[No. 45459.
 March 13, 1937] does not authorize the appropriation, use or application of public money or property for
GREGORIO AGLIPAY, petitioner, vs. JUAN Ruiz, respondent,
1.PROHIBITION; ISSUANCE OF WRIT FOR ACTS PERFORMED WITHOUT JURISDICTION.
—While, generally, prohibition as an extraordinary legal writ will not issue to restrain or
control the performance of other than judicial or quasi-judicial functions (50 C. J., 658),
its issuance and enforcement are regulated by statute and in this jurisdiction may issue
to "* * * inferior tribunals, corporations, boards, or persons, whether exercising functions
judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal,
corporation, board, or person * * *." (Secs. 516 and 226, Code of Civil Procedure.)
2.ID.; ID.; DIRECTOR OF POSTS.—The terms "judicial" and "ministerial" used with
reference to "functions" in the statute are undoubtedly comprehensive and include the
challenged act of the respondent Director of Posts in the present case, which act because
alleged to be violative of the Constitution is a fortiori "without or in excess of * * *
jurisdiction."
3.ID.; ID.; WRIT NOT CONFINED EXCLUSIVELY TO COURTS OR TRIBUNALS.—The
statutory rule, therefore, in this jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own jurisdiction
and to prevent them from encroaching upon the jurisdiction of other tribunals, but will
issue, in appropriate cases, to an officer or person whose acts are without or in excess of
his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly
administration of justice, or to prevent the use of the strong arm of the law in an
oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and
Fajardo vs. Fernandez [1922], 43 Phil., 304, 307.)
4.CONSTITUTION OF THE PHILIPPINES; RELIGIOUS FREEDOM.—What is guaranteed by
our Constitution is religious liberty, not mere religious toleration. Religious freedom,
however, as a constitutional mandate is not inhibition of profound reverence for religion
and is not a denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it
instills into the minds the purest principles of morality, its influence is deeply felt and
highly appreciated.
5.ID.; ID.; POSTAGE STAMPS ISSUED UNDER ACT No. 4052.—The respondent Director
of Posts issued the postage stamps in question under the provisions of Act No. 4052 of
the Philippine Legislature which appropriates the sum of sixty thousand pesos for the cost
of plates and' printing of postage stamps with new designs and other expenses incident
thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public
Works and Communications, to dispose of the amount appropriated in the manner
indicated and "as often as may be deemed advantageous to the Government."
6.ID.; ID.; ID.—Act No. 4052 contemplates no religious purpose in view. What it gives
the Director of Posts is the discretionary power to determine when the issuance of special
postage stamps would be "advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the violation of the Constitution. It
the use, benefit or support of a particular sect or church. In the present case, however,
the issuance of the postage stamps in question by the Director of Posts and the Secretary
of Public Works and Communications was not inspired by any sectarian feeling to favor a
particular church or religious denomination. The stamps were not issued and sold for the
benefit of the Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church.
7.ID.; ID.; ID.—The only purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourists to this country." The officials concerned merely took
advantage of an event considered of international importance "to give publicity to the
Philippines and its people." The stamps as actually designed and printed (Exhibit 2),
instead of showing a Catholic Church chalice as originally planned, contains a map of the
Philippines and the location of the City of Manila, and an inscription as follows: "Seat
XXXIII International Eucharistic Congress, Feb. 3-7, 1937." What is emphasized is not the
Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that
congress.
8.ID.; ID.; ID.—While the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the
Government. The Government should not be embarrassed in its activities simply because
of incidental results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law.
ed., 168.)
ORIGINAL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the court.
Vicente Sotto for petitioner.
Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church,
seeks the issuance from this court of a writ of prohibition to prevent the respondent Director
of Posts from issuing and selling postage stamps commemorative of the Thirty-third
International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order
the issuance -of postage stamps commemorating the celebration in the City of Manila of the
Thirty-third International Eucharistic Congress, organized by the Roman Catholic Church. The
petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto,
Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines.
In spite of the protest of the petitioner's attorney, the respondent publicly announced having
sent to the United States the designs of the postage stamps for printing as follows:
"In the center is a chalice, with grape vine and stalks of wheat as border design. The
stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1.094 inches. The
denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued
and sold though the greater part thereof, to this day, remains unsold. The further sale of the
stamps is sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in
the instant case, although he admits that the writ may properly restrain ministerial functions.
While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control
the performance of other than judicial or quasi-judicial functions (50 C. J., 658), its issuance
and enforcement are regulated by statute and in this jurisdiction may issue to "* * * inferior
tribunals, corporations, boards, or persons, whether exercising functions judicial or ministerial,
which are without of in excess of the jurisdiction of such tribunal, corporation, board, or
person * * *." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and
"ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the present case, which
act because alleged to be violative of the Constitution is a fortiori "without or in excess of * *
* jurisdiction." The statutory rule, therefore, in this jurisdiction is that the writ of prohibition is
not confined exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but
will issue, in appropriate cases, to an officer or person whose acts are without or in excess of
his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly
administration of justice, or to prevent the use of the strong arm of the law in an oppressive
or vindictive manner, or a multiplicity of actions." (Dimayuga and
Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the Constitution by
the respondent in issuing and selling postage stamps commemorative of the Thirtythird
International Eucharistic Congress. It is alleged that this action of the respondent is violative
of the provisions of section 13, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
"No public money or property shall ever be appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium."
The prohibition herein expressed is a direct corollary of the principle of separation of
church and state. Without the necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that our history, not to speak of the history of
mankind, has taught us that the union of church and state is prejudicial to both, for occasions
might arise when the state will use the church, and the church the state, as a weapon in the
furtherance of their respective ends and aims. The Malolos Constitution recognized this
principle of separation of church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the United States and Spain of
December 10, 1898, reiterated in President McKinley's Instructions to the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the Autonomy Act of August 29,
1916, and finally embodied in the Constitution of the Philippines as the supreme expression of
the Filipino people. It is almost trite to say now that in this country we enjoy both religious
and civil freedom. All the officers of the Government, from the highest to the lowest, in taking
their oath to support and defend the Constitution, bind themselves to recognize and respect
the constitutional guarantee of religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our Constitution is religious
liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound
reverence for religion and is not a denial of its influence in human affairs. Religion as a
profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of
their Constitution, implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty and democracy," they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is recognized here as elsewhere.
In fact, certain general concessions are indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from taxation properties devoted exclusively
to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. 4, Ordinance appended thereto;
Assessment Law, sec. 344, par. [c], Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned to the armed
forces or to any penal institution, orphanage or leprosarium (sec. 13, subsec. 3, Art. VI,
Constitution of the Philippines). Optional religious instruction in the public schools is by
constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to
sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day,
and Sundays are made legal holidays (sec. 29, Adm. Code) because of the secular idea that
their observance is conducive to beneficial moral results. The law allows divorce but punishes
polygamy and bigamy; and certain crimes against religious worship are considered crimes
against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage
stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act
is as follows:
"No. 4052.—AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING
THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE
APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH
NEW DESIGNS, AND FOR OTHER PURPOSES.
"Be it enacted by the Senate and House of Representatives of the Philippines in Legislature the Philippines and its people" (Letter of the Undersecretary of Public Works and
assembled and by the authority of the same: Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint).

"SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately
available out of any funds in the Insular Treasury not otherwise appropriated, for the cost of
plates and printing of postage stamps with new designs, and other expenses incident thereto.
"SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and
Communications, is hereby authorized to dispose of the whole or any portion of the amount
herein appropriated in the manner indicated and as often as may be deemed advantageous to
the Government.
"SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the
Treasury.
It is significant to note that the stamps' as actually designed and printed (Exhibit 2),
instead of showing a Catholic Church chalice as originally planned, contains a map of the
Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII
International Eucharistic Congress, Feb. 3-7, 1937." What is emphasized is not the Eucharistic
Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is
obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the Government. We
are of the opinion that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had in view is
one which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

"SEC. 4. This act shall take effect on its approval.

"Approved, February 21, 1933." We are much impressed with the vehement appeal of counsel for the petitioner to
maintain inviolate the complete separation of church and state and curb any attempt to
infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of
It will be seen that the Act appropriates the sum of sixty thousand pesos for the cost of plates
religious intolerance and persecution, care should be taken that at this stage of our political
and printing of postage stamps with new designs and other expenses incident thereto, and
development nothing is done by the Government or its officials that may lead to the belief that
authorizes the Director of Posts, with the approval of the Secretary of Public Works and
the Government is taking sides or favoring a particular religious sect or institution, But, upon
Communications, to dispose of the amount appropriated in the manner indicated and "as often
very serious reflection, examination of Act No. 4052, and scrutiny of the attending
as may be deemed advantageous to the Govvernment". The printing and issuance of the
circumstances, we have come to the conclusion that there has been no constitutional
postage stamps in question appears to have been approved by authority of the President of
infraction in the case at bar. Act No. 4052 grants the Director of Posts, with the approval of
the Philippines in a letter dated September 1, 1936, made part of the respondent's
the Secretary of Public Works and Communications, discretion to issue postage stamps with
memorandum as Exhibit A. The respondent alleges that the Government of the Philippines
new designs "as often as may be deemed advantageous to the Government." Even if we were
would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived
to assume that these officials made use of a poor judgment in issuing and selling the postage
from the sale of the postage stamps in question at P1,618,179.10 and states that there still
stamps in question still, the case of the petitioner would fail to take in weight. Between the
remain to be sold stamps worth P1,402,279.02.
exercise of a poor judgment and the unconstitutionality of the step taken, a gap. exists which
is yet to be filled to justify the court in setting aside the official act assailed as coming within a
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts constitutional inhibition.
is the discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government"
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs.
does not authorize the violation of the Constitution. It does not authorize the appropriation,
So ordered.
use or application of public money or property for the use, benefit or support of a particular
sect or church. In the present case, however, the issuance of the postage stamps in question
by the Director of Posts and the Secretary of Public Works and Communications was not
Avanceña, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Concepcion, JJ., concur.
inspired by any sectarian feeling to favor a particular church or religious denomination. The
stamps were not issued and sold for the benefit of the Roman Catholic Church. Nor were
money derived from the sale of the stamps given to that church. On the contrary, it appears Petition denied.
from the letter of the Director of Posts of June 5, 1936, incorporated on page 2 of the
petitioner's complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourists to this country." The officials concerned
merely took advantage of an event considered of international importance "to give publicity to
 No. L-53487. May 25, 1981.* Same; Same; Same; Not every governmental activity which involves the use of public
funds and which has some religious tint is unconstitutional.— Not every governmental activity
which involves the expenditure of public funds and which has some religious tint is violative of
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR
the constitutional provisions regarding separation of church and state, freedom of worship and
and JESUS EDULLANTES, petitioners, vs. Hon. NUMERIANO G. ESTENZO, Presiding
banning the use of public money or property.
Judge of the Court of First Instance of Leyte, Ormoc City Branch V, BARANGAY
COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO,
Same; Same; Same; Same.—Monsignor Gregorio Aglipay, the founder and head of the
Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO
Philippine Independent Church, sought to enjoin the sale of those commemorative postage
NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer
stamps. It was held that the issuance of the stamps, while linked inseparably with an event of
LUCENA BALTAZAR, respondents.
a religious character, was not designed as a propaganda for the Catholic Church. Aglipay’s
prohibition suit was dismissed.
Constitutional Law; Barangays; Churches; A resolution of the Barangay Council for
soliciting contributions to buy a statue of the barangay’s patron saint and the use of such fund
Abad, Santos, J., concurring:
for said purpose does not violate the Constitution’s provision prohibiting use of public funds
for religious purposes.—The questioned resolutions do not directly or indirectly establish any
Barangays; Churches; A petty dispute of who should have the custody of a religious
religion, nor abridge religious liberty, nor appropriate public money or property for the benefit
image, the barangay or the local parish, should not have taken the time of the Supreme
of any sect, priest or clergyman. The image was purchased with private funds, not with tax
Court. The Church should be less concerned for inconsequential matters.—I want to add these
money. The construction of a waiting shed is entirely a secular matter.
observations: the images of saints are not worshipped; they are venerated. “Thou shall not
have strange gods.” A petty dispute on who should have custody of the statue of San Vicente
Same; Same; Same; Same.—Manifestly puerile and flimsy is petitioners’ argument that
Ferrer should not have taken up the time of the Supreme Court. There can be no doubt that
the barangay council favored the Catholic religion by using the funds raised by solicitations
the statue was bought with private funds raised by the barangay council which also decided
and donations for the purchase of the patron saint’s wooden image and making the image
who should have custody of it. How the cura parroco got it into Ins head that he should have
available to the Catholic church.
custody of the statue defies logic. It is not, therefore, suprising to hear statements that
religion has no relevance to current problems. Let there be affirmation action by the churches
Same; Same; Same; Same.—The wooden image was purchased in connection with the
and less concern for inconsequential matters.
celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the
purpose of favoring any religion nor interfering with religious matters or the religious beliefs of
PETITION from the judgment of the Court of First Instance.
the barrio residents. One of the highlights of the fiesta was the mass. Consequently, the
image of the patron saint had to be placed in the church when the mass was celebrated.
The facts are stated in the opinion of the Court.
Same; Same; Same; There is nothing unconstitutional in holding fiesta.—If there is
nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, AQUINO, J.:
then any activity intended to facilitate the worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as illegal. As noted in the first resolution, the
This case is about the constitutionality of four resolutions of the barangay council of Valencia,
barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural
Ormoc City, regarding the acquisition of the wooden image of San Vicente Ferrer to be used in
communities. The fiesta relieves the monotony and drudgery of the lives of the masses.
the celebration of his annual feast day. That issue was spawned by the controversy as to
whether the parish priest or a layman should have the custody of the image.
Same; Same; Same; Property; The statue having been purchased with the use of
barangay funds belongs to the barangay council not to the parish church .—There can be no
question that the image in question belongs to the barangay council. Father Osmeña’s claim On March 23, 1976, the said barangay council adopted Resolution No. 5, “reviving the
that it belongs to his church is wrong. The barangay council, as owner of the image, has the traditional socio-religious celebration” every fifth day of April “of the feast day of Señor San
right to determine who should have custody thereof. Vicente Ferrer, the patron saint of Valencia”.

Same; Same; Same; There will be nothing unconstitutional for the barangay council to That resolution designated the members of nine committees who would take charge of the
give the image of St. Ferrer to the Catholic Church. —If it chooses to change its mind and 1976 festivity. It provided for (1) the acquisition of the image of San Vicente Ferrer and (2)
decides to give the image to the Catholic church, that action would not violate the Constitution the construction of a waiting shed as the barangay’s projects. Funds for the two projects
because the image was acquired with private funds and is its private property. would be obtained through the “selling of tickets and cash donations” (Exh. A or 6).
 On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in
accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman
or hermano mayor of the fiesta, would be the caretaker of the image of San Vicente Ferrer
and that the image would remain in his residence for one year and until the election of his
successor as chairman of the next feast day.
It was further provided in the resolution that the image would be made available to the
Catholic parish church during the celebration of the saint’s feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the
barangay general assembly on March 26, 1976. Two hundred seventy-two voters ratified the
two resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations and cash donations of the barangay residents
and those of the neighboring places of Valencia. With those funds, the waiting shed was
constructed and the wooden image of San Vicente Ferrer was acquired in Cebu City by the
barangay council for four hundred pesos (Exh. F-1, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of
Barangay Valencia so that the devotees could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña,
refused to return that image to the barangay council on the pretext that it was the property of
the church because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a
mass, Father Osmeña allegedly uttered defamatory remarks against the barangay captain,
Manuel C. Veloso, apparently in connection with the disputed image. That incident provoked
Veloso to file against Father Osmeña in the city court of Ormoc City a charge for grave oral
defamation.
Father Osmeña retaliated by filing administrative complaints against Veloso with the city
mayor’s office and the Department of Local Government and Community Development on the
grounds of immorality, grave abuse of authority, acts unbecoming a public official and
ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia.
Because Father Osmeña did not accede to the request of Cabatingan to have custody of the
image and “maliciously ignored” the council’s Resolution No. 6, the council enacted on May 12,
1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father
Osmeña for the recovery of the image (Exh. C or 8). On June 14, 1976, the barangay council
passed Resolution No. 12, appointing Veloso as its representative in the replevin case (Exh. D
or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmeña and
Bishop Cipriano Urgel (Exh. F). After the barangay council had posted a cash bond of eight
hundred pesos, Father Osmeña turned over the image to the council (p. 10, Rollo). In his
answer to the complaint for replevin, he assailed the constitutionality of the said resolutions
(Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and
two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council
and its members (excluding two members) a complaint in the Court of First Instance at Ormoc
City, praying for the annulment of the said resolutions. Civil Case No. 1680-0).
The lower court dismissed the complaint. It upheld the validity of the resolutions. The
petitioners appealed under Republic Act No. 5440.
The petitioners contend that the barangay council was not duly constituted because
Isidoro M. Mañago. Jr., the chairman of the kabataang barangay, was not allowed to
participate in its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-
A). Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L,
directed that all barrios should be known as barangays and adopted the Revised Barrio
Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated. They are
quasi-municipal corporations endowed with such powers” as are provided by law “for the
performance of particular government functions, to be exercised by and through their
respective barrio governments in conformity with law” (Sec. 2, Revised Barrio Charter, R.A.
No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at least six
months, eighteen years of age or over and Filipino citizens duly registered in the list kept by
the barrio secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and six
councilmen (Sec. 7. Ibid.). Section 3 of Presidential Decree No. 684, which took effect on April
15, 1975, provides that “the barangay youth chairman shall be an ex-officio member of the
barangay council”, having the same powers and functions as a barangay councilman.
In this case, Mañago, the barangay youth chairman, was notified of the sessions of the
barangay council to be held on March 23 and 26, 1976 but he was not able to attend those
sessions because he was working with a construction company based at Ipil, Ormoc City (Par.
2[d], Exh. 1).
Mañago’s absence from the sessions of the barangay council did not render the said
resolutions void. There was a quorum when the said resolutions were passed.
 The other contention of the petitioners is that the resolutions contravene the constitutional
provisions that “no law shall be made respecting an establishment of religion” and that “no
public money or property shall ever be appropriated, applied, paid, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium” (Sec. 8, Article IV and sec. 18[2], Article VIII,
Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do not directly or
indirectly establish any religion, nor abridge religious liberty, nor appropriate public money or
property for the benefit of any sect, priest or clergyman. The image was purchased with
private funds, not with tax money. The construction of a waiting shed is entirely a secular
matter.
Manifestly puerile and flimsy is petitioners’ argument that the barangay council favored the
Catholic religion by using the funds raised by solicitations and donations for the purchase of
the patron saint’s wooden image and making the image available to the Catholic church.
We find that the momentous issues of separation of church and state, freedom of religion
and the use of public money to favor any sect or church are not involved at all in this case
even remotely or indirectly. It is not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint’s image. It would never have arisen
if the parties had been more diplomatic and tactful and if Father Osmeña had taken the
trouble of causing contributions to be solicited from his own parishioners for the purchase
of another image of San Vicente Ferrer to be installed in his church.
There can be no question that the image in question belongs to the barangay council.
Father Osmeña’s claim that it belongs to his church is wrong. The barangay council, as owner
of the image, has the right to determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic church, that
action would not violate the Constitution because the image was acquired with private
funds and is its private property.
The council has the right to take measures to recover possession of the image by enacting
Resolutions Nos. 10 and 12.

The preposterousness of that argument is rendered more evident by the fact that counsel
Not every governmental activity which involves the expenditure of public funds and which
advanced that argument in behalf of the petitioner, Father Osmeña, the parish priest.
has some religious tint is violative of the constitutional provisions regarding separation of
church and state, freedom of worship and banning the use of public money or property.
The wooden image was purchased in connection with the celebration of the barrio fiesta
honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated
nor interfering with religious matters or the religious beliefs of the barrio residents. One of the
sixty thousand pesos for the cost of plates and the printing of postage stamps with new
highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be
designs.
placed in the church when the mass was celebrated.

Under the law, the Director of Posts, with the approval of the Department Head and the
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint
President of the Philippines, issued in 1936 postage stamps to commemorate the celebration
for the barrio, then any activity intended to facilitate the worship of the patron saint (such as
in Manila of the 33rd International Eucharistic Congress sponsored by the Catholic Church.
the acquisition and display of his image) cannot be branded as illegal.

The purpose of the stamps was to raise revenue and advertise the Philippines. The design
As noted in the first resolution, the barrio fiesta is a socioreligious affair. Its celebration is
of the stamps showed a map of the Philippines and nothing about the Catholic Church. No
an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of
religious purpose was intended.
the lives of the masses.

The barangay council designated a layman as the custodian of the wooden image in order
to forestall any suspicion that it is favoring the Catholic church. A more practical reason for
that arrangement would be that the image, if placed in a layman’s custody, could easily be
made available to any family desiring to borrow the image in connection with prayers and
novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner
Garces swore that the said resolutions favored the Catholic church. On the other hand,
petitioners Dagar and Edullantes swore that the resolutions prejudiced the Catholics because
they could see the image in the church only once a year or during the fiesta (Exh. H and J).
Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church,
sought to enjoin the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event of a
religious character, was not designed as a propaganda for the Catholic Church. Aglipay’s
prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil. 627 and 55
Phil. 307, where a religious brotherhood, La Archicofradia del Santisimo Sacramento,
organized for the purpose of raising funds to meet the expenses for the annual fiesta in honor
of the Most Holy Sacrament and the Virgin Lady of Guadalupe, was held accountable for the
funds which it held as trustee.
Finding that the petitioners have no cause of action for the annulment of the barangay
resolutions, the lower court’s judgment dismissing their amended petition is affirmed. No
costs.
Under Republic Act 55 governing appointments of municipal employees, the approval of
the municipal council must be express. It cannot be inferred from the council’s approval of the
municipal budget containing petitioner’s name. (Carillo vs. Court of Appeals, 11 SCRA 170)
——o0o——

SO ORDERED.

     Fernando, C.J., Barredo, Makasiar, Guerrero, De Castro and Melencio-Herrera,

JJ., concur.

     Teehankee, J., in the result.

     Fernandez, J., on official leave.

     Concepcion, Jr., J., on official leave.

Abad Santos, J., concur. I want to add these observations: the images of saints are not
worshipped; they are venerated. “Thou shall not have strange gods.” A petty dispute on who
should have custody of the statue of San Vicente Ferrer should not have taken up the time of
the Supreme Court. There can be no doubt that the statue was bought with private funds
raised by the barangay council which also decided who should have custody of it. How
the cura parroco got it into his head that he should have custody of the statue defies logic. It
is not, therefore, suprising to hear statements that religion has no relevance to current
problems. Let there be affirmation action by the churches and less concern for inconsequential
matters.

Decision of the lower court is affirmed.

