sometime in October, 1968, while Jose Ondoy, my co-worker, was in the actual
performance of his work with said fishing enterprises, he was drowned and died on October 22, 1968. That the
deceased died in line of Duty." 1 The hearing officer or referee dismissed the claim for lack of merit. 2 A motion for
reconsideration was duly filed, but in an order dated August 29, 1977, the then Secretary of Labor, now Minister Blas
F. Ople, denied such motion for reconsideration for lack of merit. 3 Hence this petition for review.
1. In La Mallorca v. Workmen's Compensation Commission, 4 this Court explicitly held that the failure to
controvert "is fatal to any defense that petitioner could interpose. So we have held in a host of decisions in
compliance with the clear and express language of the Workmen's Compensation Act. Any Assertion to the contrary
is doomed to futility. 5 The opinion noted thirty decisions starting from Bachrach Motor Co. v. Workmen's
Compensation Commission 6 to Northwest Orient Airlines, Inc. v. Workmen's Compensation Commission. 7
Thereafter, in Regal Auto Works, Inc. v. Workmen's Compensation Commission, 8 such a doctrine was reaffirmed. It
was further noted that nine more decisions had been rendered by this Court starting from Republic v. Workmen's
Compensation Commission 9 to Abong v. Workmen's Compensation Commission. 10 By the time respondent
secretary of Labor denied the motion for reconsideration, a host of decisions that speaks to the same effect had been
promulgated. 11 It clearly, appears, therefore, that the failure of the referee to grant the award ought to have been
remedied and the motion for reconsideration granted.
5. This Court, in recognizing the right of petitioner to the award, merely adheres to the interpretation
uninterruptedly followed by this Court resolving all doubts in favor of the claimant. So it has been since the first
leading case of Francisco v. Conching 19 decided a year after the 1935 Constitution took effect. What was said in
Victorias Milling Co., Inc. v. Workmen's Compensation Commission 20 is not amiss: "There is need, it seems, even at
this late date, for [private respondent] and other employers to be reminded of the high estate accorded the
Workmen's Compensation Act in the constitutional scheme of social justice and protection to labor. 21 Further: "No
other judicial attitude may be expected in the face of a clearly expressed legislative determination which antedated
the constitutionally avowed concern for social justice and protection to labor. It is easily understandable why the
judiciary frowns on resort to doctrines, which even if deceptively plausible, would result in frustrating such a national
policy. 22 Lastly, to quote from the opinion therein rendered: "To be more specific, the principle of social justice is in
this sphere strengthened and vitalized. A realistic view is that expressed in Agustin v. Workmen's Compensation
Commission: 'As between a laborer, usually poor and unlettered, and the employer, who has resources to secure
able legal advice, the law has reason to demand from the latter stricter compliance. Social justice in these cases is
not equality but protection.' 23
WHEREFORE, the petition for review is granted and petitioner Estrelita B. Ondoy is awarded the sum of, P6,000.00
as compensation for the death of her son, Jose Ondoy; P300.00 for burial expenses; and P600.00 as attorney's fees.
This decision is immediately executory. Costs against private respondent Virgilio Ignacio.

2. The deceased in this case met his death because of drowning. In Camotes Shipping Corporation v.
Otadoy, 12 there was not even any direct testimony that the deceased was drowned while in the performance of his
duty. All that could be alleged was that he "was lost at sea while in the employ of petitioner. 13 Nonetheless, the
award for compensation was sustained. Likewise, the ruling in Caltex (Phil.) Inc. v. Villanueva 14 was cited with
approval. Thus: "The fact that the employee was found missing while on board the petitioner's vessel MV 'Caltex
Mindanao' became known to the captain of the vessel on 10 October 1956 but it was only on 6 November 1956 when
the petitioner transmitted to the respondent Compensation WCC For in No. 3 stating that the employee was 'Lost at
sea and presumed dead as of October 10, 1956,' and that it was controverting the respondent's claim. 15 In the
present case, there is evidence of the fact of death due to drowning. That was not controverted. Under the
circumstances, the failure to grant the claim finds no justification in law.

3. It bears repeating that there is evidence, direct and categorical, to the effect that the deceased was
drowned while "in the actual performance of his work" with the shipping enterprise of private respondent. Even
without such evidence, the petitioner could have relied on the presumption of compensability under the Act once it