Notes.—For authority of a barrio council to enter into contracts for and in behalf of the
barrio without the consent of the municipal mayor and provincial governor of purchases
amounting to not more than P100.00 (Gone vs. District Engineer, 66 SCRA 335)

Irregularities in the conduct of barrio elections are proper grounds for protest and not a
quo warranto proceeding. (Palma vs. Mandocdoc, 6 SCRA 613)

A barrio lieutenant who fails to cause the prosecution of a person for the crime of arson of
which he is aware is guilty of “prevaricacion.” (People vs. Animo, 23 SCRA 870)

The City Government as administrator of reserved properties is without authority to

execute leases inconsistent with the purpose of an Executive Proclamation. (Republic vs.
Lardizabal, 80 SCRA 137)
 G.R. No. 153888. July 9, 2003.*
ISLAMIC DA’WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by
PROF. ABDULRAFIH H. SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE
SECRETARY of the Office of the President of the Philippines, herein represented by
HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE ON MUSLIM
AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB HASHIM,
respondents.
Constitutional Law; Bill of Rights; Free Exercise of Religion; Bearing in mind the
constitutional barrier between the Church and State, the latter must make sure that the Office
of Muslim Affairs does not intrude into purely religious matters lest it violate the non-
establishment clause and the “free exercise of religion” provision found in Article III, Section 5
of the 1987 Constitution.—OMA was created in 1981 through Executive Order No. 697 (EO
697) “to ensure the integration of Muslim Filipinos into the mainstream of Filipino society with
due regard to their beliefs, customs, traditions, and institutions.” OMA deals with the societal,
legal, political and economic concerns of the Muslim community as a “national cultural
community” and not as a religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that OMA does not intrude into
purely religious matters lest it violate the non-establishment clause and the “free exercise of
religion” provision found in Article III, Section 5 of the 1987 Constitution.
Same; Same; Same; Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom.—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.
In a society with a democratic framework like ours, the State must minimize its interference
with the affairs of its citizens and instead allow them to exercise reasonable freedom of
personal and religious activity.
Same; Same; Same; The protection and promotion of the muslim Filipino’s right to
health are already provided for in existing laws and ministered to by government agencies
charged with ensuring that food products released in the market are fit for human
consumption, properly labeled and safe.—We find no compelling justification for the
government to deprive muslim organizations, like herein petitioner, of their religious right to
classify a product as halal, even on the premise that the health of muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to issue halal certifications. The
protection and promotion of the muslim Filipinos’ right to health are already provided for in
existing laws and ministered to by government agencies charged with ensuring that food
products released in the market are fit for human consumption, properly labeled and
safe. Unlike EO 46, these laws do not encroach on the religious freedom of muslims.
Same; Same; Same; A food product, before its distribution to the market, is required to
secure the Philippine Standard Certification Mark after the concerned department inspects and
certifies its compliance with quality and safety standards.—Section 48(4) of the Administrative
Code of 1987 gives to the National Meat Inspection Commission (NMIC) of the Department of
Agriculture (DOA) the power to inspect slaughtered animals intended for human consumption
to ensure the safety of the meat released in the market. Another law, RA 7394, otherwise
known as “The Consumer Act of 1992,” gives to certain government departments the duty to
protect the interests of the consumer, promote his general welfare and to establish standards
of conduct for business and industry. To this end, a food product, before its distribution to the
market, is required to secure the Philippine Standard Certification Mark after the concerned
department inspects and certifies its compliance with quality and safety standards.
Same; Same; Same; Through the labeling provisions enforced by the DTI, muslim
consumers are adequately apprised of the products that contain substances or ingredients
that, according to their Islamic beliefs, are not fit for human intake. —Through the laws on
food safety and quality, therefore, the State indirectly aids muslim consumers in differentiating
food from non-food products. The NMIC guarantees that the meat sold in the market has
been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed safety and quality standards. Then,
through the labeling provisions enforced by the DTI, muslim consumers are adequately
apprised of the products that contain substances or ingredients that, according to their Islamic
beliefs, are not fit for human intake. These are the non-secular steps put in place by the State
to ensure that the muslim consumers’ right to health is protected. The halal certifications
issued by petitioner and similar organizations come forward as the official religious approval of
a food product fit for muslim consumption.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the Court.
     Linzag, Arcilla & Associates Law Offices for petitioner.
     The Solicitor General for respondents.
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Da’wah Council of the
Philippines, Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s.
2001 and the prohibition of herein respondents Office of the Executive Secretary and Office of
Muslim Affairs (OMA) from implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and
Development License No. SB-01-085, is a non-governmental organization that extends
voluntary services to the Filipino people, especially to Muslim communities. It claims to be a
federation of national Islamic organizations and an active member of international
organizations such as the Regional Islamic Da’wah Council of Southeast Asia and the Pacific
(RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP accredited petitioner to
issue halal2 certifications in the Philippines. Thus, among the functions petitioner carries out is
to conduct seminars, orient manufacturers on halal food and issue halal certifications to
qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products as halal and
also due to halal food producers’ request, petitioner formulated in 1995 internal rules and
procedures based on the Qur’an3 and the Sunnah4 for the analysis of food, inspection thereof
and issuance of halal certifications. In that same year, petitioner began to issue, for a fee,
certifications to qualified products and food manufacturers. Petitioner even adopted for use on
its halal certificates a distinct sign or logo registered in the Philippine Patent Office under
Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 465 creating
the Philippine Halal Certification Scheme and designating respondent OMA to oversee its
implementation. Under the EO, respondent OMA has the exclusive authority to issue halal
certificates and perform other related regulatory activities.
On May 8, 2002, a news article entitled “OMA Warns NGOs Issuing Illegal ‘Halal’
Certification” was published in the Manila Bulletin, a newspaper of general circulation. In said
article, OMA warned Muslim consumers to buy only products with its official halal certification
since those without said certification had not been subjected to careful analysis and therefore
could contain pork or its derivatives. Respondent OMA also sent letters to food manufacturers
asking them to secure the halal certification only from OMA lest they violate EO 46 and RA
4109.6 As a result, petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the
separation of Church and State.7 It is unconstitutional for the government to formulate
policies and guidelines on the halal certification scheme because said scheme is a function
only religious organizations, entity or scholars can lawfully and validly perform for the Muslims.
According to petitioner, a food product becomes halal only after the performance of Islamic
religious ritual and prayer. Thus, only practicing Muslims are qualified to slaughter animals for
food. A government agency like herein respondent OMA cannot therefore perform a religious
function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987
Constitution which provides that “(n)o law impairing the obligation of contracts, shall be
passed.” After the subject EO was implemented, food manufacturers with existing contracts
with petitioner ceased to obtain certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII
of the 1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLE’S ORGANIZATIONS
Sec. 15. The State shall respect the role of independent people’s organizations to enable the
people to pursue and protect, within the democratic framework, their legitimate and collective
interests and aspirations through peaceful and lawful means.
People’s organizations are bona fide associations of citizens with demonstrated capacity to
promote the public interest and with identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even
consulting Muslim people’s organizations like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) “to ensure the
integration of Muslim Filipinos into the mainstream of Filipino society with due regard to their
beliefs, customs, traditions, and institutions.”8 OMA deals with the societal, legal, political and
economic concerns of the Muslim community as a “national cultural community” and not as a
religious group. Thus, bearing in mind the constitutional barrier between the Church and
State, the latter must make sure that OMA does not intrude into purely religious matters lest it
violate the non-establishment clause and the “free exercise of religion” provision found in
Article III, Section 5 of the 1987 Constitution.9
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is “designed to
protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good.”10
Without doubt, classifying a food product as halal is a religious function because the
standards used are drawn from the Qur’an and Islamic beliefs. By giving OMA the exclusive
power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim
organizations like herein petitioner to interpret for Filipino Muslims what food products are fit
for Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the
State has in effect forced Muslims to accept its own interpretation of the Qur’an and Sunnah
on halal food.
To justify EO 46’s intrusion into the subject religious activity, the Solicitor General argues
that the freedom of religion is subservient to the police power of the State. By delegating to
OMA the authority to issue halal certifications, the government allegedly seeks to protect and
promote the muslim Filipinos’ right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom.11 If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable. In a society with a democratic framework like ours, the State must minimize its
interference with the affairs of its citizens and instead allow them to exercise reasonable
freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government to deprive
muslim organizations, like herein petitioner, of their religious right to classify a product as
halal, even on the premise that the health of muslim Filipinos can be effectively protected by
assigning to OMA the exclusive power to issue halal certifications. The protection and
promotion of the muslim Filipinos’ right to health are already provided for in existing laws and
ministered to by government agencies charged with ensuring that food products released in
the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these
laws do not encroach on the religious freedom of muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered
animals intended for human consumption to ensure the safety of the meat released in the
market. Another law, RA 7394, otherwise known as “The Consumer Act of 1992,” gives to
certain government departments the duty to protect the interests of the consumer, promote
his general welfare and to establish standards of conduct for business and industry.12 To this
end, a food product, before its distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department inspects and certifies its
compliance with quality and safety standards.13
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD)
of the Department of Health (DOH). Under Article 22 of said law, BFD has the duty to
promulgate and enforce rules and regulations fixing and establishing a reasonable definition
and standard of identity, a standard of quality and a standard of fill of containers for food. The
BFD also ensures that food products released in the market are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is
tasked to protect the consumer against deceptive, unfair and unconscionable sales acts or
practices as defined in Article 50.15 DTI also enforces compulsory labeling and fair packaging
to enable the consumer to obtain accurate information as to the nature, quality and quantity
of the contents of consumer products and to facilitate his comparison of the value of such
products.16
With these regulatory bodies given detailed functions on how to screen and check the
quality and safety of food products, the perceived danger against the health of muslim and
non-muslim Filipinos alike is totally avoided. Of great help are the provisions on labeling of
food products (Articles 74 to 85)17 of RA 7394. In fact, through these labeling provisions, the
State ably informs the consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling requirements. Through the
laws on food safety and quality, therefore, the State indirectly aids muslim consumers in
differentiating food from non-food products. The NMIC guarantees that the meat sold in the
market has been thoroughly inspected and fit for consumption.
Meanwhile, BFD ensures that food products are properly categorized and have passed
safety and quality standards. Then, through the labeling provisions enforced by the DTI,
muslim consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human intake. These are the
non-secular steps put in place by the State to ensure that the muslim consumers’ right to
health is protected. The halal certifications issued by petitioner and similar organizations come
forward as the official religious approval of a food product fit for muslim consumption.
We do not share respondents’ apprehension that the absence of a central administrative
body to regulate halal certifications might give rise to schemers who, for profit, will issue
certifications for products that are not actually halal. Aside from the fact that muslim
consumers can actually verify through the labels whether a product contains non-food
substances, we believe that they are discerning enough to know who the reliable and
competent certifying organizations in their community are. Before purchasing a product, they
can easily avert this perceived evil by a diligent inquiry on the reliability of the concerned
certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared
NULL AND VOID. Consequently, respondents are prohibited from enforcing the same.
SO ORDERED.
     Davide, Jr. (C.J.), Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-
Martinez, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
     Puno, J., I also concur with the opinion of J. Vitug.
     Vitug, J., Please see Separate Opinion.
     Quisumbing and Sandoval-Gutierrez, JJ., On official leave.
SEPARATE OPINION
VITUG, J.:
I concur, with the understanding as so explained during the deliberations, that the halal
certification, which herein petitioner and other similar organizations have been accredited to
issue, is not taken as a compulsory requirement for muslim food manufacturers to secure.
Adequate safeguards being already in place to ensure the safety of all food products, food
manufacturers would thus have the option, decided solely on the basis of marketing
advantage, whether or not to obtain the certification on their food products. In fine, the
acquisition of halal certificates should remain optional or only on a voluntary basis on the part
of manufacturers of muslim food products.
 Petition granted, Executive Order 46, s. 2000 declared null and void.

Note.—The principle of separation of church and state finds no application in this case
which is purely secular matter and not an ecclesiastical affair. (Austria vs. National Labor
Relations Commission, 312 SCRA 410 [1999])

——o0o——

514
 G.R. No. 144801. March 10, 2005.*
DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO
CANTA, JERRY CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO
DIZON, SALVADOR GELSANO and BENITO LAUGO, petitioners, vs. BISHOP
PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN BORDAS,
respondents.
Remedial Law; Actions; Jurisdictions; Religious Organizations; It is not for the courts to
exercise control over church authorities in the performance of their discretionary and official
functions.—We agree with the Court of Appeals that the expulsion/excommunication of
members of a religious institution/organization is a matter best left to the discretion of the
officials, and the laws and canons, of said institution/organization. It is not for the courts to
exercise control over church authorities in the performance of their discretionary and official
functions. Rather, it is for the members of religious institutions/organizations to conform to
just church regulations.
Same; Same; Same; Same; In disputes involving religious institutions or organizations,
there is one area which the Court should not touch: doctrinal and disciplinary differences .—In
the leading case of Fonacier v. Court of Appeals, we enunciated the doctrine that in disputes
involving religious institutions or organizations, there is one area which the Court should not
touch: doctrinal and disciplinary differences. Thus, The amendments of the constitution,
restatement of articles of religion and abandonment of faith or abjuration alleged by appellant,
having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church those allegedly
unworthy of membership, are unquestionably ecclesiastical matters which are outside the
province of the civil courts.
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Saleto J. Erames for petitioners.
     Nelson B. Panares, Dollfus R. Go and Eladio Ba. Anino II for respondents.
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of
Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional
Trial Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed
for lack of jurisdiction.
The antecedents show that petitioners were lay members of the Philippine Independent
Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio De la Cruz and Rustom
Florano were the bishop and parish priest, respectively, of the same church in that locality.
Petitioners, led by Dominador Taruc, clamored for the transfer of Fr. Florano to another parish
but Bishop De la Cruz denied their request. It appears from the records that the family of Fr.
Florano’s wife belonged to a political party opposed to petitioner Taruc’s, thus the animosity
between the two factions with Fr. Florano being identified with his wife’s political camp. Bishop
De la Cruz, however, found this too flimsy a reason for transferring Fr. Florano to another
parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte
worsened when petitioner Taruc tried to organize an open mass to be celebrated by a certain
Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop De la
Cruz of his plan, the Bishop tried to dissuade him from pushing through with it because Fr.
Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a
parish priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from
committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised
petitioners to air their complaints before the higher authorities of PIC if they believed they had
valid grievances against him, the parish priest, the laws and canons of the PIC.
Bishop De la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19,
1993, at around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with
Fr. Ambong as the celebrant.
On June 28, 1993, Bishop De la Cruz declared petitioners expelled/excommunicated from
the Philippine Independent Church for reasons of:
. (1)disobedience to duly constituted authority in the Church;
. (2)inciting dissension, resulting in division in the Parish of Our Mother of Perpetual
Help, Iglesia Filipina Independiente, Socorro, Surigao del Norte when they
celebrated an open Mass at the Plaza on June 19, 1996; and
. (3)for threatening to forcibly occupy the Parish Church causing anxiety and fear
among the general membership.1
Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision.
In his letter to Bishop De la Cruz, the Obispo Maximo opined that Fr. Florano should step
down voluntarily to avert the hostility and enmity among the members of the PIC parish in
Socorro but stated that:
. . . I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro
parish . . . .2
In the meantime, Bishop De la Cruz was reassigned to the diocese of Odmoczan and was
replaced by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a
valid reason for transferring Fr. Florano to another parish. He issued a circular denying
petitioners’ persistent clamor for the transfer/re-assignment of Fr. Florano. Petitioners were
informed of such denial but they continued to celebrate mass and hold other religious
activities through Fr. Ambong who had been restrained from performing any priestly functions
in the PIC parish of Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for
damages with preliminary injunction against Bishop De la Cruz before the Regional Trial Court
of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory
that they conspired with the Bishop to have petitioners expelled and excommunicated from
the PIC. They contended that their expulsion was illegal because it was done without trial thus
violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of
lack of jurisdiction but it was denied. Their motion for reconsideration was likewise denied so
they elevated the case to the Court of Appeals.
The appellate court reversed and set aside the decision of the court a quo and ordered the
dismissal of the case without prejudice to its being refiled before the proper forum. It held:
. . . We find it unnecessary to deal on the validity of the ex-communication/expulsion of the
private respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this
Court considers to be outside the province of the civil courts.
...
“Civil Courts will not interfere in the internal affairs of a religious organization except for
the protection of civil or property rights. Those rights may be the subject of litigation in a civil
court, and the courts have jurisdiction to determine controverted claims to the title, use, or
possession of church property.” (Ibid., p. 466)
...
Obviously, there was no violation of a civil right in the present case.
...
Ergo, this Court is of the opinion and so holds that the instant case does not involve a
violation and/or protection of a civil or property rights in order for the court a quo to acquire
jurisdiction in the instant case.3
Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to
hear a case involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.
In our jurisdiction, we hold the Church and the State to be separate and distinct from each
other. “Give to Ceasar what is Ceasar’s and to God what is God’s.” We have, however,
observed as early as 1928 that:
upon the examination of the decisions it will be readily apparent that cases involving questions
relative to ecclesiastical rights have always received the profoundest attention from the courts,
not only because of their inherent interest, but because of the far reaching effects of the
decisions in human society. [However,] courts have learned the lesson of conservatism in
dealing with such matters, it having been found that, in a form of government where the
complete separation of civil and ecclesiastical authority is insisted upon, the civil courts must
not allow themselves to intrude unduly in matters of an ecclesiastical nature.4 (italics ours)
We agree with the Court of Appeals that the expulsion/ex-communication of members of a
religious institution/organization is a matter best left to the discretion of the officials, and the
laws and canons, of said institution/organization. It is not for the courts to exercise control
over church authorities in the performance of their discretionary and official functions. Rather,
it is for the members of religious institutions/ organizations to conform to just church
regulations. In the words of Justice Samuel F. Miller:5
. . . all who unite themselves to an ecclesiastical body do so with an implied consent to submit
to the Church government and they are bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,6 we enunciated the doctrine that in
disputes involving religious institutions or organizations, there is one area which the Court
should not touch: doctrinal and disciplinary differences.7 Thus,
The amendments of the constitution, restatement of articles of religion and abandonment of
faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church and having reference to the power of
excluding from the church those allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts. (emphasis ours)
We would, however, like to comment on petitioners’ claim that they were not heard before
they were expelled from their church. The records show that Bishop De la Cruz pleaded with
petitioners several times not to commit acts inimical to the best interests of PIC. They were
also warned of the consequences of their actions, among them their
expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and
petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity
among the members of PIC in Socorro, Surigao del Norte. They should now take full
responsibility for the chaos and dissension they caused.

WHEREFORE, the petition is herby DENIED for lack of merit.

Costs against petitioners.

SO ORDERED.

     Panganiban (Chairman) and Sandoval-Gutierrez, JJ., concur.

     Carpio-Morales, J., On Leave.

     Garcia, J., No Part.

Petition denied.

Note.—Interference of civil courts in internal affairs of a religious organization, allowable

for protection of civil or property rights. (Negros District Conference, Inc. vs. Court of
Appeals, 108 SCRA 458 [1981])

——o0o——
 No. L-25246. September 12, 1974.*
BENJAMIN VICTORIANO, plaintiff-appellee, vs. ELIZALDE ROPE WORKERS’ UNION
and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE WORKERS’
UNION, defendant-appellant.
Constitutional law; Construction and integration; There is a presumption of
constitutionality in statutes.—All presumptions are indulged in favor of constitutionality; one
who attacks a statute, alleging unconstitutionally, must prove its invalidity beyond a
reasonable doubt; that a law may work hardship does not render it unconstitutional; that if
any reasonable basis may be conceived which supports the statute, it will be upheld, and the
challenger must negate all possible bases; that the courts are not concerned with the wisdom,
justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution
in favor of the constitutionality of legislation should be adopted.
Same; Right to form or join associations; An employee has the right to join or not join a
labor union.—What the Constitution and the Industrial Peace Act recognize and guarantee is
the “right” to form or join associations. Notwithstanding the different theories propounded by
the different schools of jurisprudence regarding the nature and contents of a “right”, it can be
safely said that whatever theory one subscribes to, a right comprehends at least two broad
notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an
employee may act for himself without being prevented by law; and second, power, whereby
an employee may, as he pleases, join or refrain from joining an association. It is, therefore,
the employee who should decide for himself whether he should join or not an association; and
should he choose to join, he himself makes up his mind as to which association he would join;
and even after he has joined, he still retains the liberty and the power to leave and cancel his
membership with said organization at any time. It is clear, therefore, that the right to join a
union includes the right to abstain from joining any union.
Same; Same; Labor laws; Unfair labor practice; Right to refrain from joining labor union
limited by the Industrial Peace Act.—The right to refrain from joining labor organizations
recognized by Section 3 of the Industrial Peace Act is, however, limited. The legal protection
granted to such right to refrain from joining is withdrawal by operation of law, where a labor
union and an employer have agreed on a closed shop, by virtue of which the employer may
employ only members of the collective bargaining union, and the employees must continue to
be members of the union for the duration of the contract in order to keep their jobs. Thus
Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act No. 3350,
provides that although it would be an unfair labor practice for an employer “to discriminate in
regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization” the employer is, however, not precluded
“from making an agreement with a labor organization to require as a condition of employment
membership therein, if such labor organization is the representative of the employees.” By
virtue, therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350,
if any person regardless of his religious beliefs, wishes to be employed or to keep his
employment, he must become a member of the collective bargaining union. Hence, the right
of said employee not to join the labor union is curtailed and withdrawn.
Same; Same; Same; Same; Exception to closed-shop agreement provided for
employees prohibited by their religion from joining any union.—To that all-embracing coverage
of the closed shop arrangement, Republic Act No. 3350 introduced an exception, when it
added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: “but such
agreement shall not cover members of any religious sects which prohibit affiliation of their
members in any such labor organization”. Republic Act No. 3350 merely excludes ipso
jure from the application and coverage of the closed shop agreement the employees belonging
to any religious sects which prohibit affiliation of their members with any labor organization.
What the exception provides, therefore, is that members of said religious sects cannot be
compelled or coerced to join labor unions even when said unions have closed shop
agreements with the employers; that in spite of any closed shop agreement, members of said
religious sects cannot be refused employment or dismissed from their jobs on the sole ground
that they are not members of the collective bargaining union.
Same; Impairment of contracts; Prohibition against impairment of contracts is not
absolute.—It should not be over looked that the prohibition to impair the obligation of
contracts is not absolute and unqualified. The prohibition is not to be read with literal
exactness like a mathematical formula, for it prohibits unreasonable impairment only. In spite
of the constitutional prohibition, the State continues to possess authority to safeguard the vital
interests of its people. Legislation appropriate to safeguarding said interests may modify or
abrogate contracts already in effect. For not only are existing laws read into contracts in order
to fix the obligations as between the parties, but the reservation of essential attributes of
sovereign power is also read into contracts as a postulate pf the legal order. All contracts
made with reference to any matter that is subject to regulation under the police power must
be understood as made in reference to the possible exercise of that power. Otherwise,
important and valuable reforms may be precluded by the simple device of entering into
contracts for the purpose of doing that which otherwise may be prohibited.
Same; Same; Test for determining whether statute violates the impairment-of-contract
clause.—In order to determine whether legislation unconstitutionally impairs contract
obligations, no unchanging yardstick, applicable at all times and under all circumstances, by
which the validity of each statute may be measured or determined, has been fashioned, but
every case must be determined upon its own circumstances. Legislation impairing the
obligation of contracts can be sustained when it is enacted for the promotion of the general
good of the people, and when the means adopted to secure that end are reasonable. Both the
end sought and the means adopted must be legitimate, i.e., within the scope of the reserved
power of the state construed in harmony with the constitutional limitation of that power.
Same; Same; Republic Act 3350 providing for exemption from closed shop agreements
does not violate the impairment-of-contract clause of the constitution.—What then was the
purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom
of belief and religion, and to promote the general welfare by preventing discrimination against
those members of religious sects which prohibit their members from joining labor unions,
confirming thereby their natural, statutory and constitutional right to work, the fruits of which
work are usually the only means whereby they can maintain their own life and the life of their
dependents. It cannot be gainsaid that said purpose is legitimate. The questioned Act also
provides protection to members of said religious sects against two aggregates of group
strength from which the individual needs protection. The individual employee, at various times
in his working life, is confronted by two aggregates of power—collective labor, directed by a
union, and collective capital, directed by management. The union, an institution developed to
organize labor into a collective force and thus protect the individual employee from the power
of collective capital, is, paradoxically, both the champion of employee rights, and a new source
of their frustration. Moreover, when the Union interacts with management, it produces yet a
third aggregate of group strength from which the individual also needs protection—the
collective bargaining relationship. It cannot be denied, furthermore, that the means adopted
by the Act to achieve that purpose—exempting the members of said religious sects from
coverage of union security agreements—is reasonable.
Same; Same; Religious freedom; Freedom of religion takes precedence over the right
against the impairment of contracts.—It may not be amiss to point out here that the free
exercise of religious profession or belief is superior to contract rights. In case of conflict, the
latter must, therefore, yield to the former. The Supreme Court of the United States has also
declared on several occasions that the rights in the First Amendment, which include freedom
of religion, enjoy a preferred position in the constitutional system. Religious freedom, although
not unlimited, is a fundamental personal right and liberty, and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only
where unavoidably necessary to prevent an immediate and grave danger to the security and
welfare of the community that infringement of religious freedom may be justified, and only to
the smallest extent necessary to avoid the danger.
Same; Same; Same; Republic Act 3350 does not advance or diminish the interest of any
particular religion.—The primary effects of the exemption from closed shop agreements in
favor of members of religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force of the collective
bargaining agreement, and relieving certain citizens of a burden on their religious beliefs; and
by’ eliminating to a certain extent economic insecurity due to unemployment, which is a
serious menace to the health, morals, and welfare of the people of the State, the Act also
promotes the well-being of society. It is our view that the exemption from the effects of closed
shop agreement does not directly advance, or diminish, the interests of any particular religion.
Although the exemption may benefit those who are members of religious sects that prohibit
their members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect. The “establishment clause” (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or harmonize with the tenets of
some or all religions. The free exercise clause of the Constitution has been interpreted to
require that religious exercise be preferentially aided.
Same; Same; Same; Republic Act 3350 does not require religious test for the exercise
of civil or political right—The Act does not require as a qualification, or condition, for joining
any lawful association membership in any particular religion or in any religious sect; neither
does the Act require affiliation with a religious sect that prohibits its members from joining a
labor union as a condition or qualification for withdrawing from a labor union. Joining or
withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts
members with such religious affiliation from the coverage of closed shop agreements. So,
under this Act, a religious objector is not required to do a positive act—to exercise the right to
join or to resign from the union. He is exempted ipso jure without need of any positive act on
his part.
Same; Equal protection of the law; Republic Act 3350 does not violate the equal
protection of the law clause of the constitution.—We believe that Republic Act No. 3350
satisfies the aforementioned requirements. The Act classifies employees and workers, as to
the effect and coverage of union shop security agreements, into those who by reason of their
religious beliefs and convictions cannot sign up with a labor union, and those whose religion
does not prohibit membership in labor unions. The classification rests on real or substantial,
not merely imaginary or whimsical, distinction. The classification introduced by said Act is also
germane to its purpose. The purpose of the law is precisely to avoid those who cannot,
because of their religious belief, join labor unions, from being deprived of their right to work
and from being dismissed from their work because of union shop security agreements.
Same; Social justice; Republic Act 3350 does not violate the concept of social justice
contained in the Constitution.—Appellant’s further contention that Republic Act No. 3350
violates the constitutional provision on social justice is also baseless. Social justice is intended
to promote the welfare of all the people. Republic Act No. 3350 promotes that welfare insofar
as it looks after the welfare of those who, because of their religious belief, cannot join labor
unions; the Act prevents their being deprived of work and of the means of livelihood. In
determining whether any particular measure is for public advantage, it is not necessary that
the entire state be directly benefited—it is sufficient that a portion of the state be benefited
thereby.
Same; Construction and interpretation; Statute is not unconstitutional merely because it
is not proper, necessary or denimble.—Appellant contends that the amendment introduced by
Republic Act No. 3350 is not called for—in other words, the Act is not proper, necessary or
desirable. Anent this matter, it has been held that a statute which is not necessary is not, for
that reason, unconstitutional; that in determining the constitutional validity of legislation, the
courts are unconcerned with issues as to the necessity for the enactment of the legislation in
question. Courts do inquire into the wisdom of laws. Moreover, legislatures, being chosen by
the people, are presumed to understand and correctly appreciate the needs of the people, and
it may change the laws accordingly.
Labor law; Labor dispute; Attorney’s fees; Case at bar, labor union liable for attorney’s
fees.—That there was a labor dispute in the instant case cannot be disputed, for appellant
sought the discharge of respondent by virtue of the closed shop agreement and under Section
2 (j) of Republic Act No. 875 a question involving tenure of employment is included in the
term “labor dispute”. The discharge or the act of seeking it is the labor dispute itself. It being
the labor dispute itself, that very same act of the Union in asking the employer to dismiss
Appellee cannot be “an act done x x x in furtherance of an industrial dispute”. The mere fact
that appellant is a labor union does not necessarily mean that all its acts are in furtherance of
an industrial dispute. Neither does Article 2208 of the Civil Code, invoked by the Union, serve
as its shield. The article provides that attorney’s fees and expenses of litigation may be
awarded “when the defendant’s act or omission has compelled the plaintiff x x x to incur
expenses to protect his interest”; and “in any other case where the court deems it just and
equitable that attorney’s fees and expenses of litigation should be recovered”. In the instant
case, it cannot be gainsaid that appellant Union’s act in demanding Appellee’s dismissal
caused Appellee to incur expenses to prevent his being dismissed from his job.
Fernando, J.: Concurring
Constitutional law; Religious freedom; Religious freedom stressed.—Religious freedom is
identified with the liberty every individual possesses to worship or not a Supreme Being, and if
a devotee of any sect, to any act in accordance with its creed. This is constitutionally
safeguarded, according to Justice Laurel, that “profession of faith to an active power that
binds and elevates man to his Creator * * *.” The choice of what a man wishes to believe in is
his and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to
which the law is denied entry, whatever be his thoughts or hopes. In that sphere, what he
wills reigns supreme. The doctrine to which he pays fealty may for some be unsupported by
evidence, devoid of rational foundation. No matter. There is no requirement as to its
conformity to what has found acceptance. It suffices that for him such a concept holds
undisputed sway. That is a recognition of man’s freedom. That for him is one of the ways of
self-realization. It would be to disregard the dignity that attaches to every human being to
deprive him of such an attribute. The “fixed star on our constitutional constellation,” to borrow
the felicitous phrase of Justice Jackson, is that no official, not excluding the highest, has it in
his power to prescribe what shall be orthodox in matters of conscience—or to mundane
affairs, for that matter.
Same; Same; Limitations on religious freedom cited.—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. There was this
qualification though: “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.”
Same; Same; Republic Act 3350 does not diminish protection to labor.—There is,
however, the question of whether such an exception possesses an implication that lessens the
effectiveness of state efforts to protect labor, likewise, as noted, constitutionally ordained.
Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis, it
cannot stand scrutiny. Thought must be given to the freedom of association, likewise an
aspect of intellectual liberty. For the late Professor Howe, a constitutionalist and in his lifetime
the biographer of the great Holmes, it even partakes of the political theory of pluralistic
sovereignty. So great is the respect for the autonomy accorded voluntary societies. Such a
right implies at the very least that one can determine for himself whether or not he should join
or refrain from joining a labor organization, an institutional device for promoting the welfare of
the working man. A closed shop, on the other hand, is inherently coercive. That is why, as is
unmistakably reflected in our decisions, the latest of which is Guijarno v. Court of Industrial
Relations, it is far from being a favorite of the law. For a statutory provision then to further
curtail its operation, is precisely to follow the dictates of sound public policy.
APPEAL from a decision of the Court of First Instance of Manila.
The facts are stated in the opinion of the Court.
     Salonga, Ordoñez, Yap, Sicat & Associates for plaintiff-appellee.
     Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.,:
Appeal to this Court on purely questions of law from the decision of the Court of First Instance
of Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow: Benjamin Victoriano
(hereinafter referred to as Appellee), a member of the religious sect known as the “Iglesia ni
Cristo”, had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as
Company) since 1958. As such employee, he was a member of the Elizalde Rope Workers’
Union (hereinafter referred to as Union) which had with the Company a collective bargaining
agreement containing a closed shop provision which reads as follows:
“Membership in the Union shall be required as a condition of employment for all permanent
employees workers covered by this Agreement.”
The collective bargaining agreement expired on March 3, 1964 but was renewed the following
day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by
Republic Act No. 3350, the employer was not precluded “from making an agreement with a
labor organization to require as a condition of employment membership therein, if such labor
organization is the representative of the employees.” On June 18, 1961, however, Republic Act
No. 3350 was enacted, introducing an amendment to paragraph (4) subsection (a) of section
4 of Republic Act No. 875, as follows: xxx “but such agreement shall not cover members of
any religious sects which prohibit affiliation of their members in any such labor organization”.
Being a member of a religious sect that prohibits the affiliation of its members with any
labor organization, Appellee presented his resignation to appellant Union in 1962, and when
no action was taken thereon, he reiterated his resignation on September 3, 1974. Thereupon,
the Union wrote a formal letter to the Company asking the latter to separate Appellee from
the service in view of the fact that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his counsel that unless the
Appellee could achieve a satisfactory arrangement with the Union, the Company would be
constrained to dismiss him from the service. This prompted Appellee to file an action for
injunction, docketed as Civil Case No. 58894 in the Court of First Instance of Manila to enjoin
the Company and the Union from dismissing Appellee.1 In its answer, the Union invoked the
“union security clause” of the collective bargaining agreement; assailed the constitutionality of
Republic Act No. 3350; and contended that the Court had no jurisdiction over the case,
pursuant to Republic Act No. 875, Sections 24 and 9 (d) and (e).2 Upon the facts agreed upon
by the parties during the pre-trial conference, the Court a quo rendered its decision on August
26,1965, the dispositive portion of which reads:
“IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope
Factory, Inc. from dismissing the plaintiff from his present employment and sentencing the
defendant Elizalde Rope Workers’ Union to pay the plaintiff P500 for attorney’s fees and the
costs of this action.”3
From this decision, the Union appealed directly to this Court on purely questions of law,
assigning the following errors:
“I.That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.
“II.That the lower court erred when it sentenced appellant herein to pay plaintiff the sum
of P500 as attorney’s fees and the cost thereof.”
In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented,
firstly, that the Act infringes on the fundamental right to form lawful associations; that “the
very phraseology of said Republic Act 3350, that membership in a labor organization is banned
to all those belonging to such religious sect prohibiting affiliation with any labor
organization”4, “prohibits all the members of a given religious sect from joining any labor
union if such sect prohibits affiliations of their members thereto”5; and, consequently,
deprives said members of their constitutional right to form or join lawful associations or
organizations guaranteed by the Bill of Rights, and thus becomes obnoxious to Article III,
Section 1 (6) of the 1935 Constitution.6
Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing
the obligation of contracts in that, while the Union is obliged to comply with its collective
bargaining agreement containing a “closed shop provision,” the Act relieves the employer from
its reciprocal obligation of cooperating in the maintenance of union membership as a condition
of employment; and that said Act, furthermore, impairs the Union’s rights as it deprives the
union of dues from members who, under the Act, are relieved from the obligation to continue
as such members.7
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those
religious sects which ban their members from joining labor unions, in violation of Article III,
Section 1 (7) of the 1935 Constitution; and while said Act unduly protects certain religious
sects, it leaves no rights or protection to labor organizations.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision
that “no religious test shall be required for the exercise of a civil right,” in that the laborer’s
exercise of his civil right to join associations for purposes not contrary to law has to be
determined under the Act by his affiliation with a religious sect; that conversely, if a worker
has to sever his religious connection with a sect that prohibits membership in a labor
organization in order to be able to join a labor organization, said Act would violate religious
freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the “equal protection of
laws” clause of the Constitution, it being a discriminatory legislation, inasmuch as by
exempting from the operation of closed shop agreement the members of the “Iglesia ni
Cristo”, it has granted said members undue advantages over their fellow workers, for while
the Act exempts them from union obligation and liability, it nevertheless entitles them at the
same time to the enjoyment of all concessions, benefits and other emoluments that the union
might secure from the employer.10
Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional
provision regarding the promotion of social justice.11
Appellant Union, furthermore, asserted that a “closed shop provision” in a collective
bargaining agreement cannot be considered violative of religious freedom, as to call for the
amendment introduced by Republic Act No. 3350;12 and that unless Republic Act No. 3350 is
declared unconstitutional, trade unionism in this country would be wiped out as employers
would prefer to hire or employ members of the Iglesia ni Cristo in order to do away with labor
organizations.13
Appellee, assailing appellant’s arguments, contended that Republic Act No. 3350 does not
violate the right to form lawful associations, for the right to join associations includes the right
not to join or to resign from a labor organization, if one’s conscience does not allow his
membership therein, and the Act has given substance to such right by prohibiting the
compulsion of workers to join labor organizations;14 that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated into, the terms of the
closed shop agreement;15 that the Act does not violate the establishment of religion clause or
separation of Church and State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its members from joining labor
unions, and balanced the collective rights of organized labor with the constitutional right of an
individual to freely exercise his chosen religion; that the constitutional right to the free
exercise of one’s religion has primacy and preference over union security measures which are
merely contractual16; that said Act does not violate the constitutional provision of equal
protection, for the classification of workers under the Act depending on their religious tenets is
based on substantial distinction, is germane to the purpose of the law, and applies to all the
members of a given class;17 that said Act, finally, does not violate the social justice policy of
the Constitution, for said Act was enacted precisely to equalize employment opportunities for
all citizens in the midst of the diversities of their religious beliefs.18
I. Before We proceed to the discussion of the first assigned al., 205 F 2d 58, and Wicks v.
Southern Pacific Co., D.C. Cal., 121 F. Supp. 454; Jenson v. Union Pacific R. Co., et al., 121F.
Supp. 454. error, it is necessary to premise that there are some thoroughly established
principles which must be followed in all cases where questions of constitutionality as obtains in
the instant case are involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a
reasonable doubt; that a law may work hardship does not render it unconstitutional; that if
any reasonable basis may be conceived which supports the statute, it will be upheld, and the
challenger must negate all possible bases; that the courts are not concerned with the wisdom,
justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution
in favor of the constitutionality of legislation should be adopted.19
1. Appellant Union’s contention that Republic Act No. 3350 prohibits and bans the
members of such religious sects that forbid affiliation of their members with labor unions from
joining labor unions appears nowhere in the wording of Republic Act No. 3350; neither can the
same be deduced by necessary implication therefrom. It is not surprising, therefore, that
appellant, having thus misread the Act, committed the error of contending that said Act is
obnoxious to the constitutional provision on freedom of association.
 Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1
(6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the
Constitution of 1973, provide that the right to form associations or societies for purposes not
contrary to law shall not be abridged. Section 3 of Republic Act No. 875 provides that
employees shall have the right to self-organization and to form, join of assist labor
organizations of their own choosing for the purpose of collective bargaining and to engage in
concerted activities for the purpose of collective bargaining and other mutual aid or protection.
What the Constitution and the Industrial Peace Act recognize and guarantee is the “right” to
form or join associations. Notwithstanding the different theories propounded by the different
schools of jurisprudence regarding the nature and contents of a “right”, it can be safely said
that whatever theory one subscribes to, a right comprehends at least two broad notions,
namely: first, liberty or freedom, Le., the absence of legal restraint, whereby an employee
may act for himself without being prevented by law; and second, power, whereby an
employee may, as he pleases, join or refrain from joining an association. It is, therefore, the
employee who should decide for himself whether he should join or not an association; and
should he choose to join, he himself makes up his mind as to which association he would join;
and even after he has joined, he still retains the liberty and the power to leave and cancel his
membership with said organization at any time.20 It is clear, therefore, that the right to join a
union includes the right to abstain from joining any union.21 Inasmuch as what both the
Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is
the “right” to join associations of his choice, it would be absurd to say that the law also
imposes, in the same breath, upon the employee the duty to join associations. The law does
not enjoin an employee to sign up with any association.
The right to refrain from joining labor organizations recognized by Section 3 of the
Industrial Peace Act is, however, limited. The legal protection granted to such right to refrain
from joining is withdrawn by operation of law, where a labor union and an employer have
agreed on a closed shop, by virtue of which the employer may employ only members of the
collective bargaining union, and the employees must continue to be members of the union for
the duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial
Peace Act, before its amendment by Republic Act No. 3350, provides that although it would be
an unfair labor practice for an employer “to discriminate in regard to hire or tenure of
employment or any term or condition of employment to encourage or discourage membership
in any labor organization” the employer is, however, not precluded “from making an
agreement with a labor organization to require as a condition of employment membership
therein, if such labor organization is the representative of the employees”. By virtue,
therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if any
person, regardless of his religious beliefs, wishes to be employed or to keep his employment,
he must become a member of the collective bargaining union. Hence, the right of said
employee not to join the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350
introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the
following proviso: “but such agreement shall not cover members of any religious sects which
prohibit affiliation of their members in any such labor organization”. Republic Act No. 3350
merely excludes ipso jure from the application and coverage of the closed shop agreement the
employees belonging to any religious sects which prohibit affiliation of their members with any
labor organization. What the exception provides, therefore, is that members of said religious
sects cannot be compelled or coerced to join labor unions even when said unions have closed
shop agreements with the employers; that in spite of any closed shop agreement, members of
said religious sects cannot be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining union. It is clear, therefore,
that the assailed Act, far from infringing the constitutional provision on freedom of association,
upholds and reinforces it. It does not prohibit the members of said religious sects from
affiliating with labor unions. It still leaves to said members the liberty and the power to
affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the
members of said religious sects prefer to sign up with the labor union, they can do so. If in
deference and fealty to their religious faith, they refuse to sign up, they can do so; the law
does not coerce them to join; neither does the law prohibit them from joining; and neither
may the employer or labor union compel them to join. Republic Act No. 3350, therefore, does
not violate the constitutional provision on freedom of association.
2. Appellant Union also contends that the Act is unconstitutional for impairing the
obligation of its contract, specifically, the “union security clause” embodied in its Collective
Bargaining Agreement with the Company, by virtue of which “membership in the union was
required as a condition for employment for all permanent employees workers”. This
agreement was already in existence at the time Republic Act No. 3350 was enacted on June
18, 1961, and it cannot, therefore, be deemed to have been incorporated into the agreement.
But by reason of this amendment, Appellee, as well as others similarly situated, could no
longer be dismissed from his job even if he should cease to be a member, or disaffiliate from
the Union, and the Company could continue employing him notwithstanding his disaffiliation
from the Union. The Act, therefore, introduced a change into the express terms of the union
security clause; the Company was partly absolved by law from the contractual obligation it had
with the Union of employing only Union members in permanent positions. It cannot be denied,
therefore, that there was indeed an impairment of said union security clause.
According to Black, any statute which introduces a change into the express terms of the
contract, or its legal construction, or its validity, or its discharge, or the remedy for its
enforcement, impairs the contract. The extent of the change is not material. It is not a
question of degree or manner or cause, but of encroaching in any respect on its obligation or
dispensing with any part of its force. There is an impairment of the contract if either party is
absolved by law from its performance.22 Impairment has also been predicated on laws which,
without destroying contracts, derogate from substantial contractual rights.23
It should not be overlooked, however, that the prohibition to impair the obligation of
contracts is not absolute and unqualified. The prohibition is general, affording a broad outline
and requiring construction to fill in the details. The prohibition is not to be read with literal
exactness like a mathematical formula, for it prohibits unreasonable impairment only.24 In
spite of the constitutional prohibition, the State continues to possess authority to safeguard
the vital interests of its people. Legislation appropriate to safeguarding said interests may
modify or abrogate contracts already in effect.25 For not only are existing laws read into
contracts in order to fix the obligations as between the parties, but the reservation of essential
attributes of sovereign power is also read into contracts as a postulate of the legal order. All
contracts made with reference to any matter that is subject to regulation under the police
power must be understood as made in reference to the possible exercise of that
power.26 Otherwise, important and valuable reforms may be precluded by the simple device
of entering into contracts for the purpose of doing that which otherwise may be prohibited.
The policy of protecting contracts against impairment presupposes the maintenance of a
government by virtue of which contractual relations are worthwhile—a government which
retains adequate authority to secure the peace and good order of society. The contract clause
of the Constitution must, therefore, be not only in harmony with, but also in subordination to,
in appropriate instances, the reserved power of the state to safeguard the vital interests of the
people. It follows that not all legislations, which have the effect of impairing a contract, are
obnoxious to the constitutional prohibition as to impairment, and a statute passed in the
legitimate exercise of police power, although it incidentally destroys existing contract rights,
must be upheld by the courts. This has special application to contracts regulating relations
between capital and labor which are not merely contractual, and said labor contracts, for
being impressed with public interest, must yield to the common good.27
In several occasions this Court declared that the prohibition against impairing the
obligations of contracts has no application to statutes relating to public subjects within the
domain of the general legislative powers of the state involving public welfare.28 Thus, this
Court also held that the Blue Sunday Law was not an infringement of the obligation of a
contract that required the employer to furnish work on Sundays to his employees, the law
having been enacted to secure the well-being and happiness of the laboring class, and being,
furthermore, a legitimate exercise of the police power.29
In order to determine whether legislation unconstitutionally impairs contract obligations,
no unchanging yardstick, applicable at all times and under all circumstances, by which the
validity of each statute may be measured or determined, has been fashioned,, but every case
must be determined upon its own circumstances. Legislation impairing the obligation of
contracts can be sustained when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are reasonable. Both the end sought
and the means adopted must be legitimate, i.e., within the scope of the reserved power of the
state construed in harmony with the constitutional limitation of that power.30
What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose
was to insure freedom of belief and religion, and to promote the general welfare by preventing
discrimination against those members of religious sects which prohibit their members from
joining labor unions, confirming thereby their natural, statutory and constitutional right to
work, the fruits of which work are usually the only means whereby they can maintain their
own life and the life of their dependents. It cannot be gainsaid that said purpose is legitimate.
The questioned Act also provides protection to members of said religious sects against two
aggregates of group strength from which the individual needs protection. The individual
employee, at various times in his working life, is confronted by two aggregates of power—
collective labor, directed by a union, and collective capital, directed by management. The
union, an institution developed to organize labor into a collective force and thus protect the
individual employee from the power of collective capital, is, paradoxically, both the champion
of employee rights, and a new source of their frustration. Moreover, when the Union interacts
with management, it produces yet a third aggregate of group strength from which the
individual also needs protection—the collective bargaining relationship.31
The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note
to House Bill No. 5859, which later became Republic Act No. 3350, as follows:
“It would be unthinkable indeed to refuse employing a person who, on account of his religious
beliefs and convictions, cannot accept membership in a labor organization although he
possesses all the qualifications for the job. This is tantamount to punishing such person for
believing in a doctrine he has a right under the law to believe in. The law would not allow
discrimination to flourish to the detriment of those whose religion discards membership in any
labor organization. Likewise, the law would not commend the deprivation of their right to work
and pursue a modest means of livelihood, without in any manner violating their religious faith
and/or belief.”32
It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose
—exempting the members of said religious sects from coverage of union security agreements
—is reasonable.
It may not be amiss to point out here that the free exercise of religious profession or belief
is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former.
The Supreme Court of the United States has also declared on several occasions that the rights
in the First Amendment, which include freedom of religion, enjoy a preferred position in the
constitutional system.33 Religious freedom, although not unlimited, is a fundamental personal
right and liberty,34 and has a preferred position in the hierarchy of values. Contractual rights,
therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest extent necessary
to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is unconstitutional,
appellant Union averred that said Act discriminates in favor of members of said religious sects
in violation of Section 1 (7) of Article III of the 1935 Constitution, and which is now Section 8
of Article IV of the 1973 Constitution, which provides:
“No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious profession and worship, without
discrimination and preference, shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.”
The constitutional provision into only prohibits legislation for the support of any religious
tenets or the modes of worship of any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of worship,35 but also assures the free
exercise of one’s chosen form of religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good.36 Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as being only indirect.37 But if the
stage regulates conduct by enacting, within its power, a general law which has for its purpose
and effect to advance the state’s secular goals, the statute is valid despite its indirect burden
on religious observance, unless the state can accomplish its purpose without imposing such
burden.38
In Aglipay v. Ruiz39, this Court had occasion to state that the government should not be
precluded from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect. It has likewise been held that the statute, in order to
withstand the strictures of constitutional prohibition, must have a secular legislative purpose
and a primary effect that neither advances nor inhibits religion.40 Assessed by these criteria,
Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the “no-
establishment” (of religion) clause of the Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or
religious or holy and eternal. It was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be refused
work, or be dismissed from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union security agreements. To
help its citizens to find gainful employment whereby they can make a living to support
themselves and their families is a valid objective of the state. In fact, the state is enjoined, in
the 1935 Constitution, to afford protection to labor, and regulate the relations between labor
and capital and industry.41 More so now in the 1973 Constitution where it is mandated that
“the State shall afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race or creed and regulate
the relation between workers and employers.”42
The primary effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor organization, is the
protection of said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious beliefs; and by
eliminating to a certain extent economic insecurity due to unemployment, which is a serious
menace to the health, morals, and welfare of the people of the State, the Act also promotes
the well-being of society. It is our view that the exemption from the effects of closed shop
agreement does not directly advance, or diminish, the interests of any particular religion.
Although the exemption may benefit those who are members of religious sects that prohibit
their members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect. The “establishment clause” (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or harmonize with the tenets of
some or all religions.43 The free exercise clause of the Constitution has been interpreted to
require that religious exercise be preferentially aided.44
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the
spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by union security agreements. It was Congress
itself that imposed that burden when it enacted the Industrial Peace Act (Republic Act 875),
and, certainly, Congress, if it so deems advisable, could take away the same burden. It is
certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scrupples of conscience, exemptions ought to be granted unless
some “compelling state interest” intervenes.45 In the instant case, We see no such compelling
state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of certain religious
sects, it leaves no right to, and is silent as to the protection of, labor organizations. The
purpose of Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor
unions are amply provided for in Republic Act No. 875 and the new Labor Code. As to the
lamented silence of the Act regarding the rights and protection of labor unions, suffice it to
say, first, that the validity of a statute is determined by its provisions, not by its silence46;
and, second, the fact that the law may work hardship does not render it unconstitutional.47
It would not be amiss to state, regarding this matter, that to compel persons to join and
remain members of a union to keep their jobs in violation of their religious scrupples, would
hurt, rather than help, labor unions. Congress has seen it fit to exempt religious objectors lest
their resistance spread to other workers, for religious objections have contagious potentialities
more than political and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to the country, and a
fortiori to a labor union—assuming that such unity and loyalty can be attained through
coercion—is not a goal that is constitutionally obtainable at the expense of religious
liberty.48 A desirable end cannot be promoted by prohibited means.
4. Appellants’ fourth contention, that Republic Act No. 3350 violates the constitutional
prohibition against requiring a religious test for the exercise of a civil right or a political right,
is not well taken. The Act does not require as a qualification, or condition, for joining any
lawful association membership in any particular religion or in any religious sect; neither does
the Act require affiliation with a religious sect that prohibits its members from joining a labor
union as a condition or qualification for withdrawing from a labor union. Joining or
withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts
members with such religious affiliation from the coverage of closed shop agreements. So,
under this Act, a religious objector is not required to do a positive act—to exercise the right to
join or to resign from the union. He is exempted ipso jure without need of any positive act on
his part. A conscientious religious objector need not perform a positive act or exercise the
right of resigning from the labor union—he is exempted from the coverage of any closed shop
agreement that a labor union may have entered into. How then can there be a religious test
required for the exercise of a right when no right need be exercised?
We have said that it was within the police power of the State to enact Republic Act No.
3350, and that its purpose was legal and in consonance with the Constitution. It is never an
illegal evasion of a constitutional provision or prohibition to accomplish a desired result, which
is lawful in itself, by discovering or following a legal way to do it.49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory
legislation, inasmuch as it grants to the members of certain religious sects undue advantages
over other workers, thus violating Section 1 of Article III of the 1935 Constitution which
forbids the denial to any person of the equal protection of the laws.50
The guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different.51 It
does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality.52 The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality.53 All that is required of a valid classification is that
it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to
each member of the class.54 This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.55
In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of
discretion.56 It is not necessary that the classification be based on scientific or marked
differences of things or in their relation.57 Neither is it necessary that the classification be
made with mathematical nicety.58 Hence legislative classification may in many cases properly
rest on narrow distinctions,59 for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as
they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act
classifies employees and workers, as to the effect and coverage of union shop security
agreements, into those who by reason of their religious beliefs and convictions cannot sign up
with a labor union, and those whose religion does not prohibit membership in labor unions.
The classification rests on real or substantial, not merely imaginary or whimsical, distinctions.
There is such real distinction in the beliefs, feelings and sentiments of employees. Employees
do not believe in the same religious faith and different religions differ in their dogmas and
cannons. Religious beliefs, manifestations and practices, though they are found in all places,
and in all times, take so many varied forms as to be almost beyond imagination. There are
many views that comprise the broad spectrum of religious beliefs among the people. There
are diverse manners in which beliefs, equally paramount in the lives of their possessors, may
be articulated. Today the country is far more heterogenous in religion than before, differences
in religion do exist, and these differences are important and should not be ignored.
Even from the phychological point of view, the classification is based on real and important
differences. Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for
they carry with them practical consequences and are the motives of certain rules of human
conduct and the justification of certain acts.60 Religious sentiment makes a man view things
and events in their relation to his God. It gives to human life its distinctive character, its tone,
its happiness, or unhappiness, its enjoyment or irksomeness. Usually, a strong and passionate
desire is involved in a religious belief. To certain persons, no single factor of their experience
is more important to them than their religion, or their not having any religion. Because of
differences in religious belief and sentiments, a very poor person may consider himself better
than the rich, and the man who even lacks the necessities of life may be more cheerful than
the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs,
became resigned to the inevitable and accepted cheerfully even the most painful and
excruciating pains. Because of differences in religious beliefs, the world has witnessed turmoil,
civil strife, persecution, hatred, bloodshed and war, generated to a large extent by members
of sects who were intolerant of other religious beliefs. The classification, introduced by
Republic Act No. 3350, therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The purpose of the
law is precisely to avoid those who cannot, because of their religious belief, join labor unions,
from being deprived of their right to work and from being dismissed from their work because
of union shop security agreements. Republic Act No. 3350, furthermore, is not limited in its
application to conditions existing at the time of its enactment. The law does not provide that it
is to be effective for a certain period of time only. It is intended to apply for all times as long
as the conditions to which the law is applicable exist. As long as there are closed shop
agreements between an employer and a labor union, and there are employees who are
prohibited by their religion from affiliating with labor unions, their exemption from the
coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from
its provision.
The fact that the law grants a privilege to members of said religious sects cannot by itself
render the Act unconstitutional, for as We have adverted to, the Act only restores to them
their freedom of association which closed shop agreements have taken away, and puts them
in the same plane as the other workers who are not prohibited by their religion from joining
labor unions. The circumstance, that the other employees, because they are differently
situated, are not granted the same privilege, does not render the law unconstitutional, for
every classification allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual inequality is not
violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered
invalid. A classification otherwise reasonable does not offend the constitution simply because
in practice it results in some inequality.61 Anent this matter, it has been said that whenever it
is apparent from the scope of the law that its object is for the benefit of the public and the
means by which the benefit is to be obtained are of public character, the law will be upheld
even though incidental advantage may occur to individuals beyond those enjoyed by the
general public.62
6. Appellant’s further contention that Republic Act No. 3350 violates the constitutional
provision on social justice is also baseless. Social justice is intended to promote the welfare of
all the people.63 Republic Act No. 3350 promotes that welfare insofar as it looks after the
welfare of those who, because of their religious belief, cannot join labor unions; the Act
prevents their being deprived of work and of the means of livelihood. In determining whether
any particular measure is for public advantage, it is not necessary that the entire state be
directly benefited—it is sufficient that a portion of the state be benefited thereby.
Social justice also means the adoption by the Government of measures calculated to insure
economic stability of all component elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the members of the
community.64 Republic Act No. 3350 insures economic stability to the members of a religious
sect, like the Iglesia ni Cristo, who are also component elements of society, for it insures
security in their employment, notwithstanding their failure to join a labor union having a
closed shop agreement with the employer. The Act also advances the proper economic and
social equilibrium between labor unions and employees who cannot join labor unions, for it
exempts the latter from the compelling necessity of joining labor unions that have closed shop
agreements, and equalizes, in so far as opportunity to work is concerned, those whose religion
prohibits membership in labor unions with those whose religion does not prohibit said
membership. Social justice does not imply social equality, because social inequality will always
exist as long as social relations depend on personal or subjective proclivities. Social justice
does not require legal equality because legal equality, being a relative term, is necessarily
premised on differentiations based on personal or natural conditions.65 Social justice
guarantees equality of opportunity66, and this is precisely what Republic Act No. 3350
proposes to accomplish—it gives laborers, irrespective of their religious scrupples, equal
opportunity for work.
7. As its last ground, appellant contends that the amendment introduced by Republic Act
No. 3350 is not called for—in other words, the Act is not proper, necessary or desirable. Anent
this matter, it has been held that a statute which is not necessary is not, for that reason,
unconstitutional; that in determining the constitutional validity of legislation, the courts are
unconcerned with issues as to the necessity for the enactment of the legislation in
question.67 Courts do inquire into the wisdom of laws.68 Moreover, legislatures, being chosen
by the people, are presumed to understand and correctly appreciate the needs of the people,
and it may change the laws accordingly.69 The fear is entertained by appellant that unless the
Act is declared unconstitutional, employers will prefer employing members of religious sects
that prohibit their members from joining labor unions, and thus be a fatal blow to unionism.
We do not agree. The threat to unionism will depend on the number of employees who are
members of the religious sects that control the demands of the labor market. But there is
really no occasion now to go further and anticipate problems We cannot judge with the
material now before Us. At any rate, the validity of a statute is to be determined from its
general purpose and its efficacy to accomplish the end desired, not from its effects on a
particular case.70 The essential basis for the exercise of power, and not a mere incidental
result arising from its exertion, is the criterion by which the validity of a statute is to be
measured.71
II. We now pass on the second assignment of error, in support of which the Union argued
that the decision of the trial court ordering the Union to pay P500 for attorney’s fees directly
contravenes Section 24 of Republic Act No. 875, for the instant action involves an industrial
dispute wherein the Union was a party, and said Union merely acted in the exercise of its
rights under the union shop provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil Code; that, furthermore,
Appellee was never actually dismissed by the defendant Company and did not therefore suffer
any damage at all.72
In refuting appellant Union’s arguments, Appellee claimed that in the instant case there
was really no industrial dispute involved in the attempt to compel Appellee to maintain its
membership in the union under pain of dismissal, and that the Union, by its act, inflicted
intentional harm on Appellee; that since Appellee was compelled to institute an action to
protect his right to work, appellant could legally be ordered to pay attorney’s fees under
Articles 1704 and 2208 of the Civil Code.73
The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by
appellant provides that:
“No suit, action or other proceedings shall be maintainable in any court against a labor
organization or any officer or member thereof for any act done by or on behalf of such
organization in furtherance of an industrial dispute to which it is a party, on the ground only
that such act induces some other person to break a contract of employment or that it is in
restraint of trade or interferes with the trade, business or employment of some other person
or with the right of some other person to dispose of his capital or labor.” (Emphasis supplied)
That there was a labor dispute in the instant case cannot be disputed for appellant sought the
discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of
Republic Act No. 875 a question involving tenure of employment is included in the term “labor
dispute”.74 The discharge or the act of seeking it is the labor dispute itself. It being the labor
dispute itself, that very same act of the Union in asking the employer to dismiss Appellee
cannot be “an act done xxx in furtherance of an industrial dispute”. The mere fact that
appellant is a labor union does not necessarily mean that all its acts are in furtherance of an
industrial dispute.75 Appellant Union, therefore, cannot invoke in its favor Section 24 of
Republic Act No. 875. This case is not intertwined with any unfair labor practice case existing
at the time when Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The
article provides that attorney’s fees and expenses of litigation may be awarded “when the
defendant’s act or omission has compelled the plaintiff x x x to incur expenses to protect his
interest’) and “in any other case where the court deems it just and equitable that attorney’s
fees and expenses of litigation should be recovered”. In the instant case, it cannot be gainsaid
that appellant Union’s act in demanding Appellee’s dismissal caused Appellee to incur
expenses to prevent his being dismissed from his job. Costs according to Section 1, Rule 142,
of the Rules of Court, shall be allowed as a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of
the Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed,
with costs against appellant Union.
It is so ordered.
      Makalintal C.J., Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz
Palma and Aquino, JJ., concur.
     Fernando, J., concurs fully and submits a brief separate opinion.
     Fernandez, J., did not take part because he was co-author, when he was a Senator,
of Rep. Act No. 3350.
FERNANDO, J., concurring:
The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the
constitutional infirmities imputed to it was demonstrated in a manner well-nigh conclusive in
the learned, scholarly, and comprehensive opinion so typical of the efforts of
the ponente, Justice Zaldivar. Like the rest of my brethren, I concur fully. Considering
moreover, the detailed attention paid to each and every objection raised as to its validity and
the clarity and persuasiveness with which it was shown to be devoid of support in
authoritative doctrines, it would appear that the last word has been written on this particular
subject. Nonetheless, I deem it proper to submit this brief expression of my views on the
transcendent character of religious freedom1 and its primacy even as against the claims of
protection to labor,2 also one of the fundamental principles of the Constitution.
1. Religious freedom is identified with the liberty every individual possesses to worship or
not a Supreme Being, and if a devotee of any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that “profession of faith to an active
power that binds and elevates man to his Creator * * *.”3 The choice of what a man wishes to
believe in is his and his alone. That is a domain left untouched, where intrusion is not allowed,
a citadel to which the law is denied entry, whatever be his thoughts or hopes. In that sphere,
what he wills reigns supreme. The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation. No matter. There is no requirement
as to its conformity to what has found acceptance. It suffices that for him such a concept
holds undisputed sway. That is a recognition of man’s freedom. That for him is one of the
ways of self-realization. It would be to disregard the dignity that attaches to every human
being to deprive him of such an attribute. The “fixed star on our constitutional constellation,”
to borrow the felicitous phrase of Justice Jackson, is that no official, not excluding the highest,
has it in his power to prescribe what shall be orthodox in matters of conscience—or to
mundane affairs, for that matter.
Gerona v. Secretary of Education4 speaks similarly. In the language of its ponente, Justice
Montemayor: “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.”5 There was this qualification though: “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.”6 It was on that basis
that the daily compulsory flag ceremony in accordance with a statute7 was found free from
the constitutional objection on the part of a religious sect, the Jehovah’s Witnesses, whose
members alleged that their participation would be offensive to their religious beliefs. In a case
not dissimilar, West Virginia State Board of Education v. Barnette,8 the American Supreme
Court reached a contrary conclusion. Justice Jackson’s eloquent opinion is, for this writer,
highly persuasive. Thus: “The case is made difficult not because the principles of its decision
are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of
the Constitution with no fear that freedom to be intellectually and spiritually diverse or even
contrary will disintegrate the social organization. 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. We can have
intellectual individualism and the rich cultural diversities that we owe to exceptional minds only
at the price of occasional eccentricity and abnormal attitudes. When they 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.”9 There is moreover this ringing affirmation by Chief Justice Hughes of the
primacy of religious freedom in the forum of conscience even as against the command of the
State itself: “Much has been said of the paramount duty to the state, a duty to be recognized,
it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to
the state exists within the domain of power, for government may enforce obedience to laws
regardless of scruples. When one’s belief collides with the power of the state, the latter is
supreme within its sphere and submission or punishment follows. But, in the forum of
conscience, duty to a moral power higher than the state has always been maintained. The
reservation of that supreme obligation, as a matter of principle, would unquestionably be
made by many of our conscientious and law-abiding citizens. The essence of religion is belief
in a relation to God involving duties superior to those arising from any human relation.”10 The
American Chief Justice spoke in dissent, it is true, but with him in agreement were three of the
foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.
2. As I view Justice Zaldivar’s opinion in that light, my concurrence, as set forth earlier, is
wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a
message that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase
Cardozo, a fundamental principle that drowns all weaker sounds. The labored effort to cast
doubt on the validity of the statutory provision in question is far from persuasive. It is
attended by futility. It is not for this Court, as I conceive of the judicial function, to restrict the
scope of a preferred freedom.
3. There is, however, the question of whether such an exception possesses an implication
that lessens the effectiveness of state efforts to protect labor, likewise, as noted,
constitutionally ordained. Such a view, on the surface, may not be lacking in plausibility, but
upon closer analysis, it cannot stand scrutiny. Thought must be given to the freedom of
association, likewise an aspect of intellectual liberty. For the late Professor Howe, a
constitutionalist and in his lifetime the biographer of the great Holmes, it even partakes of the
political theory of pluralistic sovereignty. So great is the respect for the autonomy accorded
voluntary societies.11 Such a right implies at the very least that one can determine for himself
whether or not he should join or refrain from joining a labor organization, an institutional
device for promoting the welfare of the working man. A closed shop, on the other hand, is
inherently coercive. That is why, as is unmistakably reflected in our decisions, the latest of
which is Guijarno v. Court of Industrial Relations,12 it is far from being a favorite of the law.
For a statutory provision then to further curtail its operation, is precisely to follow the dictates
of sound public policy.

The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream
of constitutional tradition. That, for me, is the channel to follow.

Appeal dismissed, and decision affirmed.

Notes.—Effects of Closed-Shop Agreements.—Where the union shop agreement requires

new employees to join the union and it provides that, should they later resign or be expelled
from the contracting union, the company would immediately dismiss them, said stipulation,
‘cannot be extended to old workers. San Carlos Milling Co., Inc. vs. Court of Industrial
Relations, L-15453 & L-15723, March 17, 1961, 1 SCRA 734.

Union shop with closed shop provisions should be strictly construed against the existence
of union shop.

The employer, in separating some of its employees from the service because of their
refusal to disaffiliate from a labor union and join one which had a collective bargaining
agreement with it, acted in good faith because the view then prevailing in the light of
American jurisprudence, but which no longer holds water, was that a closed-shop agreement
applied not only to persons to be hired but also to those already in the service who were
members of another union. Findlay Miller Timber Co. vs. Philippine Land-Air-Sea Labor
Union, L-18217 & L-18222, Sept. 29, 1962, 6 SCRA 227.

The provision in the closed-shop agreement to the effect that the watchmen agency shall
hire no other watchmen but members of the Union during the duration of the agreement
cannot operate retroactively so as to compel those already employed to join the union favored
by the closed-shop provision. United States Lines Co. vs. Associated Watchmen and Security
Union, L-15508, June 29, 1963, 8 SCRA 326.

——o0o——
 G.R. No. 95770. March 1, 1993.* ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO
and ESTRELLITA CABUYAO, NOEMITURNO represented by her parents MANUEL TURNO and
VEVENCIA TURNO; SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
PALATULON, represented by their parents MARTILLANO PALATULON and CARMILA
LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS
PALATULON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and
TANTOG; JEMIL OYAO & JOEL OYAO, represented by their parents MR. & MRS.
ANTONIO A. SANGUTAN, respondents.
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents
MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented
Constitutional Law; Religious Freedom; Nature thereof.—Religious freedom is a
by their parents MR. & MRS. FAUSTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO,
fundamental right which is entitled to the highest priority and the amplest protection among
represented by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO,
human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M.
represented by his parents MR. & MRS. MANUEL TANACAO, PRECILA PINO,
Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).
represented by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA
ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR;
Same; Same; Same; Two-fold aspect of right to religious profession and
FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents
worship; Scope.—The right to religious profession and worship has a two-fold aspect, vis.,
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents
freedom to believe and freedom to act on one's belief. The first is absolute as long as the
MR. & MRS. GENEROSO ALFAR; MARTINO VILLAR, represented by his parents MR.
belief is confined within the realm of thought. The second is subject to regulation where the
& MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA, represented
belief is translated into external acts that affect the public welfare" (J. Cruz, Constitutional Law
by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his
1991 Ed pp 176-177).
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents
MR. & MRS. RENE LAUDE; LEOREMINDA MONARES, represented by her parents,
Same; Same; Same; Prior restraint or limitation on the exercise of religious freedom,
MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO, represented by her
sole justification thereof, explained.—"The sole justification for a prior restraint or limitation on
parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, represented by
the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his
his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA, represented
dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave
by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG,
and present danger of a character both grave and imminent, of a serious evil to public safety,
represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON,
public morals, public health or any other legitimate public interest', that the State has a right
GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL
(and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners
CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR.
from the schools is not justified.
& MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE
SARSOZO, represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL
Same; Same; Freedom of Speech; Administrative Code; Flag Salute Law; Compulsion to
JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON
observe flag salute law on pain of dismissal from one's job or expulsion from school is alien to
TABLASON & MASTERLOU TABLASON, represented by their parent EMERLITO
the conscience of present generation of Filipinos, being violative of their constitutional rights
TABLASON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
to free speech and free exercise of religious profession and worship.—Our task here is
CEBU, respondent.
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
G.R. No. 95887. March 1, 1993.* trifled with. It is somewhat ironic however, that after the Gerona ruling had received
legislative cachet by its incorporation in the Administrative Code of 1987, the present Court
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, believes that the time has come to reexamine it. The idea that one may be compelled to
JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag
ALSADO; NESIA ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their parents ceremony on pain of being dismissed from one's job or of being expelled from school, is alien
MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her parents ISMAILITO to the conscience of the present generation of Filipinos who cut their teeth on the Bill of
NAPOLES and OPHELIA NAPOLES; JESICA CARMELOTES, represented by her parents MR. & Rights which guarantees their rights to free speech and the free exercise of religious
MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her parents MR. & MRS. profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973
TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL Constitution; Article III, Section 1[7], 1935 Constitution).
ALSADO; RAQUEL DEMOTOR and LEAH DEMOTOR, represented by their parents MR. & MRS.
LEONARDO DEMOTOR; JURELL VILLA and MELONEY VILLA, represented by their parents MR. Same; Same; Same; Same; Same; Jehovah's witnesses are accorded exemption to the
& MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE MAHINAY and observance of flag ceremony in deference to their religious beliefs but said right not to
MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY; JONALYN participate in the flag ceremony does not give them the right to disrupt such patriotic
ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE ANTIOLA and ANECITA exercises.—Exemption may be accorded to the Jehovah's Witnesses with regard to the
observance of the flag ceremony out of respect for their religious beliefs, however "bizarre"
those beliefs may seem to others. Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the
warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard
must be afforded their right to the free exercise of their religion, "this should not be taken to
mean that school authorities are powerless to discipline them" if they should commit breaches
of the peace by actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their classmates and
teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not
see how such conduct may possibly disturb the peace, or pose "a grave and present danger of
a serious evil to public safety, public morals, public health or any other legitimate public
interest that the State has a right (and duty) to prevent" (German vs. Barangan, 135 SCRA
514, 517).
Same; Same; Same; Same; Same; Right to free education; Expulsion from school by
reason of one's religious belief considered a violation of a citizen's right to free education. —
Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are
enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive
free education, for it is the duty of the State to "protect and promote the right of all citizens to
quality education x x x and to make such education accessible to all" (Sec. 1, Art. XIV).
Same; Same; Same; Same; Same; Same; To force a religious group, through statutory
compulsion, to participate in a ceremony violative of its religious belief is not conducive to love
of country or respect for duly constituted authorities. —Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court had feared
in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love of country or
respect for duly constituted authorities.
SPECIAL CIVIL ACTIONS for certiorari, mandamus and prohibition to annul and set aside the
orders of the Division Superintendent of Schools of Cebu.
The facts are stated in the opinion of the Court.
     Felino M. Ganal for petitioners.
     The Solicitor General for respondents.
GRIÑO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and Prohibition were consolidated
because they raise essentially the same issue: whether school children who are members of a
religious sect known as Jehovah's Witnesses may be expelled from school (both public and
private), for refusing, on account of their religious beliefs, to take part in the flag ceremony
which includes playing (by a band) or singing the Philippine national anthem, saluting the
Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770, "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu
and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school 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
Iowered at sunset. The flagstaff must be straight, slightly and gently tapering at the
end, and of such height as would give the Flag a commanding position in front of
the building or within the compound.
. "2.Every public and private educational institution shall hold a flag-raising ceremony
every morning except when it is raining, in which event the ceremony may be
conducted indoors in the best way possible. A retreat shall be held in the afternoon
 of the same day. The flag-raising ceremony in the morning shall be conducted in the
following manner:
. "a.Pupils and teachers or students and faculty members who are in school and its
premises shall assemble in formation facing the flag. At command, books shall be
put away or held in the left hand and everybody shall come to attention.  Those with
hats shall uncover. No one shall enter or leave the school grounds during the
ceremony.
. "b.The assembly shall sing the Philippine National Anthem accompanied by the
school band or without the accompaniment if it has none; or the anthem may be
played by the school band alone. At the first note of the Anthem, the flag shall be
raised briskly. While the flag is being raised, all persons present shall stand at
attention and execute a salute. Boys and men with hats shall salute by placing the
hat over the heart. Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform shall give the salute
prescribed by their regulations. The salute shall be started as the Flag rises, and
completed upon last note of the anthem.
. "c.Immediately following the singing of the Anthem, the assembly shall recite in
unison the following patriotic pledge (English or vernacular version), which may
bring the ceremony to a close. This is required of all public schools and of private
schools which are intended for Filipino students or whose population is
predominantly Filipino.
"English Version"
I love the Philippines,
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.
xxx      xxx      xxx."
Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or
"religious devotion" (p. 10, Rollo) which they "cannot conscientiously give x x x to anyone or
anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard
ourselves from idols—1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol
representing the State (p. 10, Rollo). They think the action of the local authorities in
compelling the flag salute and pledge transcends constitutional limitations on the State's
power and invades the sphere of the intellect and spirit which the Constitution protects against
official control (p. 10, Rollo).
This is not the first time that the question, of whether the children of Jehovah's Witnesses
may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8,
series of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106
Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education,  110 Phil. 150 (1960). This Court
in the Gerona case upheld the expulsion of the students, thus:
"The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which it and
the Constitution guarantee and protect. Under a system of complete separation of church and
state in the government, the flag is utterly devoid of any religious significance. Saluting the
flag does not involve any religious ceremony. The flag salute is no more a religious ceremony
than the taking of an oath of office by a public official or by a candidate for admission to the
bar."
"In requiring school pupils to participate in the flag salute, the State thru the Secretary of
Education is not imposing a religion or religious belief or a religious test on said students. It is
merely enforcing a non-discriminatory school regulation applicable to all alike whether
Christian, Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the duty
imposed upon it by the Constitution which charges it with supervision over and regulation of
all educational institutions, to establish and maintain a complete and adequate system of
public education, and see to it that all schools aim to develop, among other things, civic
conscience and teach the duties of citizenship."
"The children of Jehovah's Witnesses cannot be exempted from participation in the flag
ceremony. They have no valid right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize the rest of the school population
which by far constitutes the great majority."
"The freedom of religious belief guaranteed by the Constitution does not and cannot mean
exemption from or non-compliance with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority." (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
"The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to
promulgate said Department Order, and its provisions requiring the observance of the flag
salute, not being a religious ceremony but an act and profession of love and allegiance and
pledge of loyalty to the fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion." (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil.
150.)
Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI,
Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official Gazette, Vol. 83, No. 38 of
September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling
in Gerona, thus:
"5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may
be dismissed after due investigation."
However, the petitioners herein have not raised in issue the constitutionality of the above
provision of the new Administrative Code of 1987. They have targeted only Republic Act No.
1265 and the implementing orders of the DECS.
In 1989, the DECs Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who
refused to sing the Philippine national anthem, salute the Philippine flag and recite the
patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division
of DECS, and Dr./Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this
Court's decision in Gerona, issued Division Memorandum No. 108, dated November 17, 1989
(pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals
and Heads of Private Educational institutions as follows:
. "1.Reports reaching this Office disclose that there are a number of teachers, pupils,
students, and school employees in public schools who refuse to salute the Philippine
flag or participate in the daily flag ceremony because of some religious belief.
. "2.Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations) but
also strikes at the heart of the DECS sustained effort to inculcate patriotism and
nationalism.
. "3.Let it be stressed that any belief that considers the flag as an image is not in any
manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippines says:
" 'The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and freedom and liberty which it and the
Constitution guarantee and protect.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)
. "4.As regards the claim for freedom of belief, which an objectionist may advance,
the Supreme Court asserts:
"But between the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the latter.' (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 11.)
. "5.Accordingly, teachers and school employees who choose not to participate in the
daily flag ceremony or to obey the flag salute regulation spelled out in Department
Order No. 8, Series of 1955, shall be considered removed from the service after due
process.
. "6.In strong language about pupils and students who do the same the Supreme
Court has this to say:
" 'lf they choose not to obey the flag salute regulation, they merely lost the benefits of public
education being maintained at the expense of their fellow Citizens, nothing more. According to
a popular expression, they could take it or leave it! Having elected not to comply with the
regulation about the flag salute they forfeited their right to attend public schools.' (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 15.)
. "7.School administrators shall therefore submit to this Office a report on those who
choose not to participate in flag ceremony or salute the Philippine flag." (pp. 147-
148, Rollo of G.R. No. 95770; Italics supplied.)
Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were
asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the national
anthem, place their right hand on their breast until the end of the song and recite the pledge
of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with
the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from
which reveal the following:
"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's lawful regulations in
question do not warrant exemption of the school children of the Jehovah's Witnesses
from the flag salute ceremonies on the basis of their own self-perceived religious
convictions.
. 5.The issue is not freedom of speech but enforcement of law and jurisprudence.
. 6.State's power to regulate repressive and unlawful religious practices justified,
besides having scriptural basis.
. 7.The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).
Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of students who refuse to
obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling
 270
270 SUPREME COURT REPORTS ANNOTATED
Ebralinag vs. The Division Superintendent of Schools of Cebu
had received legislative cachet by its incorporation in the Administrative Code of 1987, the
present Court believes that the time has come to reexamine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during
a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is
alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of
Rights which guarantees their rights to free speech** and the free exercise of religious
profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973
Constitution; Article III, Section 1[7], 1935 Constitution.
Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his Creator
(Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514,
530-531).
"The right to religious profession and worship has a twofold aspect, vis., freedom to
believe and freedom to act on one's belief. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the belief is
translated into external acts that affect the public welfare" (J. Cruz, Constitutional Law, 1991
Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the compulsory flag
ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance of the flag
ceremony. They quietly stand at attention during the flag ceremony to show their respect for
the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R.
No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive
behavior, there is no warrant for their expulsion.
"The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to prevent." Absent such
a threat to public safety, the expulsion of the petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:
"[T]he flag ceremony will become a thing of the past or perhaps conducted with very few
participants, and the time will come when we would have citizens untaught and uninculcated
in and not imbued with reverence for the flag and love of country, admiration for national
heroes, and patriotism—a pathetic, even tragic situation, and all because a small portion of
the school population imposed its will, demanded and was granted an exemption." (Gerona, p.
24.)
has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious
group which admittedly comprises a "small portion of the school population" will shake up our
part of the globe and suddenly produce a nation " untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and admiration for national heroes"
(Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a vocation or
profession and be taught the virtues of "patriotism, respect for human rights, appreciation for
national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2],
Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this court had feared
in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love of country or
respect for duly constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):
"x x x To believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal
of our institutions to free minds. x x x When they [diversity] are so harmless to others or to
the State as those we deal with here, the price is not too great. But freedom to differ is not
limited to things that do not matter much. That would be a mere shadow of freedom. The test
of its substance is the right to differ as to things that touch the heart of the existing order."
"Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x—
assuming that such unity and loyalty can be attained through coercion—is not a goal that is
constitutionally obtainable at the expense of religious liberty. A desirable end cannot be
promoted by prohibited means." (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)
Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are
enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive
free education, for it is the duty of the State to "protect and promote the right of all citizens to
quality education x x x and to make such education accessible to all" (Sec. 1 Art XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement
between their employer and a union because it would violate the teaching of their church not
to join any labor group:
"x x x It is certain that not every conscience can be accommodated by all the laws of the land; ASIDE. The temporary restraining order which was issued by this Court is hereby made
but when general laws conflict with scruples of conscience, exemptions ought to be granted permanent.
unless some 'compelling state interests' intervenes." (Sherbert vs Berner 374 U.S. 398, 10 L.
Ed. 2d 965, 970, 83 S. Ct. 1790.)" SO ORDERED.

We hold that a similar exemption may be accorded to the

     Narvasa, (C.J.), Feliciano, Bidin, Regalado, Davide,
273 Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

     Gutierrez, Jr., J., On leave.

VOL. 219, MARCH 1, 1993 273

     Cruz, J., See concurrence.

Ebralinag vs. The Division Superintendent of Schools of Cebu

     Padilla, J., See separate opinion.

Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for      Quiason, J., No part.
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 CRUZ, J., Concurring:
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
I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
discipline them" if they should commit breaches of the peace by actions that offend the
affirmation of a vital postulate of freedom. I would only add my brief observations concerning
sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention
Gerona v. Secretary of Education.
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 In my humble view, Gerona was based on an erroneous assumption. The Court that
morals, public health or any other legitimate public interest that the State has a right (and promulgated it was apparently laboring under the conviction that the State had the right to
duty) to prevent" (German vs. Barangan, 135 SCRA 514, 517). determine what was religious and what was not and to dictate to the individual what he could
and could not worship. In pronouncing that the flag was not a religious image but a symbol of
the nation, it was implying that no one had the right to worship it or—as the petitioners
Before we close this decision, it is appropriate to recall the Japanese occupation of our
insisted—not to worship it. This was no different from saying that the cult that reveres Rizal as
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the
a divinity should not and cannot do so because he is only a civic figure deserving honor but
invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if
not veneration.
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 It seems to me that every individual is entitled to choose for himself whom or what to
pride and joy over the newly-regained freedom and sovereignty of our nation. worship or whether to worship at all. This is a personal decision he alone can make. The
individual may worship a spirit or a person or a beast or a tree (or a flag) and the State cannot
prevent him from doing so. For that matter, neither can it compel him to do so. As long as his
Although the Court upholds in this decision the petitioners' right under our Constitution to
beliefs are not externalized in acts that offend the public interest, he cannot be prohibited
refuse to salute the Philippine flag on account of their religious beliefs, we hope, nevertheless,
from harboring them or punished for doing so.
that another foreign invasion of our country will not be necessary in order for our countrymen
to appreciate and cherish the Philippine flag.
In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedra that they are not violating the Bible by saluting the flag. This is to me an
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders
unwarranted intrusion into their religious beliefs, which tell them the opposite. The State
issued by the public respondents against the petitioners are hereby ANNULLED AND SET
cannot interpret the Bible for them; only they can read it as they see fit. Right or wrong, the
meaning they derive from it cannot be revised or reversed except perhaps by their own
acknowledged superiors. But certainly not the State. It has no competence in this matter.
Religion is forbidden territory that the State, for all its power and authority, cannot invade.
I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of
religious freedom terminated disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."
But in the case at bar, the law to which the petitioners are made to conform clashes with
their own understanding of their religious obligations. Significantly, as the ponencia notes,
their intransigence does not disturb the peaceful atmosphere of the school or otherwise
prejudice the public order. Their refusal to salute the flag and recite the patriotic pledge does
not disrupt the flag ceremony. They neither mock nor disdain it. The petitioners simply stand
at attention and keep quiet "to show their respect for the right of those who choose to
participate in the solemn proceedings." It is for this innocuous conduct that, pursuant to the
challenged law and regulations, the teachers have been dismissed and the students expelled.
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also guarantees
to him the liberty not to utter what is not in his mind. The salute is a symbolic manner of
communication that conveys its message as clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be prohibited in the face of
valid religious objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This coercion of
conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or proscribing the
assertion of unorthodox or unpopular views as in this case. The conscientious objections of
the petitioners, no less than the impatience of those who disagree with them, are protected by
the Constitution. The State cannot make the individual speak when the soul within rebels.
SEPARATE OPINION
PADILLA, J.:
I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that
school teachers and students who cannot salute the flag, sing the national anthem and recite
the pledge of loyalty to the country, on grounds of religious belief or conviction, may not on
this ground alone be dismissed from the service or expelled from the school.
At the same time, I am really concerned with what could be the far-reaching consequences
of our ruling in that, we may in effect be sanctioning a privileged or elite class of teachers and
students who will hereafter be exempt from participating, even when they are in the school
premises, in the flag ceremony in deference to their religious scruples. What happens, for
instance, if some citizens, based also on their religious beliefs, were to refuse to pay taxes and
license fees to the government? Perhaps problems of this nature should not be anticipated.
They will be resolved when and if they ever arise. But with today's decision, we may have
created more problems than we have solved.
It cannot be denied that the State has the right and even the duty to promote among its
citizens, especially the youth, love and country, respect for the flag and reverence for its
national heroes. It cannot also be disputed that the State has the right to adopt reasonable
means by which these laudable objectives can be effectively pursued and achieved. The flag
ceremony is one such device intended to inspire patriotism and evoke the finest sentiments of
love of country and people.
In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends.
For a select few to be exempt from the flag ceremony and all that it represents even if the
exemption is predicated on respect for religious scruples, could be divisive in its impact on the
school population or community.
I would therefore submit that, henceforth, teachers and students who because of religious
scruples or beliefs cannot actively participate in the flag ceremony conducted in the school
premises should be excluded beforehand from such ceremony. Instead of allowing the
religious objector to attend the flag ceremony and display therein his inability to salute the
flag, sing the national anthem and recite the pledge of loyalty to the Republic,  he or she
should remain in the classroom while honors to the flag are conducted and manifested in the
"quadrangle" or equivalent place within school premises; or if the flag ceremony must be held
in a hall, the religious objector must take his or her place at the rear of (or outside) the hall
while those who actively participate in the ceremony must take the front places. This
arrangement can, in my view, achieve an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to freedom of religion and a valid exercise of
the State's fundamental and legitimate authority to require homage and honor to the flag as
the symbol of the Nation.
Petition granted. Orders annulled and set aside.
Note.—View that the academic freedom of the school to choose its students should not be
stretched beyond its constitutional limits (Tan vs. Court of Appeals, 199 SCRA 212).
——o0o——
278
 No. L-68828. March 27, 1985.*
RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL,
NIEVA MALINIS. RICARDO LAVlÑA, 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 MAJOR ISABELO LARIOSA,
respondents.
Constitutional Law; Exercise of right to religious freedom must he done in good faith
without any ulterior motive, e.g., political. —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 x x x x x observe honesty and good faith.”
Same; Reasonable restrictions in use of thoroughfares near the Malacañang Palace are
valid as threats to lives of heads of states are constant and real.— 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.
Same; Same.—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.
Same; Freedom to translate religious belief into action may be curtailed.— 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.
Same; Freedom of locomotion may be curtailed.—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.
FERNANDO, C.J., concurring in the result and dissenting.
Constitutional Law; Exercise of religious belief can be curtailed only to the extent
warranted by clear and present danger rule.—Concurs in the result as to (1) the moot and
academic aspect of the prayer “to enter and pray at the St. Jude Church on Friday, October
12,1984," and (2) the validity of the measure taken “to protect the lives of the President and
his family/' and expresses in a separate opinion his view that the free exercise and enjoyment
of religious profession and worship, while not absolute unlike freedom of belief, may be
restricted only to the extent allowable by the clear and present danger doctrine. To that
extent, he dissents from the opinion which fails to state the limits of such allowable restriction.
There is, f or him, a need for such a clarification for the guidance of interested parties.
Same; Same.—Suffice it then for the present to rely on the standard of the clear and
present danger principle as the controlling doc trine to justify any restriction on the freedom of
the exercise of religious profession and worship without discrimination or preference, I am
freed from the necessity of referring to specific paragraphs of the J.B. L. Reyes decision,
where I was singularly fortunate in obtaining the unanimous approval of my brethren in
my ponencia. The dissent of Justice Teehankee in this case quotes its relevant portions. May I
just add that there is an impermissible restriction unless the evil apprehended, according to
Justice Brandeis, outside of its being serious—it is so in this case—must likewise be imminent.
From the very wording of the dear and present danger principle, the question to follow
Holmes, who was the author of this concept, is “one of proximity and degree.” Necessarily in
each and every instance where it is invoked, there must be the most careful scrutiny of the
environmental facts and conditions, Absent that element, this Court cannot give the
imprimatur of its approval.
Same; Judgments; Moot and Academic; It is no longer unorthodox for Supreme Court
to make a ruling even if issue has become moot. —Nor is the dismissal of the petition a bar to
such a conclusion It is no longer unorthodox in this jurisdiction for this Court to make a
pronouncement of controlling force even if a case were dismissed for being moot and
academic. It can trace its origin to the landmark opinion of Justice Malcolm in
Alejandrino v. Quezon. The latest manifestation of such well-accepted practice is the February,
1985 decision of Salonga v. Paño.
TEEHANKEE, J., dissenting:
Constitutional Law; Freedoms of religion, speech and assembly are preferred rights.—
The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights.
Freedom of worship, alongside with freedom of expression and speech and peaceable
assembly “along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary—even more so
than on the other departments—rests the grave and delicate responsibility of assuring respect
for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with. what ‘has been so 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.''
Same; There can be no restraints on preferred constitutional rights except when justified
by a grave and present danger to public safety.—In the free exercise of such preferred rights,
there is to be no prior restraint although there may be subsequent punishment of any illegal
acts committed during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right
(and duty) to prevent.
Same; Burden of proof to show existence of imminent danger to justify prior restraint to
constitutional right lies on public officials.—The burden to show the existence of grave and
imminent danger that would justify prior restraint and bar a group of persons from entering
the church of their choice for prayer and worship lies on the military or police officials who
would so physically restrain them, Indeed, there is no precedent in this time and age where
churchgoers whose right of free exercise of their religion is recognized have been physically
prevented from entering their church on grounds of national security. On the other hand, it
does not lie within the competence nor authority of such officials to demand of churchgoers
that they show and establish their “sincerity and good faith . . . in invoking the constitutional
guarantee of freedom of religious worship and of locomotion” as a pre-condition, as seems to
be the thrust of the majority decision. Nor is there any burden on the churchgoer to make “a
satisfactory showing of a claim deeply rooted in religious conviction” before he may worship at
the church of his choice—as appears to be the basis of Justice Gutierrez’ concurring opinion
for dismissal of the petition. The exercise of such basic and sacred rights would be too
tenuous if they were made to depend on the snap judgment and disposition of such officials
as to one’s good faith and his attire, In fact, Article 132 of the Revised Penal Code penalizes
public officers and employees who “prevent or disturb the ceremonies or manifestations of any
religion” while Article 32 of the Civil Code grants an independent cause of action for moral and
exemplary damages and “for other relief” against such officials or employees or private
individuals “who directly or indirectly obstruct, defeat, violate or in any manner impede or
impair (the) freedom of religion (and) freedom of speech” of any person.
Same; Good faith must be presumed in exercise of constitutional right.— Good faith on
both sides is and must be presumed. Thus, petitioners’ manifestations of their sincere
intention as Christians to gather together in prayer at St. Jude Church who is known as the
Patron of the Impossible should be taken in good faith. It would seem that no court petition
should be necessary to enable a group of persons such as petitioners to freely proceed and
enter a church of their religion and choice and therein hear mass and say their prayers. We
are basically a people of peace who believe in the power of prayer and pray silently for God’s
guidance and compassion and that peace and justice may reign in the land. Many recall the
Lord’s promise to Solomon that “if my people who bear my name humble themselves and pray
and seek my presence and turn from their wicked ways, I myself will hear from Heaven and
forgive their sins and restore their land.” Respondents’ acts of barring petitioners from the
Malacañang security perimeter and thereby preventing their entering and praying at the St.
Jude Church should likewise be taken as in good faith in their zeal to avoid any untoward
disturbance or development in the area. But “uncontrolled official suppression of the privilege
cannot be made a substitute for the duty to maintain order in connection with the exercise of
the right.”
MAKASIAR, J., dissenting:
Constitutional; Wearing of yellow T-shirts and of yellow emblems are forms of
guaranteed freedom of expression.—Their wearing T-shirts and clothing and bearing yellow
emblems or banners, are of expression which are also protected by the constitutional
guarantees of freedom of expression in general, and freedom in particular. The fact that most,
if not all, of them are not residents of Sampaloc or the neighborhood around St. Jude’s
Church, should not their credibility as to their true intentions because St. Jude’s Church, to the
believers or devotes, is the only church in Metro Manila especially dedicated to supplications
for the realization of impossible hopes dreams.
Same; Assurances given by petitioners of their religious and peaceful intentions show
absence of clear and present danger to public order or security.— With the assurances
aforestated given by both petitioners and respondents, there is no clear and present danger to
public peace and order or to the security of persons within the premises of Malacañang and
the adjacent areas, as the respondents have adopted measures and are prepared to insure
against any public disturbance or violence.
ABAD SANTOS, J., dissenting;
Constitutional Law; Supreme Court; The Supreme Court is a backslider.—The Court took
a big step forward in the WE FORUM case (G.R. No. 64261, Dec. 26, 1984), It has taken
another step but this time in the other direction, In martial law jargon it is a backslider.
Same; Same; lt is highly presumptuous for both the military and this Court to attribute
to petitioners unstated and unadmitted motives.— We have here a group of people It may be
conceded that Reli German, Ramon Pedrosa and company are “opposition minded.” They
wanted to go on foot to St. Jude Chapel adjacent to the Malacañang compound and there to
pray and hear mass. It may be assumed that they intended to pray for the full restoration of
the civil rights of the Filipino people. But they were prevented by the respondents who
contended that their real purpose was to demonstrate against the President of the Republic.
In my opinion it is highly presumptuous for both the respondents and this Court to attribute
unstated and unadmitted motives to the petitioners. The petitioners said that they wanted to
pray and hear mass. Why can’t good faith be accorded to them in the light of the
constitutional provision that the free exercise and enjoyment of religious profession and
worship shall forever be allowed? It is unthinkable that they would conduct an anti-
government demonstration in the hallowed premises of St. Jude Chapel and thereby defile it If
they raised their fists in protest and shouted invectives it was only alter they had been
arbitrarily barred from going to the chapel. So the petitioners said during the hearing and I
believe them.
MELENCIO-HERRERA, J., dissenting:
Constitutional Law; The acts of petitioners of attempting to converge at St. Jude and
shouting anti-government slogans with clenched fists do not constitute a clear and present
danger to the security of the nearby Malacañang area.—The location of the St. Jude Chapel
within the perimeter of the Malacañang security area is not, to my mind, sufficient reason for
a prior restraint on petitioners’ right to freedom of religious worship. Proper security measures
can always be taken, It is only when petitioners, in the exercise of their religious belief s,
exceed those bounds and translate their freedoms into acts detrimental or inimical to the
superior rights of public peace and order, that the test of a clear and present danger of a
substantive evil is met and the acts having a religious significance may be infringed upon in
the exercise of the police power of the State. “Freedom of worship is susceptible of restriction
only to prevent grave and immediate danger to interests which the State may lawfully protect”
(West Virginia State Board of Education vs. Barnette, 319 U.S. 624 [1943]).
RELOVA, J., separate note and statement
Constitutional Law; It cannot be said that petitioners’ intention was to conduct an anti-
government demonstration for, otherwise, they would have done it on a Thursday.— October
2,1984 was a Tuesday and was not a particular day of devotion to St. Jude, known as the
Saint of the impossible. Thus, it cannot be said that petitioners’ intention that afternoon was
to conduct an anti-government demonstration because if the purpose was to stage one they
would have gone to St. Jude Chapel on a Thursday and be favored with a crowd to hear them.
Stated differently, Thursdays would be the best day to stage a march at the place and, after
praying and/or hearing mass, deliver speeches outside the chapel before the many devotees.
The fact that petitioners chose a Tuesday to hear mass and/or pray for their special intention
negates the suspicion that they were out to stage a demonstration.
Same; The premature action of rspondents in barring peti-tioners’ procession is
tantamount to prohibiting free exercise of worship.—Respondents should have allowed
petitioners to hear mass and/or pray and, thereafter, see what they would do. Only then
would We know what were really in their minds. What respondents did by acting before
petitioners could display themselves was tantamount to prohibiting free exercise and
enjoyment of religious worship. Demonstrations about or near the premises of St. Jude Chapel
because of its proximity to the residence of the President may be restricted, but certainly, for
petitioners or any group of men for that matter, to hear mass and/or pray at the chapel
should be tolerated.
GUTIERREZ, JR., J., concurring:
Constitutional Law; Words and Phrases; Meaning of “shall forever be allowed."—It is, of
course, axiomatic that no provision of the Constitution is beyond repeal or amendment. The
clause “shall forever be allowed” is simply an expression of the framers’ faith that the Filipino
people cherish religious freedom so much that they would never remove this freedom from
the Constitution or water it down through a modification. I believe that this faith is justified
 Same; Same.—Thus, the free exercise of religious freedom is not only intended to last
“forever” but the clause guaranteeing it is interpreted within limits of “utmost amplitude”. If
the presidential security forces or any other public functionaries try to impede any genuine
and legitimate exercise of a person’s religious profession or worship, there can be no doubt
that this Court would rule against such an attempt.
Same; Any claim to exercise of religious worship must be genuine and valid.— At the
same time, any claim to the free exercise of religion must be a genuine or valid one. This
Court is keenly sensitive to problems arising from the freedom of religion clause. We examine
allegations of its violation to check any infringement of this preferred freedom. A claim based
on it should be rooted in genuine religious conviction, although as mentioned by Justice
Amuerfina A. Melencio-Herrera we have to take into account the presumption of good f aith.
Same; There was in this case a failure of communication between the parties rather
than a denial of freedom of worship.—The petition, standing by itself, was pregnant with
implications. Somehow, it seemed unthinkable that in our country, at this time and age,
citizens would be prevented from worshipping at a church of their choice. However, during the
hearing, it was ascertained and the respondents gave ave concrete concrete assurances that
anyone wishing to worship at St. Jude Church near Malacañang has never been restricted nor
will he ever be restricted from going to that church. The presidential security guards check
political demonstrators who try to told rallies before the presidential palace but not church
goers, attending worship services in the vicinity. On the other hand, the petitioners informed
the Court through counsel that they did not intend to hold any protest rally or political
demonstration in front of Malacañang. Their only intent was to pray at St. Jude Church, the
church dedicated to the patron saint of impossible causes. The facts as stated by contending
counsel show that the problem is one of a failure of communications and not a denial of
freedom of worship. If the respondents do not deny completely free access to church goers
while the petitioners had absolutely no intention to hold a political demonstration, the petition
belabors a non-existent issue.
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 f rom 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 fists1 and shouts of anti-government
invectives. Along the way, however, they were barred by respondent Major Isabelo 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 Tshirts
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. x x x”
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 x x x 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 Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and
terrorism that have been perpetrated against heads of state and other public of f icers of f reasonableness of which have already been discussed, is allowed under the fundamental law,
oreign nations, the same having been established in the interest of national security,

Said restriction is moreover intended to secure the several executive offices within the WHEREFORE, the instant petition is hereby dismissed. No costs.
Malacañang grounds from possible external attacks and disturbances. These offices include
communications facilities that link the central government to all places in the land. SO ORDERED.
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.
     Concepcion, Jr., Plana, De la Fuente and Cuevas, JJ., concur.
Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973
Constitution, thus:
     Fernando, C.J., concurs in the result as to (1) the moot and academic aspect of the
prayer “to enter and pray at the St. Jude Church on Friday, October 12, 1984," and (2) the
“No law shall be made respecting an establishment of religion, or prohibiting the free exercise
validity of the measure taken “to protect the lives of the President and his family,”
thereof. The free exercise and enjoyment of religious profession and worship, without
and expresses in a separate opinion his view that the free exercise and enjoyment of religious
discrimination or preference, shall forever be allowed, No religious test shall be required for
profession and worship, while not absolute unlike freedom of belief, may be restricted only to
the exercise of civil or political rights.”
the extent allowable by the clear and present danger doctrine. To that extent,
he dissents from the opinion which fails to state the limits of such allowable restriction. There
Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in is, for him, a need for such a clarification for the guidance of interested parties.
Cantwell v. Connecticut2 said:

“The constitutional inhibition on legislation on the subject of religion has a double aspect On      Teehankee, J., see attached separate dissenting opinion.
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      Makasiar and Melencio-Herrera, JJ., see dissent.
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.”      Aquino, J.,  In the result. Petitioners have no cause of action for mandamus.

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice
     Abad Santos, J., see dissenting opinion.
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      Relova, J.,  see separate vote and statement.
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      Gutierrez, Jr., J., I concur. I am also adding some observations in a separate opinion.
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      Alampay, J., no part
give way to the latter. The government steps in and either restrains said exercise or even
prosecutes the one exercising it.” (Italics supplied)
FERNANDO, C.J., concurring in the result and dissenting insofar as the opinion fails to
Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the declare that the freedom of exercise of religious profession and worship can only be limited by
Constitution, which provides: the existence of a clear and present danger of a substantive evil. There is, for him, a need for
such a statement for the guidance of the parties as well as of the general public,
“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.” . 1.The prayer of this petition reads as follows:” ‘After hearing, a writ of
mandamus/injunction issue against respondents commanding them (i) to allow
 herein petitioners to enter and pray at the St. Jude church on Friday, October 12,
1984 at or about 6:00 P.M. or on any date and time thereafter and (ii) to refrain
from preventing herein petitioners from [so] entering and praying inside the St. Jude
Church."1 Clearly, the plea to enter and pray at such church on Friday, October 12,
1984 is moot and academic. There is in addition, however, a plea for the injunctive
relief to prevent respondents from interfering with petitioners exercising their
constitutional right to attend mass at such church in the future. That is to invoke
freedom of religion as a preferred right of undoubted primacy.2 Specifically prior
restraint is ruled out exept under a clear showing that its exercise would be attended
by a clear and present danger of substantive evil. That is settled law for rights
embraced in freedom of expression and belief, whether secular and religious—and
much more so in the case of the latter. Our unanimous ruling in J.B.L. Reyes v.
Bagatsing3 stands for such a proposition.
. 2.Why a concurrence in the result then? I am led to do so in view of the clear
manifestation by the Solicitor General that such a right would be accorded the fullest
respect with due regard to the countervailing consideration of avoiding danger to the
lives of the President and his family. It is likewise in keeping with the letter and spirit
of the Constitution when, as noted in the separate opinion of Justice Teehankee,
“petitioners have given full assurance of their peaceful intentions. They were walking
and would walk along the sidewalks. They did not and will not hold any
demonstrations. They were and are unarmed, and were and are willing to be
searched and have pledged peaceful and orderly behaviour."4 There being such
assurances. a more categorical pronouncement on the full scope of the right to free
exercise and enjoyment of religious profession and worship will have to wait another
day.
. 3.It may not be amiss to state that at the hearing of this petition, while counsel for
petitioners, admittedly with fluency and even with eloquence, was discoursing with
denunciatory fervor on the flagrant disregard of this constitutional right, the
suggestion was made that the Court will welcome an analysis of pertinent
constitutional law decisions both from the Philippines and the United States. It
hardly elicited, however, a response that could be considered as adequate. At the
very least, there could have been reference to the wellknown distinction between
religious belief, which is absolute, and its expression which, while subject to
restriction, does not lose its fundamental character.5 It is worth recalling that in one
of the latest of such American cases, Wisconsin v. Yoder,6 a 1972 decision, the
opinion of Chief Justice Burger referred to the non-establishment clause of the First
Amendment of the American Constitution—the source of our constitutional provision
—as “buttressing this fundamental right"7 to the free exercise of religious profession
and worship. It is precisely to avoid any discrimination or preference in favor of any
other religion that there is such a prohibition. Parenthetically, it may be observed
that the non-establishment clause in the Philippines which in the United States is the
basis for the concept of separation of church and state is made much more explicit
by this constitutional command: ‘The separation of church and state shall be
inviolable."8 The point, I wish to make, however, is that had there been no clear
manifestation by both petitioners and respondents that the right to attend mass at
St. Jude’s Church would be respected, even if it is located in a security area but with
due precautionary measures taken to avoid infiltration by subversive elements,
this Court would have been called upon to rule and, if possible, to delineate with
some degree of precision the scope of such a right to free exercise and enjoyment of
religious profession and worship.
. 4.Suffice it then for the present to rely on the standard of the clear and present
danger principle as the controlling doc trine to justify any restriction on the freedom
of the exercise of religious profession and worship without discrimination or
preference. I am freed from the necessity of referring to specific paragraphs of the
J.B.L. Reyes decision, where I was singularly fortunate in obtaining the unanimous
approval of my brethren in my ponencia. The dissent of Justice Teehankee in this
case quotes its relevant portions. May I just add that there is an impermissible
restriction unless the evil apprehended, according to Justice Brandeis, outside of its
being serious—it is so in this case—must likewise be imminent,9 From the very
wording of the clear and present danger principle, the cumbency. Cf. Significant
Supreme Court Opinions of Chief Justice Warren E. Burger. question, to follow
Holmes, who was the author of this concept, is “one of proximity and
degree."10 Necessarily in each and every instance where it is invoked, there must be
the most careful scrutiny of the environmental facts and conditions. Absent that
element, this Court cannot give the imprimatur of its approval.
. 5.It would be an unwarranted departure then from what has been unanimously held
in the J.B.L. Reyes decision if on such a basic right as religious freedom—clearly the
most fundamental and thus entitled to the highest priority among human rights,
involving as it does the relationship of man to his Creator—this Court will be less
vigilant in upholding any rightful claim. More than ever, in times of stress—and much
more so in times of crisis—it is that deeply-held faith that affords solace and comfort
if not for everyone at least for the majority of mankind. Without that faith, man’s
very existence is devoid of meaning, bereft of significance.
. 6.My vote, therefore, in concurring in the result is to be viewed in that light. I feel I
could do so because of this excerpt from the opinion of Justice Escolin: “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."11 Independently of any judgment of
the past conduct of respondents, it bears repeating that the promise made by the
respondents of not restricting petitioners from entering and worshipping at St. Jude
Church is a guarantee that no such impermissible restraint of religious freedom
would thereafter be attempted. I am prepared to accord good faith to both parties
even if on the occasion that presented itself on October 2,1984 there could be a
mistake of judgment on the part of respondents.
. 7.It is my reading then of the main opinion as well as of the separate opinions in this
case that the Court is united in the view that the free exercise of religious profession
and worship is to be accorded the amplest protection. The dismissal of the petition,
to my mind, is not a bar to the application hereafter of the clear and present danger
principle. If no mention was made in the opinion of the Court of such controlling
doctrine it is my perception that it is due, as has been pointed out, to the assurances
made by the parties to the controversy that the right to the free exercise of religious
profession and worship will be accorded the fullest respect. Hence the failure to
make such explicit af firmation.
 . 8.Nor is the dismissal of the petition a bar to such a conclusion. It is no longer
unorthodox in this jurisdiction for this Court to make a pronouncement of controlling
force even if a case were dismissed for being moot and academic. It can trace its
origin to the landmark opinion of Justice Malcolm in Alejandrino v. Quezon.12 The
latest manifestation of such wellaccepted practice is the February, 1985 decision
of Salonga v. Paño.13 Moreover, in the opinion of Justice Gutierrez, Jr.,14 reference
was made to the three other cases of Camara v. Enage,15 Aquino Jr. v.
Enrile,16 and Gonzales v. Marcos,17 where the Court enunciated doctrines that
could govern future controversies. It is for me, a cause for regret that the Court has
not done so in this case. Nonetheless, implicit in the plurality opinion of Justice
Escolin and to a greater degree in the separate opinions of Justices Relova and
Gutierrez is the deep concern for safeguarding the constitutional right to free
exercise of religious profession and worship. As for the other separate opinions, its
being a preferred right to be restricted only if there be satisfactory proof of a clear
and present danger of a substantive evil is quite manifest.
TEEHANKEE, J., dissenting:
I vote to grant the petition on the ground that the right of free worship and movement is a
preferred right that enjoys precedence and primacy and is not subject to prior restraint except
where there exists the clear and present danger of a substantive evil sought to be prevented.
There was and is manifestly no such danger in this case.
The majority judgment dismisses the petition of the forty (40) hereinabove-named
petitioners (composed of “businessmen, bankers, professionals, students and office
employees"1). who, invoking their constitutional freedom of worship and movement, have
prayed that a writ of mandamus/injunction issue from this Court against respondents Chief of
the Presidential Security Command and his subordinates at Malacañang, directing them "(1) to
allow herein petitioners to enter and pray at the St. Jude Church on Friday, October 12,1984
at or about 6:00 P.M. or on any date and time thereafter and (2) to refrain from preventing
herein petitioners from [so] entering and praying inside St. Jude Church.”
As aptly and concisely stated in the Solicitor General’s comment, "(T)he issue petitioners
present is whether respondent Presidential Security Command officers have, in preventing
petitioners’ group from proceeding down J.P. Laurel Street on October 2 violated their
freedom of worship and movement. Given that there has been such a violation, petitioners
want similar acts of respondents in the future enjoined."2
On October 2, 1984 at about 5:00 p.m., the petitioners and their companions totalling
about fifty (50) to eighty (80) persons had walked along the sidewalk in small groups towards
the St. Jude Church at J.P. Laurel Street, Manila to hear a special mass that they had
sponsored “for the main purpose of praying to God through St. Jude to put an end to
violence"3 and for those who were injured during the September 22 and 27, 1984 rally
dispersals and the lone fatality Osias Alcala. Petitioner Reli German, a leader of the ATOM
(August 21 Movement), was wearing a yellow T-shirt and he and those lined up after him
were physically prevented from proceeding farther on the ground that the church was located
within the Malacañang security area. Earlier, another ATOM leader Ramon Pedrosa who was
wearing a barong tagalog had gone through unnoticed to the church with some ten
others.4 Petitioners’ pleas with respondent Lariosa to be allowed their right of worship and
religion were unheeded. They then knelt on the pavement in front of the barricade and prayed
the holy Rosary. Afterwards, they sang Bayan ko with clenched fists of protest against the
violation of their rights and thereafter dispersed peacefully.5 Having been then warned that
any further at-tempts on their part to enter the church would be similarly barred, they filed
the petition at bar, which was heard and submitted for resolution on October 16, 1984
(rendering moot their prayer to enter the church on October 12, 1984 but not as to any open
subsequent date, as prayed for).
A brief restatement of the applicable constitutional principles as set forth in the landmark
case of J.B. L Reyes vs. Bagatsing6 should guide us in resolving the issues.
. 1.The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of
Rights.7 Freedom of worship, alongside with freedom of expression and speech and
peaceable assembly “along with the other intellectual freedoms, are highly ranked in
our scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary—even more so than on the other departments—rests the grave and
delicate responsibility of assuring respect for and deference to such preferred rights.
No verbal formula, no sanctifying phrase can, of course, dispense with what has
been so 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."8
. 2.In the free exercise of such preferred rights, there is to be no prior restraint
although there may be subsequent punishment of any illegal acts committed during
the exercise of such basic rights. The sole justification for a prior restraint or
Iimitation on the exercise of these basic rights is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent.9
. 3.The burden to show the existence of grave and imminent danger that would justify
prior restraint and bar a group of persons from entering the church of their choice
for prayer and worship lies on the military or police officials who would so physically
restrain them. Indeed, there is no precedent in this time and age where churchgoers
whose right of free exercise of their religion is recognized have been physically
prevented from entering their church on grounds of national security. On the other
hand, it does not lie within the compentence nor authority of such officials to
demand of churchgoers that they show and establish their “sincerity and good
faith. . . . in invoking the constitutional guarantee of freedom of religious worship
and of locomotion” as a pre-condition, as seems to be the thrust of the majority
decision.10 Nor is there any burden on the churchgoer to make “a satisfactory
showing of a claim deeply rooted in religious conviction'' before he may worship at
the church of his choice—as appears to be the basis of Justice Gutierrez’ concurring
opinion for dismissal of the petition, The exercise of such basic and sacred rights
would be too tenuous if they were made to depend on the snap judgment and
disposition of such officials as to one’s good faith and his attire. In fact, Article 132
of the Revised Penal Code penalizes public officers and employees who “prevent or
disturb the ceremonies or manifestations of any religion” while Article 32 of the Civil
Code grants an independent cause of action for moral and exemplary damages and
 “for other relief’ against such officials or employees or private individuals “who
directly or indirectly obstruct, defeat, violate or in any manner impede or impair
(the) freedom of religion (and) freedom of speech” of any person.
. 4.Good faith on both sides is and must be presumed. Thus, petitioners’
manifestations of their sincere intention as Christians to gather together in prayer at
St. Jude Church who is known as the Patron of the Impossible should be taken in
good faith. It would seem that 00 court petition should be necessary to enable a
group of persons such as petitioners to freely proceed and enter a church of their
religion and choice and therein hear mass and say their prayers. We are basically a
people of peace who believe in the power of prayer and pray silently for God’s
guidance and compassion and that peace and justice may reign in the land Many
recall the Lord’s promise to Solomon that “if my people who bear my name humble
themselves and pray and seek my presence and turn from their wicked ways, I
myself will hear from Heaven and forgive their sins and restore their
land."11 Respondents’ acts of barring petitioners from the Malacañang security
perimeter and thereby preventing their entering and praying at the St. Jude Church
should likewise be taken as in good f aith in their zeal to avoid any untoward
disturbance or development in the area, But “uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right."12
. 5.Over and above all, public officials should ever be guided by the testament over
half a century ago of the late Justice Jose Abad Santos in his dissenting opinion
in People vs. Rubio13 that the “commendable zeal. . if allowed to override
constitutional limitations would become ‘obnoxious to fundamental principles of
liberty.’ And if we are to be saved from the sad experiences of some countries which
have constitutions only in name, we must insist that governmental authority be
exercised within constitutional limits; for, after all, what matters is not so much what
the people write in their constitutions as the spirit in which they observe their
provisions.” To require the citizen at every step to assert his rights and to go to
court is to render illusory his rights.
The late Chief Justice Ricardo Paras’ injunction in his concurring opinion in Primicias vs.
Fuguso,14 citing the 1907 sedition case of U.S. vs. Apurado15 that instances of “disorderIy
conduct by individual members of a crowd [be not seized] as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, mutatis mutandis, is
fully applicable here, thus: “But if the prosecution be permitted to seize upon every instance of
such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable manner
would expose all those who took part therein to the severest and most unmerited punishment,
if the purposes which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals
should be sought out and punished therefor."16
Applying the above settled standards and principles to the issue at bar, respondents’ act of
preventing petitioners from proceeding down J.P. Laurel Street on October 2, 1984 to attend
their special mass at St. Jude Church was not justified and this Court must accordingly grant
the petition and enjoin similar acts of respondents in the future. There was no call for such
prior restraint. Respondents themselves in the Solicitor General’s comment admit that “true,
there were only about 80 persons in petitioners” group on October 2 and this number could
hardly pose the danger feared,” but expressed the fear that petitioners’ ranks could within
hours reach hundreds if not thousands and “peaceful dispersal becomes impossible as in
recent demonstrations and rallies."17 Respondents were in full control and there is no
question as to the capability of the security forces to ward off and stop any untoward move.
They had placed an advance checkpoint as far back as the Sta. Mesa Rotonda and could stop
the flow of people in the church if they deemed it unmanageable There definitely was no clear
and present danger of any serious evil to public safety or the security of Malacañang. The
majority decision and respondents have relied heavily on the October 12–18, 1984 issue of
Mr. & Ms. magazine, particularly on an interpretive article written after the event by staff
member J.P. Fenix for their conclusion that petitioners’ objective on October 2, 1984 was not
“innocently to worship at St. Jude"18 but to '"conduct an anti-government demonstration at a
place close to the very residence and offices of the President."19 These conjectures were
categorically denied by petitioners at the hearing, supra, and were not rebutted. The said
article itself cited in the decision as “casting serious doubts on the sincerity and good faith in
invoking the constitutional guaranty of freedom of religious worship and locomotion” showed
the government troops smiling and in good form and humor, and with truncheons raised,
“ready and waiting for any untoward incident.” At any rate, petitioners have given full
assurance of their peaceful intentions. They were walking and would walk along the sidewalks.
They did not and will not hold any demonstrations. They were and are unarmed, and were
and are willing to be searched and have pledged peaceful and orderly behavior.
The majority’s dismissal of the petition on the ground that the restriction imposed by
respondents was “necessary to maintain the smooth functions of the executive branch of the
government which petitioners’ mass action would certainly disrupt” and that such prior
restraint was not violative of petitioners’ constitutional rights of freedom of religious worship
and movement “having been established in the interest of national security."20 manifestly is
not in accord with the applicable established standards and principles.
MAKASIAR, J., dissenting:
The petitioners gave the assurance that they are marching towards St. Jude’s Church only for
the purpose of praying or attending mass therein; that they were and are going to march in
an orderly manner without blocking the traffic and with the marshals policing and identifying
the marchers; that they are not armed and are not going to be armed with any kind of
weapon; and that they are willing to be frisked. These are practically the same assurances
made by the petitioners in the case of Reyes vs. Bagatsing (125 SCRA 553, November 9,
1983) and by the petitioners who marched from España Rotonda to Liwasang Bonifacio
sometime in September, 1984.
The petitioners likewise manifested that on October 2,1984 after they entered the
premises of the church, the parish priest invited them to prayer without allowing them to
demonstrate in any manner or deliver any speeches.
On the other hand, respondents in charge of the security of Malacañang and its immediate
environs, including J.P. Laurel Street, which is the only street going direct to St. Jude’s Church
which is so close to Malacañang, likewise assured that they are not going to block or stop
petitioners as long as they march peacefully and their real purpose is just to hear mass inside
St. Jude’s Church, Respondents or their agents can frisk petitioners for any concealed weapon.
Their wearing yellow T-shirts and clothing and bearing yellow emblems or banners, are
forms of expression which are also protected by the constitutional guarantees of freedom of
expression in general and religious freedom in particular. The fact that most, if not alI, of
them are not residents of Sampaloc or the neighborhood around St. Jude’s Church, should not
impair their credibility as to their true intentions because St. Jude’s Church, to the believers or
devotees, is the only church in Metro Manila especially dedicated to supplications for the
realization of impossible hopes and dreams.
With the assurances aforestated given by both petitioners and respondents, there is no
clear and present danger to public peace and order or to the security of persons within the
premises of Malacañang and the adjacent areas, as the respondents have adopted measures
and are prepared to insure against any public disturbance or violence.
Hence, the petition should be granted.
ABAD SANTOS, J.: dissenting—
The Court took a big step forward in the WE FORUM case (G.R. No. 64281, Dec. 26, 1984). It
has taken another step but this time in the other direction. In martial law jargon it is a back-
slider.
We are asked to give meaning to the constitutional guarantee that, “The free exercise and
enjoyment of religious profession and worship, without; discrimination or preference, shall
forever be allowed” (Art IV, Sec. 8.)
We have here a group of people. It may be conceded that Reli German, Ramon Pedrosa
and company are “opposition minded.” They wanted to go on foot to St. Jude Chapel adjacent
to the Malacañang compound and there to pray and hear mass. It may be assumed that they
intended to pray for the full restoration of the civil rights of the Filipino people. But they were
prevented by the respondents who contended that their real purpose was to demonstrate
against the President of the Republic, In my opinion it is highly presumptuous for both the
respondents and this Court to attribute unstated and unadmitted motives to the petitioners.
The petitioners said that they wanted to pray and hear mass, Why can’t good faith be
accorded to them in the light of the constitutional provision that the free exercise and
enjoyment of religious profession and worship shall forever be allowed? It is unthinkable that
they would conduct an anti-government demonstration in the hallowed premises of St. Jude
Chapel and thereby defile it. If they raised their fists in protest and shouted invectives it was
only after they had been arbitrarily barred from going to the chapel. So the petitioners said
during the hearing and I believe them.
True it is that the free exercise of religion can be restrained under the clear and present
danger principle. But I fail to perceive the presence of any clear danger to the security of
Malacañang due to the action of the petitioners. The danger existed only in the fertile minds of
the overzealous guardians of the complex which is protected by a stout steel fence.
I vote to grant the petition.
MELENCIO-HERRERA, J., dissenting:
I vote to accord to petitioners their right to freedom of worship.
One of the basic and fundamental rights guaranteed by our Constitution is the free
exercise and enjoyment of religious profession and worship (Section 8, Art. IV, 1973
Constitution). “For freedom of religious expression, the Constitution assures generous
immunity, unless it can be shown that there is a clear and present danger of a substantive evil
which the State has the right to prevent” (E. M. Fernando on The Bill of Rights, Second
Edition, p. 198).
The act of petitioners in converging at J.P. Laurel Street, majority of whom were wearing
yellow T-shirts, marching towards St. Jude Chapel, there to hear Mass, shouting
antiGovernment invectives with clenched fists as they marched, did not in my opinion pose
any clear and present danger. Petitioners were unarmed, marching peacefully, albeit noisily.
But neither can respondents be taken to task for impeding petitioners from proceeding
along J.P. Laurel Street, which is within the perimeter of the Malacañang security area, since it
was not by chance that petitioners were marching as a group, evidently also to hold a public
demonstration. In other words, their objective cannot conclusively be said to have had a
purely religious flavor, In fact, in his Comment, the Solicitor General has stated “those who
come to worship in its true sense will not be stopped.”
The location of the St. Jude Chapel within the perimeter of the Malacañang security area is
not, to my mind, sufficient reason for a prior restraint on petitioners’ right to freedom of
religious worship. Proper security measures can always be taken. It is only when petitioners,
in the exercise of their religious beliefs, exceed those bounds and translate their freedoms into
acts detrimental or inimical to the superior rights of public peace and order, that the test of a
dear and present danger of a substantive evil is met and the acts having a religious
significance may be infringed upon in the exercise of the police power of the State. “Freedom
of worship is susceptible of restriction only to prevent grave and immediate danger to interests
which the State may lawfully protect” (West Virginia State Board of Education vs.
Barnette (319 U.S. 624 [1943]).
“When clear and present danger of riot, disorder, interference, with traffic upon public
streets, or other immediate threat to public safe ty, peace, or order appears, the power of the
state to prevent or punish is obvious. Equally obvious is it that a state may not unduly
suppress free communication of views, religious or other, under the guise of conserving
desirable conditions. (Cantwell vs. Connecticut 310 U.S. 308)" (Italics ours).
Our country is faced with the profoundest problems confronting a democracy. In the clash
of competing interests, sobriety, restraint, and a balanced regard not only for individual rights
and liberties but also for the right of the State to survival, should be the guiding criteria. There
is need for sustained efforts to achieve a solution to the dilemma phrased by Lincoln: “Must a
government of necessity be too strong for the liberties of its people, or too weak to maintain
its existence?”
RELOVA, J., Separate vote and statement
The majority opinion doubts the sincerity and good faith of the fifty (50) petitioners in
invoking the constitutional guarantee of religious worship and of locomotion because they
were wearing yellow T-shirts as they marched down J.P. Laurel Street with raised clenched
fists on October 2, 1984, at about 5:00 in the afternoon, for the purpose of praying and/or
hearing at the St. Jude Chapel which adjoins the Malacañang grounds,
It is known that devotees of St. Jude attend mass novena at this chapel on Thursdays, just
like those of Our Lady of Perpetual Help in Baclaran who pay homage to Her on Wednesdays,
and worshippers at the Black Nazarene show religious reverence to Him at the Quiapo Church
on Fridays. Whenever these devotees request a mass in these places of worships for their
special intentions, they may also ask that the same be held on any day other than Thursdays,
Wednesdays or Fridays.
October 2,1984 was a Tuesday and was not a particular day of devotion to St. Jude,
known as the Saint of the impossible. Thus, it cannot be said that petitioners’ intention that
afternoon was to conduct an anti-government demonstration because if the purpose was to
stage one they would have gone to St. Jude Chapel on a Thursday and be favored with a
crowd to hear them. Stated differently, Thursdays would be the best day to stage a march at
the place and, after praying and/or hearing mass, deliver speeches outside the chapel before
the many devotees. The fact that petitioners chose a Tuesday to hear mass and/or pray for
their special intention negates the suspicion that they were out to stage a demonstration.
Petitioners claim that they were on their way to hear mass and/or pray. For respondents to
say, even before petitioners have reached the place, that they would be delivering speeches is
pure speculation. Respondents should have allowed petitioners to hear mass and/or pray and,
thereafter, see what they would do. Only then would We know what were really in their
minds. What respondents did by acting before petitioners could display themselves was
tantamount to prohibiting free exercise and enjoyment of religious worship. Demonstrations
about or near the premises of St. Jude Chapel because of its proximity to the residence of the
President may be restricted, but certainly, for petitioners or any group of men for that matter,
to hear mass and/or pray at the chapel should be tolerated.
The petition should be granted
CONCURRING OPINION
GUTIERREZ, JR., J.:
While concurring in the Court’s opinion penned by my distinguished colleague, Mr. Justice
Venicio Escolin, I would like to add a few observations.
By its very nature, liberty of mind and conscience occupies a primacy or pre-eminent
position in the hierarchy of values protected by the Constitution. Nothing can inflame the
passions of a freedom loving people more than an attempt by civil or military authorities to
restrict persons in their right to worship. A person who-sincerely believes that Divine
Providence determines not only his destiny in this life but also his eternal dwelling place after
death will resist with all his might any effort to curb or prevent communion through worship
with his Deity.
This petition, therefore, furnishes an auspicious occasion to reiterate our people’s deep
commitment to religious liberty. The unique phraseology of the religious freedom clause
furnishes a textual. basis for this commitment.
Section 8 of the Bill of Rights reads:
“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. (Italics supplied)."
Article 5 of the Malolos Constitution provided for freedom and equality of religious worship as
well as the separation of church and state. President William McKinley’s Instructions to the
Second Philippine Commission directed “that no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof and that the free exercise and
enjoyment of religious profession and worship without discrimination or preference shall
forever be allowed " (Italics supplied). The same statement of the eternal nature of the
freedom is found in the Philippine Bill in 1902 and in the Philippine Autonomy Act of 1016,
more popularly known as the Jones Law.
It is, of course, axiomatic that no provision of the Constitution is beyond repeal or
amendment. The clause “shall forever be allowed” is simply an expression of the framers’ faith
that the Filipino people cherish religious freedom so much that they would never remove this
freedom from the Constitution or water it down through a modification. I believe that this faith
is justified.
This Court stated in Aglipay v. Ruiz (64 Phil. 201):
“x x x Religion as a profession of faith to an active power that binds and elevates man to his
Creator is recognised And, in so far as it instills into the minds the purest principles of
morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the
preamble of their Constitution, implored ‘the aid of Divine Providence. in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy/ they thereby manifested
their intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere.”
In Victoriano v. Elizalde Rope Workers Union (59 SCRA 54) we stated:
“The constitutional provision 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, but also assures the free
exercise of one’s chosen form of religion within Iimits 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 ef fect 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.”
Note.—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. (Cruz: Constitutional Law;
Edition, p. 1661
——o0o——

Thus, the free exercise of religious freedom is not only intended to last’ ‘forever” but the
clause guaranteeing it is interpreted within limits of “utmost amplitude” . If the presidential
security forces or any other public functionaries try to impede any genuine and legitimate
exercise of a person’s religious profession or worship, there can be no doubt that this Court
would rule against such an attempt.

At the same time, any claim to the free exercise of religion must be a genuine or valid one,
This Court is keenly sensitive to problems arising from the freedom of religion clause. We
examine allegations of its violation to check any infringement of this preferred freedom. A
claim based on it should be rooted in genuine religious conviction, although as mentioned by
Justice Ameurfina A. Melencio-Herrera we have to take into account the presumption of good
faith,

The petition, standing by itself, was pregnant with implications. Somehow, it seemed
unthinkable that in our country, at this time and age, citizens would be prevented from
worshipping at a church of their choice. However, during the hearing, it was ascertained and
the respondents gave concrete assurances that anyone wishing to worship at St. Jude Church
near Malacañang has never been restricted nor will he ever be restricted from going to that
church. The presidential security guards check political demonstrators who try to hold rallies
before the presidential palace but not church goers, attending worship services in the vicinity,
On the other hand, the petitioners informed the Court through counsel that they did not
intend to hold any protest rally or political demonstration in front of Malacañang. Their only
intent was to pray at St. Jude Church, the church dedicated to the patron saint of impossible
causes. The facts as stated by contending counsel show that the problem is one of a failure of
communications and not a denial of freedom of worship, If the respondents do not
deny completely free access to church goers while the petitioners had absolutely no intention
to hold a political demonstration, the petition belabors a non-existent issue.

I, therefore, concur in the dismissal of the petition since it belabors a non-existent issue.

Petition dismissed
 No. L-34854. November 20, 1978.* 1971 is simple: what is the effect of the filing of certificates of candidacy by appointive,
elective and other officials of the government? The said section is therefore of no relevance
(except to the extent that it allows members of the Armed Forces to run for elective
FORTUNATO R. PAMIL, petitioner-appellant, vs. HONORABLE VICTORINO C.
positions). Upon the other hand, section 2175 of the Administrative Code treats of a disparate
TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and REV. FR.
matter, which is the absolute disqualification of the classes of persons enumerated therein.
MARGARITO R. GONZAGA, respondents-appellees.
Nor does the proscription contained in the said section 2175 prescribe a religious test for the
Supreme Court; Quo warranto; Constitution Law; Election Law; Administration exercise of civil or political rights. I have searchingly analyzed this provision, and I am unable
Law; Provision of Revised Administrative Code barring ecclesiastics from being elected to to infer from it any requirement of a religious test. x x x Since section 2175 of the
public office held constitutional; Minority votes of 5 members of Supreme Court prevailed over Administrative Code has not been superseded, and has been neither expressly nor impliedly
insufficient 7 votes of members, as the requirement to declare a law unconstitutional is 8 repealed in so far as the absolute disqualification of ecclesiastics is concerned, it is perforce
votes; Case at bar.—There is no clear-cut answer from this Tribunal. After a lengthy and the controlling law in the case at bar. Careful note must be taken that the absolute
protracted deliberation, the Court is divided on the issue. Seven members of the Court are of disqualification is couched in the most compelling of negative terms. The law reads: “In no
the view that the judgment should be affirmed as the challenged provision is no longer case shall there be elected or appointed to a municipal office ecclesiastics . . .” (italics
operative either because it was superseded by the 1935 Constitution or repealed. Outside of supplied)
the writer of this opinion, six other Justices are of this mind. They are Justices Teehankee,
Same; Implied repeal of statutes; There must be absolute repugnance between two
Muñoz Palma, Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding
provisions of law for existence of implied repeal.—On the complementary question of implied
principle of the supremacy of the Constitution or, at the very least, the repeal of such
repeal, it is a time-honored cardinal rule of legal hermeneutics that for a later provision of law
provision bars a reversal. The remaining five members of this Court, Chief Justice Castro,
to be considered as having repealed a prior provision, there must be such absolute
Justices Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold the position that
repugnance between the two that the prior provision must give way. I do not discern any such
such a prohibition against an ecclesiastic running for elective office is not tainted with any
repugnance.
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
Same; Effect of allowing ecclesiastics to hold public elective office.—It is thus entirely
ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are
possible that the election of ecclesiastics to municipal offices may spawn small religious wars
concerned, must be accorded respect. The presumption of validity calls for its application.
instead of promote the general community welfare and peace—and these religious wars could
Under the circumstances, certiorari lies. That is the conclusion arrived at by the writer of this
conceivably burgeon into internecine dimensions. Where then would we consign Pope John
opinion, joined by Justices Concepcion Jr., Santos, Fernandez, and Guerrero. They have no
XXIII’s ecumenism? x x x In my view, all ecclesiastics—whoever they are, whatever their
choice then but to vote for the reversal of the lower court decision and declare ineligible
faiths, wherever they may be—should essentially be pastors, immersing themselves around
respondent Father Margarito R. Gonzaga for the office of municipal mayor. With the aforesaid
the clock in the problems of the disadvantaged and the poor. But they cannot be effective
five other members, led by the Chief Justice, entertaining no doubt as to his lack of eligibility,
pastors if they do not dissociate themselves completely from every and all bane of politics.
this petition for certiorari must be granted.
Teehankee, J., dissenting opinion
Fernando, J., opinion
Quo Warranto; Administrative Law; Election Law; Ban in Sec. 2175 of the Adm. Code
Quo Warranto; Constitutional Law; Election Law; Administrative Law; Sec. 2175 of
against ecclesiastics repealed by 1971 Election Code.—As a pure question of law, on the sole
Revised Administrative Code prohibiting ecclesiastics from holding public office is
issue joined by the parties, therefore, I hold that the ban in section 2175 of the Revised
unconstitutional; Reasons; Ban in Sec. 2175 already superseded by the 1935 and 1973
Administrative Code against the election of ecclesiastics (and the three other categories
Constitutions on provision or non-religious test for exercise of civil or political rights.—The
therein mentioned) to a municipal office has been repealed by the provisions of the Election
Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under
Code of 1971, which nowhere in its all-embracing and comprehensive text mentions
the present Charter, it is explicitly declared: “No religious test shall be required for the
ecclesiastics (as well as the three other categories in the aforesaid administrative Code
exercise of civil or political rights.” The principle of the paramount character of the
provision) as among those ineligible or disqualified to run for public office (national or local).
fundamental law thus comes into play. There are previous rulings to that effect. The ban
imposed by the Administrative Code cannot survive. So the writer of this opinion would hold.
Same; Same; Same; Constitutional Law; Administrative Code declaring ecclesiastics
ineligible for election or appointment to municipal office inconsistent with and violative of
Castro, C.J., separate opinion
religious freedom under 1935 Constitution and provision on non-requirement of religious test
under 1973 Constitution.—On the constitutional dimension given motu proprio to the case in
Quo Warranto; Constitutional Law; Administrative Law; Elec-tion Law; Sec. 2175 of
the main opinion of Mr. Justice Fernando, by way of “constitutional objectives to the
Adm. Code on ecclesiastics not repealed by 1971 Election Code nor superseded or rendered
continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned.” I concur
inoperative by 1935 and 1973 Constitutions.—The thrust of section 23 of the Election Code of
with the main opinion, concurred in by five other members of the Court, viz, Justices Muñoz
Palma, Concepcion Jr., Santos, Fernandez and Guerrero that the archaic Administrative Code
provision declaring ecclesiastics ineligible for election or appointment to a municipal office is
inconsistent with and violative of the religious freedom guaranteed by the 1935 Constitution
and that to so bar them from office is to impose a religious test in violation of the
Constitutional mandate that “No religious test shall be required for the exercise of civil or
political rights.”
Same; Same; Same; Supreme Court; Applicable law in non-constitutional cases when
there is inconclusive or indecisive vote of Supreme Court Justices for affirming appealed
judgment is Rules of Court, not the Constitution.—Be that as it may, the question confronting
the Court is: what is the applicable law in a case like this where there is an inconclusive or
indecisive vote of seven to five for affirming the appealed judgment? To begin with, the
applicable law is not the Constitutional provision which requires a qualified vote of at least ten
members of this Court to declare unconstitutional a law, treaty or executive agreement. In
such constitutional cases, failure to reach the qualified vote of ten members results in a
declaration that the constitutionality of the questioned law is deemed upheld. Concededly, the
present action is not one to declare unconstitutional the question provision banning
ecclesiastics from municipal office. The action was filed by petitioner precisely invoking the
law’s ban in order to disqualify respondent. The lower court merely sided with the Comelec’s
ruling in an earlier case filed by petitioner for the same purpose of disqualifying respondent,
and dismissed the case below upholding respondent’s defense that the law had been repealed
by the 1971 Election Code. This was the sole issue both before the lower court and this Court.
As shown hereinabove, the sole issue joined by the parties in the court below and in this Court
on appeal was whether or hot the questioned provision banning ecclesiastics from municipal
office has been repealed or not by the 1971 Election Code. Concededly, a minimum of eight
votes as required by the Constitution for the pronouncement of a judgment is needed to
declare that the same has been repealed under this sole issue, or superseded or rendered
inoperative by virtue of the 1935 Constitutional provisions guaranteeing freedom of religion
and prohibiting religious tests for the exercise of civil and political rights under the
supplementary issues of repeal by force of the Constitution raised motu proprio in the main
opinion. The applicable law, then, in non-constitutional cases such as that at bar is found in
Rule 56, section 11 of the Rules of Court, which was designed specifically to cover such cases
where the necessary majority of a minimum eight votes. “For the pronouncement of a
judgment” cannot be had and provides that the appealed judgment shall stand affirmed.
Barredo, J., concurring:
Quo Warranto; Constitutional Law; Administrative Law; Election Law; Ecclesiastics are
incapacitated, not only ineligible, from holding public office; No inconsistency between Sec. 23
of Election Code and Sec. 2175 of Revised Administrative Code. —I agree with the Chief Justice
and Justice Makasiar that the trial court’s ruling, following that of the Commission on
Elections, to the effect that Section 2175 of the Revised Administrative Code has been
repealed by Section 23 of the Election Code of 1971 is not legally correct. More than merely
declaring ecclesiastics ineligible to a municipal office, the Administrative Code provisions
enjoins in the most unequivocal terms their incapacity to hold such office whether by election
or appointment. Indeed, the word “ineligible” in the title of the section is inappropriate. If said
Election Code provision has any incompatibility with the above-mentioned Administrative Code
provisions, it is only by implication and only insofar as members of the Armed Forces of the
Philippines are concerned, in the sense that said army men are now allowed to run for election
to municipal offices provided that they shall be deemed to automatically cease in their army
positions upon the filing of their respective certificates of candidacy. Section 23 does not
define who are qualified to be candidates for public elective positions, nor who are
disqualified. It merely states what is the effect of the filing of certificates of candidacy by
those referred to therein, which do not include ecclesiastics. Thus, the inconsistency
contemplated in Section 249 of the Code as productive of repealing effect does not exist in the
case of Section 23 thereof vis-a-vis Section 2175 of the Revised Administrative Code.
Same; Same; Same; Same; No repugnancy between Sec. 2175 and freedom of religion
provisions in 1935 and 1973 Constitutions; Scope of phrase “no-religious test” in Constitution.
—Accordingly, the only way respondent Fr. Gonzaga can legally hold to the mayorship he is
occupying is for Section 2175 to be declared as violative of the constitutional injunction in
Section 1 (7) of the 1935 Constitution of the Philippines which was in force in 1971 that “No
religious test shall be required for the exercise of civil or political rights” as contended by him.
On this score, it is my considered view that there is no repugnancy at all between Section
2175, on the one hand, and the freedom of religion provision of the Old Constitution, which,
incidentally, is reproduced textually in the New Charter, and the principle of separation of
church and state, on the other. The “no religious test” provision is founded on the long
cherished principle of separation of church and state which the framers of our 1973
Constitution opted to include as an express provision in the fundamental law by ordaining that
such separation “shall be inviolable” (Art. XV, Sec. 15), not as a redundancy but in order to
comprehend situations which may not be covered by the provisions on religious freedom in
the Bill of Rights. (Art. IV, Sec. 8.) It simply means that no public office may be denied to any
person by reason of his religious belief, including his non-belief. Whether he believes in God or
not, or, believing in God, he expresses and manifests his belief in one way or another, does
not disqualify him. But when he becomes a religious or an ecclesiastic, he becomes one who
does not merely belong to his church, congregation or denomination or one who entertains his
own religious belief; he becomes the official minister of his church with distinct duties and
responsibilities which may not always be compatible with the posture of absolute indifference
and impartiality to all religious beliefs which the government and all its officials must maintain
at all times, on all occasions and in every aspect of human life and individual endeavor
precisely because of the separation of church and state and the full enjoyment of religious
freedom by everyone.
Makasiar, J., concurring:
Quo Warranto; Administrative Law; Election Law; No compatibility exists between Sec.
23 of the Election Code and Sec. 2175 of Rev. Administrative Code banning ecclesiastics from
holding elective public office; Scope of two provisions. —It is patent that the two legal
provisions are compatible with each other. Section 24 of the Election Code does not
enumerate the persons disqualified for a public elective or appointive office; but merely
prescribes the effect of filing a certificate of candidacy  by an appointive public officer or
employee or by active members of the Armed Forces of the Philippines or by an officer or
employee in a government-owned or controlled corporation Section 23 states that upon the
filing of his certificate of candidacy, such appointive officer or employee or member of the
Armed Forces shall “ipso facto  cease in his office or position x x.” The obvious purpose is to
prevent such candidate from taking advantage of his position to the prejudice of the opposing
candidates not similarly situated. On the other hand, Section 2175 of the Revised
Administrative Code provides for an absolute disqualification and enumerates the persons who
are so absolutely disqualified to run for or be appointed to a municipal office which
enumeration includes not only public officers but also private individuals like contractors and
ecclesiastics. Section 23 of the Election Code of 1971 applies only to public officers and
employees, including those in government-owned or controlled corporations and members of
the Armed Forces, but not to private citizens, like contractors or ecclesiastics. Hence, a
contractor who is not employed in any government office or government-owned or controlled
corporation or in the Armed Forces, need not vacate his private employment, if any, upon his
filing a certificate of candidacy. Likewise, if he were qualified in the absence of the absolute
disqualifications in Section 2175 of the Revised Administrative Code, a priest or minister is not
ipso facto divested of his position in his church the moment he files his certificate of
candidacy.
Same; Same; Same; Same; To allow ecclesiastics to hold elective public office
considered erosion of principle of separation of church and state. —To allow an ecclesiastic to
head the executive department of a municipality is to permit the erosion of the principle of
separation of Church and State and thus open the floodgates for the violation of the cherished
liberty of religion which the constitutional provision seeks to enforce and protect. For it
requires no in-depth analysis to realize the disastrous consequence of the contrary situation—
allowing ecclesiastics to run for a local position. Can there be an assurance that the decisions
of such ecclesiastic, in the exercise of his power and authority vested in him by reason of his
local position will be clothed with impartiality? Or is not the probability that his decision as well
as discretion be tainted with his religious prejudice, very strong? For considering the
objectives of his priestly vocation, is it not incumbent upon him to color all his actuations with
the teachings and doctrines of his sect or denomination? Is there an assurance that in the
appointment to appointive municipal positions the religious affiliations of the competing
applicants will not play the decisive factor? If the ecclesiastic elected to a municipal office of
mayor is a Catholic, would the chances of an heretic, an Aglipayan, a Protestant or an Iglesia
ni Kristo adherent be as equal as those of a Catholic?
Civil Law; Marriages; Annulment of civil marriages by Catholic Church; Exercise by
Church in promulgating rules governing marriages and defining grounds for annulment and
establishing ecclesiastical tribunals to annul marriages is void ab initio and a usurpation of
State’s sovereign power.—There is need of emphasizing that marriage is a social institution—
not just a mere contractual relation—whose sanctity is recognized and protected by the State,
and is not a matter within the exclusive jurisdiction of the Church. The solidarity of the Filipino
family and sanctity of the marital bond are the primary concern of the State, perhaps even
more than they are of the Catholic church, as the family unit constitutes the strength of the
nation. The Church tribunals in annulling marriages, is usurping the power of the courts
established by the State. Even the authority of the priests and ministers to solemnize
marriages is granted by the State law, without which no priest or minister of any religion or
church or sect or denomination can legally solemnize marriages. If the right of the Catholic
church to annul marriages or to declare marital unions as void ab initio  under its rules were
conceded, then there is no reason to deny the same right to the ministers of the Protestant
church and other religious sect or denomination. The annulment by the Church does not
render the spouses exempt from possible prosecution for bigamy, adultery or concubinage,
should they contract a second marriage or have carnal knowledge of, or cohabit with persons
other than their legitimate spouses of the first marriage which remains lawful in the eyes of
the laws validly promulgated by the State. If the Church tribunal believes that the marital
union is a nullity from the very beginning under the civil laws, then the church should advise
the parties to go to the civil courts. But the Church should not arrogate unto itself State
authority and the jurisdiction of the courts created by the State. To stress, in our country,
there is only one sovereign, the Republic of the Philippines, and not the Roman Catholic
Church or any other church. Only the sovereign, the Republic of the Philippines, can validly
promulgate laws to govern all the inhabitants of the Philippines, whether citizens or aliens,
including laws concerning marriages, persons and family relations. And only the courts
established by the sovereign, the Republic of the Philippines, can apply, interpret and enforce
such laws. The exercise by the Catholic church in promulgating rules governing marriages and
defining the grounds for annulment of the same, as well as establishing ecclesiastical tribunals
to annul marriages or to declare marriages void ab initio, is a usurpation of the sovereign
power of the State.
Antonio, J., concurring:
Quo Warranto; Constitutional Law; Administrative Law; Election Law; No religious test
provision; 1973 Constitution not inconsistent with Administrative Code on no-requirement for
religious test for exercise of civil or political rights; Inclusion of ecclesiastics as ineligible to
hold municipal office in Sec. 2175 of the Adm. Code not violative of the Constitution. —I
likewise take exception to the view expressed in the majority opinion that the supremacy of
the Constitution supplies the answer to the issue of the eligibility of a member of the clergy to
an elective municipal position. The application of Article XVI, Section 2 of the 1935
Constitution, with its counterpart in Article XVII, Section 7 of the 1973 Constitution,
concerning laws inconsistent with the Constitution, is inaccurate. Article 2175 of the Revised
Administrative Code, in including ecclesiastics within the ambit of the prohibition, is not
inconsistent with the explicit provision of the 1935 Constitution that “(n)o religious test shall
be required for the exercise of civil or political rights”. The absence of inconsistency may be
seen from the fact that the prohibition against “religious tests” was not original to the 1935
Constitution. It was expressly provided in the Jones Law that “no religious test shall be
required for the exercise of civil or political rights” (Section 3). At the time of the passage of
the Jones Law, the original Administrative Code (Act 2657) was already in force, having been
enacted in February 1916. In order to harmonize the Code with the Jones Law, the Code was
amended in October 1916, with the passage of Act 2711. The revision was made expressly
“for the purpose of adapting it to the Jones Law  and the Reorganization Act. Notwithstanding
such stated purpose of the amendment, the prohibition against the election of ecclesiastics to
municipal offices, originally embodied in Section 2121 of Act 2657, was retained. This is a
clear indication that it is not repugnant to the “no religious test” doctrine which, as aforecited,
was already expressly provided for in the Jones Law. Considering that Section 2175 of the
Revised Administrative Code, which “cut off forever every pretense of any alliance between
church and state”, is in conformity with Section 15 of Article XV of the Constitution, which
ordains that “the separation of church and state shall be inviolable”, it cannot, therefore, be
said that such statute, in including ecclesiastics among those ineligible to municipal office, is
violative of the fundamental law.
Muñoz Palma, J., dissenting:
Quo Warranto; Constitutional Law; Administrative Law; Election Law; Election of
ecclesiastics to municipal office not violative of separation of church and state; Entry of
ecclesiastics in local government office not necessarily involvement of political in religion. —But
then it is strongly argued that the election or appointment of priests or even nuns to municipal
office will be violative of the separation of church and state. I strongly believe that it is not so.
As an eminent Constitutionalist puts it: what is sought to be achieved under the principle of
separation of church and state is that political process is insulated from religion and religion
from politics; in other words, government neutrality in religious matters. Thus, Our
Constitution provides that no law shall be made respecting an establishment of religion.
Having an ecclesiastic or priest in a local government office such as that of the municipal
mayor will not necessarily means the involvement of politics in religion or vice-versa. Of course
the religion of the man cannot be dissociated from his personality; in truth, his religion
influences his conduct, his moral values, the fairness of his judgment, his outlook on social
problems, etc. As stated in the Hysong decision, inevitably in popular government by the
majority, public institutions will be tinged more or less by the religious proclivities of the
majority, but in all cases where a discretion is reposed by the law, it is to be assumed in the
absence of evidence to the contrary, that the public officer will perform his duty in the manner
the law requires. I may add that there are legal remedies available to the citizenry against
official action violative of any existing law or constitutional mandate.
Aquino, J., concurring:
Quo Warranto; Administrative Law; Election Law; “Ecclesiastics,” Scope of.—The term
“ecclesiastics” refers to priests, clergymen or persons in holy orders or consecrated to the
service of the church. Broadly speaking, it may include nuns.
Same; Same; Same; Constitutional Law; Disqualification of ecclesiastics from holding
municipal office; Disqualification provision and “no-religious test” provision not incompatible. —
It is argued that the disqualification of priest was abrogated by section 1(7), Article III of the
1935 Constitution which provides that “no religious tests shall be required for the exercise of
civil or political rights”. It is assumed that the disqualification is “inconsistent with the religious
freedom guaranteed by the Constitution”. I disagree with that conclusion. There is no
incongruency between the disqualification provision and the “no religious test” provision. The
two provisions can stand together. The disqualification provision does not impair the free
exercise and enjoyment of religious profession and worship. It has nothing to do with religious
freedom. The disqualification of priests from holding a municipal office is an application of the
mandate for the separation of church and state.
Same; Same; Same; Same; Same; Priest who is disqualified from becoming municipal
employee not denied religious freedom or political rights; Scope of “no religious test”
provision; History and background of “no religious test.”—A priest, who is disqualified from
becoming a municipal employee, is not denied any part of his religious freedom or his political
rights. A priest may have the civil right to embrace the religious vocation but he does not have
the constitutional right to be a municipal employee. He can choose between being a municipal
employee and being a priest. He cannot be both. That arrangement is good for himself and his
church and for society. On the other hand, the statutory provision that only laymen can hold
municipal offices or that clergymen are disqualified to become municipal officials is compatible
with the “no religious test” provision of the 1935 Constitution which is also found in section 8,
article IV of the 1973 Constitution and in section 3 of the Jones Law. They are compatible
because they refer to different things. The “no religious test” provision means that a person or
citizen may exercise a civil right (like the right to acquire property) or a political right (the right
to vote or hold office, for instance) without being required to belong to a certain church or to
hold particular religious beliefs. x x x The historical background of the “no religious test”
provision clearly shows that it is consistent with the disqualification of all clergymen from
holding public office and that it cannot be invoked to invalidate the statutory provision on
disqualification. The “no religious test” provision is a reaction against the Test Acts which once
upon a time were enforced in England, Scotland and Ireland. The Test Acts provided that only
those who professed the established religion were eligible for public office. Those laws
discriminated against recusants or Roman Catholics and nonconformists.
PETITION for certiorari to review the judgment of the Court of First Instance of Bohol.
Teleron, J.
The facts are stated in the opinion of the Court.
     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 disqualification2 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 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. Linsañgan,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
nonpayment 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 III 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. Mallare12 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
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
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 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
_______________
19 Ibid, 496.
20 96 Phil. 659 (1955).
 21 30 Phil. 563.      Barredo, J., concurs in the judgment in a separate opinion.

430
     Makasiar, J., concurs in the result in a separate opinion.

430 SUPREME COURT REPORTS ANNOTATED      Antonio J., concurs in the result in a separate opinion.

     Muñoz Palma, J., dissents in a separate opinion.

Pamil vs. Teleron

     Aquino, J., concurs in the result in a separate opinion.

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
SEPARATE OPINION
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 CASTRO, C.J.:
private road law unconstitutional was pronounced forty years after the enactment of the
statute; and in New York, after seventy years had elapsed. It is, perhaps, never too late to re- While I concur in the result, certain overriding considerations, set forth below, constrain me to
establish constitutional rights, the observance of which had been silently neglected.’ ”22 To dissent from the opinion penned by Justice Fernando as well as the written concurrence of
support such a conclusion, no less than the great Chief Justice Marshall, speaking for this Justice Teehankee and Muñoz Palma.
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 1.
likewise relied upon. Thus: “No question was made in that case as to the jurisdiction. It
passed sub silentio, and the court does not consider itself bound by that case.”23 So it should
I reject Justice Teehankee’s argument that section 2175 of the Administrative Code1 has been
be in this litigation. As set forth at the outset, it is not even necessary to annul the challenged
repealed by section 23 of the Election Code of 1971.2 Nor can I accept the conclusion reached
Administrative Code provision. It is merely declared inoperative by virtue of the mandate of
by Justice Fernando that the said provision of the Administrative Code has been superseded or
the 1935 Constitution, similarly found in the present Charter.
rendered inoperative by the specific provisions of the 1935 and 1973 Constitutions that forbid
the requirement of a religious test for the exercise of civil or political rights.
5. Nonetheless, the 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
The thrust of section 23 of the Election Code of 1971 is simple: what is the effect of the
be, as noted at the outset, given full force and application.
filing of certificates of candidacy by appointive, elective and other officials of the government?
The said section is therefore of no relevance (except to the extent that it allows members of
WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set the Armed Forces to run for elective positions). Upon the other hand, section 2175 of the
aside. Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the Administrative Code treats of a disparate matter, which is the absolute disqualification of the
municipality of Albuquerque, Bohol, there being a failure to elect. No pronouncement as to classes of persons enumerated therein.
costs.
Nor does the proscription contained in the said section 2175 prescribe a religious test for
the exercise of civil or political rights. I have searchingly analyzed this provision, and I am
     Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.
unable to infer from it any requirement of a religious test.

     Castro, C.J., concurs in the result in a separate opinion. On the complementary question of implied repeal, it is a time-honored cardinal rule of
legal hermeneutics that for a later provision of law to be considered as having repealed a prior
provision, there must be such absolute repugnance between the two that the prior
     Teehankee, J., dissents in a separate opinion. provision must  give way. I do not discern any such repugnance.

2.
Since section 2175 of the Administrative Code has not been superseded, and has been neither
expressly nor impliedly repealed in so far as the absolute disqualification of ecclesiastics is
concerned, it is perforce the controlling law in the case at bar. Careful note must be taken that
the absolute disqualification is couched in the most compelling of negative terms. The law
reads: “In no case  shall there be elected or appointed  to a municipal office ecclesiastics . . . .”
(emphasis supplied)
Should an ecclesiastic be erroneously allowed by this Court to hold a municipal office,
through the happenstance of a procedural technicality or by the mischief of circumlocution, or
otherwise, then the Court would be particeps criminis  in the negation of the unequivocal and
imperious mandate of the law. The law admits of no exception; there can therefore be none.
And the Court has no constitutional warrant to legislate thru any manner of exercise in
semantics.
3.
I wish to make of record some grave misgiving about allowing ecclesiastics to be elected to
governmental offices.
Our Lord Jesus Christ preached love, charity, compassion and mercy throughout His
earthly existence—and these four virtues, to my mind, make up His timeless gospel.
Unhappily, however, history has not infrequently been an anguished witness to religious
intolerance and persecution by ecclesiastics, whether they were Catholics or Protestants.
Adverting to my own personal experience as a practicing Catholic, I still hear, once in a
great while, sermons or homilies by Catholic priests, delivered from the pulpit or from the
altar, declaring that the Catholic way of life is “the way to salvation,” thereby inescapably
implying (without explicitly stating) that the adherents of other Christian sects and other
religious faiths may be damned from birth.
It is thus entirely possible that the election of ecclesiastics to municipal offices may spawn
small religious wars instead of promote the general community welfare and peace—and these
religious wars could conceivably burgeon into internecine dimensions. Where then would we
consign Pope John XXIII’s ecumenism?
Should the majority of the mayoralties of the Philippines be someday occupied by militant
Catholic ecclesiastics, is it improbable that the next development will be a determined
nationwide campaign by the Catholic Church for the election of ecclesiastics to our national
legislative body? And if this eventuality should come, what then of our cherished tradition of
separation of Church and State? For my part, with history in perspective, the obvious logical
and inevitable consequence is too frightful to contemplate.
In my view, all  ecclesiastics—whoever they are, whatever their faiths, wherever they may be
—should essentially be pastors, immersing themselves around the clock in the problems of the
disadvantaged and the poor. But they cannot be effective pastors if they do not dissociate
themselves completely from every and all bane of politics.
SEPARATE OPINION
TEEHANKEE, J., dissenting:
I dissent from the judgment reversing and setting aside respondent judge’s appealed
resolution of March 4, 1972 which dismissed herein petitioner’s petition below of quo
warranto for disqualification of respondent as the duly elected and qualified mayor of
Alburquerque, Bohol in the 1971 elections due to his being allegedly ineligible therefor as an
ecclesiastic and instead entering a new judgment ordering him to vacate the said office on the
ground of “there being a failure to elect.”
I. I hold on the sole issue joined by the parties in the court below and in this Court on
appeal that the archaic Revised Administrative Code provision barring ecclesiastic inter
alia  from election or reappointment to a municipal office has been repealed by the provisions
of the Election Code of 1971, as correctly ruled earlier by the Commission on Elections (in
denying a separate petition filed by the same petitioner for annulment of respondent’s
certificate of candidacy) and by respondent judge in the case at bar.
The sole issue joined in the case at bar by the parties is on the purely legal question of
whether section 2175 of the Revised Administrative Code which bars from election or
appointment 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” is still in force or has been repealed by the provisions of the Election Code of
1971, particularly section 231 thereof which allows  “every person holding a public appointive
office or position, including active members of the Armed Forces” to run for any public elective
office but provides for their cessation in office ipso facto  on the date they file their certificate
of candidacy and excludes  ecclesiastics and municipal public works contractors from those
declared ineligible or disqualified from running for an elective office.
This is incontrovertible from the record.
Respondent judge’s pre-trial order of January 25, 1972 defining the sole issue of law as
joined and submitted by the parties expressly records that and gave the parties ten days to
file their respective memoranda, and declared the case submitted for resolution upon
expiration of the period.
“The parties agreed during this pre-trial conference that the question of whether or not
respondent resigned from the Catholic hierarchy as a priest is immaterial to the issues raised
in the instant case and for that reason they are ready to submit the instant case for resolution
by the Court purely on question of law, that is, whether or not the provisions of the Election
Code of 1971 supersedes and revokes the provisions of the Revised Administrative Code which
prohibits ecclesiastics from running for municipal elective position.”2
and gave the parties ten days to file their respective memoranda, and declared the case
submitted for resolution upon expiration of the period.
Petitioner’s sole assignment of error in his appellant’s brief at bar is “(T)hat the court a
quo  erred in ruling that section 2175 of the Revised Administrative Code is revoked or
superseded by the provisions of Republic Act No. 6388, otherwise known as the Election Code
of 1971.”3 And his only argument in support thereof—insofar as is relevant to this Court’s
judgment—was as follows:
“The repealing clause of the Election Code of 1971 does not mention the Revised
Administrative Code or Section 2175 thereof as among those expressly repealed. In the
absence of inconsistency with any of the provisions of the Election Code, Sec. 2175 is neither
repealed, expressly or impliedly, nor revoked or superseded by any existing law, and therefore
must continue to stand in full force and effect.
“It is the intent of Congress to retain prohibitions of ecclesiastics from holding municipal
office in order to maintain inviolate the great principle underlying the Philippine Constitution,
that is—THE COMPLETE SEPARATION OF THE CHURCH AND STATE. The preservation of this
principle is precisely the moving spirit of the legislature in passing Sec. 2175 of the Revised
Administrative Code and in EXCLUDING ecclesiastics from the enumeration of persons in Sec.
23 of the Election Code of 1971. To allow ecclesiastics to run for a municipal office means an
absolute abandonment of this principle.
“For a number of cases, the Supreme Court has disqualified ecclesiastics from assuming a
municipal office. In an identical case of Pedro Villar vs. Gaudencio Paraiso, No. L-8014, March
14, 1955; 96 Phil. 659, the Supreme Court disqualified respondent Gaudencio Paraiso, then a
minister of the United Church of Christ, from the office of Mayor of Rizal, Nueva Ecija, for
being an ecclesiastic and therefore ineligible to hold a municipal office.”4
Now, prior to the filing of the case below, petitioner (who was the incumbent mayor of
Alburquerque, Bohol) had before the 1971 elections filed a petition with the Commission on
Elections5 for the annulment of the certificate of candidacy as an independent candidate
(Liberal Party guest candidate) for the elective position of mayor of the municipality of
Alburquerque, Bohol of his lone opponent, herein respondent Reverend Margarito R. Gonzaga,
Catholic parish priest of the municipality of Jagna, Bohol on the ground of the latter’s being
barred from election to said office as an ecclesiastic.
The Comelec unanimously denied the petition, ruling that respondent was eligible for the
office since section 2175 of the Revised Administrative Code had been repealed by force of the
Election Code of 1971 which in “Section 249 (thereof) expressly repeals R.A. No. 180, R.A. No.
3588 and all other laws, executive orders, rules and regulations, or parts
thereof, inconsistent  with the Code.”6
The Comelec ruled that soldiers in active service and persons receiving salaries or
compensation from provincial or national funds “are obviously now allowed to run for a public
elective office because under Sec. 23 of the Election Code of 1971 ‘every person holding a
public appointive office or position, including active members of the Armed Forces’ shall ipso
facto  cease in their office or position on the date they file their certificates of candidacy. This
implies that they are no longer disqualified from running for an elective office.”
The Comelec further ruled that as to the two remaining categories formerly banned under
the Revised Administrative Code, “ecclesiastics and contractors for public works of the
municipality are allowed to run for municipal elective offices under the maxim, ‘Inclusio unius
est exclusio alterius’, they being not included in the enumeration of persons ineligible under
the New Election Code. The rule is that all  persons possessing the necessary
qualifications, except those expressly disqualified by the election code , are eligible to run for
public office.”
Respondent judge, expressing agreement with the Comelec ruling in that case, held that
respondent is not disqualified nor ineligible to hold the position of mayor of Alburquerque to
which he had been duly elected and proclaimed. Respondent judge prescinded from the fact
that respondent had resigned his position as parish priest of another town, Jagna, and his
resignation accepted on September 7, 1971 by the Bishop of Tagbilaran and that his authority
to solemnize marriages had at his request of September 7, 1971 been cancelled on October
22, 1971 by Director of the National Library Serafin D. Quiason,7 all before  the November,
1971 elections (unlike in Vilar vs. Paraiso8 wherein this Court upheld the trial court’s refusal to
give credence to the “supposed resignation” of therein respondent as a minister of his
church). He bypassed also the well-taken procedural question that petitioner not having
appealed the adverse Comelec ruling in the earlier case to this Court was bound thereby as
the law of the case  and could no longer bring this second action on the same question after
his defeat in the elections.
In my view, the Comelec ruling and respondent court’s resolution agreeing therewith stand
on solid ground. As the Comelec stressed in its ruling, the Election Code of 1971 as the
applicable law in this case expressly enumerates all  those
declared ineligible  or disqualified  from candidacy or if elected, from holding office, viz,
nuisance candidates under section 31, those disqualified on account of having been declared
by final decision of a component court or tribunal guilty of terrorism, election overspending,
solicitation or receipt of prohibited contributions or violation of certain specified provisions of
the Code under section 25, or having been likewise declared disloyal to the constituted
government under section 27 or those presidential appointees who prematurely seek to run
for elective office without complying with the compulsory waiting periods of 150 days (for
national office) and 120 days (for any other elective office) after the termination of their
tenure of office under section 78. All other persons possessing the necessary qualifications
and not  similarly expressly declared ineligible or disqualified by the said Election Code, such as
ecclesiastics like respondent or contractors for municipal public works cannot but be
deemed eligible  for public office. Thus, ecclesiastics’ eligibility for national  office has
universally been conceded and has never been questioned.
As already stated above, appointive public office holders and active members of the Armed
Forces are no longer disqualified from running for an elective office, because section 23 of the
1971 Election Code manifestly allows them to do so and provides that they “shall ipso
facto  cease in (their) office or position on the date (they) file (their) certificate of candidacy.”
Ecclesiastics and municipal public works contractors are no longer included in the extensive
enumeration of persons ineligible under the said Election Code. Under the maxim of

“Inclusio unius, exclusio alterius” and the general rule that all persons possessed of the
necessary qualifications except those expressly disqualified by the Election Code are eligible to
run for public office, the ban against them in section 2175 of the Revised Administrative Code
must be deemed set aside under the 1971 Election Code’s repealing clause.
The wisdom or desirability of the elimination of such prohibitions are of course beyond the
province and jurisdiction of the courts. Aside from such prohibition being at war with the
Constitutional injunction that “no religious test shall be required for the exercise of civil or
political rights,” the legislators must have considered that there was no longer any rhyme or
reason for the archaic ban against ecclesiastics’ election to a municipal office when there is no
such ban against their running for national office and after all, vox populi est vox Dei. As to
the lifting of the ban against municipal public works contractors, suffice it to state that there
are other laws, e.g. the Anti-Graft and Corrupt Practices Act which if properly enforced should
provide more than adequate safeguards for the public interests.
There is no gainsaying that the Election Code of 1971 is a subsequent comprehensive
legislation governing elections and candidates for public office and its enactment, under the
established rules of statutory construction, “(as) a code upon a given subject matter
contemplates a systematic and complete body of law designed to function within the bounds
of its expressed limitations as the sole regulatory law upon the subject to which it relates, x x
x. The enactment of a code operates to repeal all prior laws upon the same subject matter
where, because of its comprehensiveness, it inferentially purports to be a complete treatment
of the subject matter. x x x.”9
The repeal of the ban is further made manifest in the light of the 250 sections of the 1971
Election Code since “(T)he intent to repeal all former laws upon the subject is made apparent
by the enactment of subsequent comprehensive legislation establishing elaborate inclusions
and exclusions of the persons, things and relationships ordinarily associated with the subject.
Legislation of this sort which operates to revise the entire subject to which it relates, by its
very comprehensiveness gives strong implication of a legislative intent not only to repeal
former statutory law upon the subject, but also to supersede the common law relating to the
same subject.”10
As a pure question of law, on the sole issue joined by the parties, therefore, I hold that the
ban in section 2175 of the Revised Administrative Code against the election of ecclesiastics
(and the three other categories therein mentioned) to a municipal office has been repealed by
the provisions of the Election Code of 1971, which nowhere in its all-embracing and
comprehensive text mentions ecclesiastics (as well as the three other categories in the
aforesaid Administrative Code provision) as among those ineligible or disqualified to run for
public office (national or local).
II. On the constitutional dimension given motu proprio to the case in the main opinion of
Mr. Justice Fernando, by way of “constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned”11, I concur with the main
opinion, concurred in by five other members of the Court, viz, Justices Muñoz Palma,
Concepcion Jr., Santos, Fernandez and Guerrero that the archaic Administrative Code
provision declaring ecclesiastics ineligible for election or appointment to a municipal office is
inconsistent with and violative of the religious freedom guaranteed by the 1935
Constitution12 and that to so bar them from office is to impose a religious test in violation of
the Constitutional mandate that “No religious test shall be required for the exercise of civil or
political rights.”
Both the 1935 Constitution (which is applicable to the case at bar) and the 1973
Constitution guarantee in practically identical terms the fullest religious freedom. To assure
that there is no impediment to the fullest exercise of one’s religious freedom, the Constitution
prohibits that there be a state-established union and thereby decrees that there must be
separation of church and state. (The 1973 Constitution redundantly stresses in its General
Provisions, Article XV, section 15 that “(T)he separation of church and state shall be
inviolable.”). The free exercise of one’s religion and freedom of expression of religious
doctrines and beliefs (positive  as well as negative) and the freedom to perform religious rites
and practices are guaranteed by the Constitution’s mandate that “no law shall be made . . .
prohibiting the free exercise (of religion)” and that “the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be
allowed.” In order to assure the fullest freedom of the individual in this regard and to prevent
that the State negate or dilute religious freedom by according preference to one religious
organization as against others, the Constitution finally commands that “no religious test shall
be required for the exercise of civil or political rights.”
It is conceded that the no-religious test clause constitutionally bars the state from
disqualifying a non-believer, an atheist or an agnostic from voting or being voted for a public
office for it is tantamount to a religious test and compelling them to profess a belief in God
and a religion. By the same token, the same clause is equally applicable to those at the
opposite end, let us call them the full believers who in their love of God and their fellowmen
have taken up the ministry of their church or the robe of the priest: to disqualify them from
being voted for and elected to a municipal office (under the questioned Administrative Code
provision) is to exact a religious test for the exercise of their political rights for it amounts to
compelling them to shed off their religious ministry or robe for the exercise of their political
right to run for public office.
Stated in modern context, the Satanist is concededly not disqualified under the questioned
Administrative Code provision from election to municipal office. To enforce the same statute’s
disqualification against ecclesiastics is to wrongfully invade the ecclesiastic’s freedom of belief
and religion and to impose upon him a religious test in flagrant violation of the Constitution. In
contrast to the Satanist who is not subjected to a religious test and disqualified for his picking
up Satan’s robe against God, the ecclesiastic is disqualified for professing the profoundent
religious belief in God and wearing His cross on his lapel—he is to be barred simply because
he is an ecclesiastic.
I hold, therefore, that aside from the strictly legal question presented by the parties and
correctly resolved by the Comelec in the earlier case and by the lower court in the case at bar,
to wit, that the ban in section 2175 of the Revised Administrative Code against the election of
ecclesiastics (among others) to a municipal office has been repealed by the 1971 Election
Code, it is also correct to declare by way of obiter dictum  (since it has not been raised or
placed in issue in the case at bar) as the main opinion principally holds, that this archaic
provision of the Administrative Code of 1917 must also be deemed as no longer operative by
force of the constitutional mandate that all laws inconsistent with and violative of the
Constitution shall cease to be in force.13
The main thrust of the five separate concurrences for upholding the questioned ban of
ecclesiastics from public (municipal office) is the fear of “religious intolerance and persecution
by ecclesiastics” and the “oppression, abuses, misery, immorality and stagnation” wreaked by
the friars during the Spanish regime. But it is not appreciated therein that this was due to the
union of the State and the Church then—a situation that has long ceased since before the turn
of the century and is now categorically proscribed by the Constitution.
As His Eminence, Jaime L. Cardinal Sin, recently observed:
“Union of the Church and the State invariably ends in the Church being absorbed, manipulated
or dominated by the State, or in the State being dominated by the Church. Usually, it is the
former eventuality that takes place, for the Church possesses no armed or coercive power
comparable to what the State has.
“At the beginning of her history, the Church invested the kings of recently converted
countries with the office and title of Protectors of the Church. This was all right so long as the
kings were good and holy men, like St. Stephen of Hungary, or at least reasonable decent
men, like Charlemagne of France, but saintly and decent men are often succeeded by
scoundrels, and the protectors—in the wry observation of the King of Siam—wound up
‘protecting the Church out of everything that she possessed.’
“When, in some rare instances, it is the Church that dominates the State, the result is what
we know as clericalism.
“Both alternatives, it is obvious, are undesirable. When the Church is dominated by the
State, she becomes a tool for the furtherance of wordly aims. And when the State is
dominated by the Church, then the Church tends to get confused as to her nature, identity,
role and mission. The Church, after all, is a supernatural society. Consequently, she is
weakened when she places her reliance on temporal power and resources rather than on the
grace of Almighty God. Clericalism provokes the natural reaction of separation, by which is
meant the isolation and strict confinement of the Church to the sacristy. It is like placing the
Church under house arrest.”14
Historians have noted that with the imposition of the separation of state and church by the
American regime, “(T)he Catholic Church, however, derived under the principle of separation
of Church and State positive benefits and advantages. Her freedom was greatly enhanced.
She was no longer subject to the various forms of supervision and control imposed upon her
during the Spanish regime. She was freed from government intervention in the making of
appointments to positions in the ecclesiastical system, in the creation of parishes and in the
establishment of institutions of religious character.”15
The Spanish era of “religious intolerance and oppression” and the new era of separation of
state and church easily led to the passage of the ban against ecclesiastics. There was deep
prejudice and resentment against the Spanish friars which rubbed off on the Filipino Catholic
parish priests. Catholics and the new religious groups of Aglipayans and Protestants were
reported to have harbored great mistrust of each other and fear that one group would very
likely use political power as an instrument for religious domination over the others.
But it cannot be denied that the situation has radically changed since then. Specially after
Vatican II in 1965, the spirit of ecumenism, mutual respect, and cooperation have marked the
relations between Catholics, Protestants, Aglipayans, Iglesia ni Kristos  and other religious
denominations.
For Catholics, the Vatican synod declared: “that the human person has a right to religious
freedom. This freedom means that all men are to be immune from coercion on the part of the
individuals or of social groups and of any human power, in such wise that in matters religious
no one is to be forced to act in a manner contrary to his own beliefs. Nor is anyone to be
restrained from acting in accordance with his own beliefs, whether privately or publicly,
whether alone or in association with others, within limits.”16
Vatican II also declared that “Cooperation among all Christians vividly expresses that bond
which already unites them . . . It should contribute to a just appreciation of the dignity of the
human person, the promotion of the blessings of peace, the application of Gospel principles to
social life, the advancement of the arts and sciences in a Christian spirit. Christians should also
work together in the use of every possible means to relieve the afflictions of our times, such
as famine and natural disasters, illiteracy and poverty, lack of housing and the unequal
distribution of wealth. Through such cooperation, all believers in Christ are able to learn easily
how they can understand each other better and esteem each other more, and how the road to
the unity of Christians may be made smooth.”17
If the friars then  grabbed the so-called friar lands through oppressive exploitation of the
masses, the priests of today have taken up the cudgels for the masses and are at the forefront
of their struggle for social justice and a just society.
The days are long gone when the priest is supposed to confine himself to the sacristy and
devote himself solely to spiritual, not temporal, matters. Where the State fails or falters, the
priest must needs help minister to this temporal power has resulted from their adjusting
themselves to the realities and imperatives of the present day world.
As already indicated above, it is to be noted that the only statutory prohibition was to ban
ecclesiastics from appointment or election to municipal office. There is no ban whatsoever
against their election to or holding of national  office, which by its nature and scope is
politically more significant and powerful compared to a local office.
The national experience with ecclesiastics who have been elected to national offices has
shown that contrary to the unfounded fears of religious prejudice and narrow-mindedness
expressed in some of the concurring opinions, they have discharged their task with great
competence and honor, since there is basically no incompatibility between their religious and
lay offices, as witness the elections and participation of Msgr. Gregorio Aglipay as delegate to
the Malolos Congress of 1898, Minister Enrique Sobrepeña and Philippine Independent Church
Bishop Servando Castro as delegates to the 1934-1935 Constitutional Convention, Frs. Pacifico
Ortiz and Jorge Kintanar and three other priests as delegates to the 1971 Constitutional
Convention, and again Fr. Jorge Kintanar as member of the current Interim Batasang
Pambansa.
As far as local offices are concerned, the best proof of the Filipino ecclesiastic’s capacity to
discharge his political office competently and with detachment from his religious ministry or
priesthood is the very case of respondent Fr. Gonzaga, who as far as the record shows has
efficiently discharged the role of mayor of Alburquerque since his assumption of office on
January 1, 1972 up to the present to the satisfaction of his constituents and without any
complaints. The question of whether a priest or cleric should exercise his political right of
seeking public office, national or local, is after all best left to the decision of his church and his
own judgment. After all, it is to be presumed that no responsible person would seek public
office knowing that his ecclesiastical duties would be a hindrance to his rendering just and
efficient public service. Here, respondent after his decision to run for election in his hometown
of Alburquerque, duly resigned his position of parish priest in another town, that of Jagna,
Bohol long before the holding of the election. The main thing is that the Constitutional
mandate of no religious test for the exercise of one’s civil or political rights must be respected.
The ecclesiastic is free to seek public office and place his personal merits and qualifications for
public service before the electorate who in the ultimate analysis will pass judgment upon him.
Father Jose Burgos of the famed Gomburza  martyrs took up in his manifesto of 1864 the
battle of the native clergy against the Spanish friars who had found their parishes to be
lucrative positions and refused to give them up to the Filipino seculars who were increasing in
number and improving in caliber. He boldly accused the friars of “enrichment, greed and
immorality” and they marked him as their greatest enemy. As the historians now assess it,
“Indeed, whether or not Father Burgos meant it, his manifesto of 1864 galvanized and fused
the scattered and isolated areas of discontent in the land, so that Filipino nationalism which
had its birth pangs in Mac-tan finally emerged full-grown. . . . . . . The travail of the Filipino
clergy served to galvanize Filipino nationalism, existing since Lapulapu in unintegrated and
undeveloped form from Tuguegarao to Taglibi, from Sulu to Sarrat and Sagada. As in Spain
itself, nationalism in the Philippines needed an infusion of liberalism before it could acquire
content and direction. And, perhaps without meaning to do so, it was the peculiar contribution
of the Filipino clergy, much respected and most influential  among the people, to give
substance and meaning to their fellow Filipinos’ love of freedom and coun-try.”18
Thus, “the dispute between secular and regular clergy over the parishes . . . . . became a
nationalist movement, which joined forces with the lay reformists who had come into the open
. . . . .” and “(T)he new movement blew like a wind of change through every level and layer of
society except the impregnable ranks of the friars. Then, suddenly, it became a whirlwind that
sucked three pious secular priests into its vortex. For the Cavite Mutiny of 1872 exploded and
they were accused of complicity, court-martialed and garroted.”19
It was our national hero, Dr. Jose Rizal, who “captured the historic galvanizing mission
which the martyr priests accomplished for their people and country, as well as the cruelty and
inhumanity of the revenge in the guise of justice inflicted upon them, when in 1891 he
dedicated his second novel El Filibusterismo [Subversion]20 to the three martyr priests in the
following words: [‘The Church, by refusing to unfrock you, has put in doubt the crime charged
against you; the Government by enshrouding your trial in mystery and pardoning your co-
accused has implied that some mistake was committed when your fate was decided; and the
whole of the Philippines in paying homage to your memory and calling you martyrs totally
rejects your guilt.’]”21
It would indeed be an ironic twist of history if the martyrdom of Frs. Burgos, Gomez and
Zamora in the defense of freedom and the dignity and rights of the Filipino clergy which
galvanized Filipino nationalism and eventually overthrew the Spanish regime were to be set at
naught and the Filipino ecclesiastics were to remain banned from seeking public office to serve
their fellowmen, because the spectre of the friars who abused and maltreated the people
continues to haunt us and we would now visit their sins upon our own clergy.
III. The disposition of the case and judgment granting quo warranto—notwithstanding that
there stand seven  votes for affirming respondent judge’s dismissal of the quo warranto,
namely, Justices Fernando, Teehankee, Muñoz Palma, Concepcion Jr., Santos, Fernandez and
Guerrero, on the ground that the questioned provision barring ecclesiastics from municipal
office has been superseded and rendered inoperative by the no-religious test clause of the
Constitution and by the Election Code of 1971 and only five votes for upholding as in full force
and effect the questioned ban on ecclesiastics, namely, the Chief Justice and Justices Barredo,
Makasiar, Antonio and Aquino is contrary to the Rule of Court providing that where the Court
in banc is equally divided in opinion and no decision by eight Justices is reached (as required
by Article X, section 2 [2] of the 1973 Constitution for the pronouncement of a judgment) the
appealed judgment or order shall stand affirmed. Since the lower court dismissed the quo
warranto  petition and allowed respondent to remain in office, such dismissal should stand
affirmed, rather than the judgment now rendered granting the quo warranto petition and
ordering respondent to vacate the office.
As stated in the main opinion, seven Justices are for affirmance of the appealed judgment
“as the challenged provision is no longer operative either because it was superseded by the
1935 Constitution or repealed” while five Justices hold that “such a prohibition against an
ecclesiastic running for elective office is not tainted with any constitutional infirmity.”22 The
writer of the main opinion, however, joined by four others [namely, Justices Concepcion Jr.,
Santos, Fernandez and Guerrero] invoke the legal principle that “the presumption of validity
[of a law] calls for its application” and therefore have voted with the minority of five [namely,
the Chief Justice and Justices Barredo, Makasiar, Antonio and Aquino] to reverse and set aside
the judgment a quo  and to order that “respondent Gonzaga . . . immediately . . . vacate the
mayoralty of the municipality of Alburquerque, Bohol, there being a failure to elect.”23
As a preliminary observation, it should be noted that the judgment or dispositive portion of
the main opinion ordering respondent Gonzaga to vacate his office “there being a failure to
elect”, is not correct, since said respondent was duly elected and proclaimed after  his
candidacy and qualification for the office had been precisely upheld before the holding of the
1971 elections by the Commission on Elections which dismissed the same herein petitioner’s
petition with it to annul respondent’s certificate of candidacy, on exactly the same ground as
here, based on section 2175 of the Administrative Code, which dismissal was not  appealed by
petitioner and is therefore the law of the case.
Be that as it may, the question confronting the Court is what is the applicable law in a case
like this where there is an inconclusive or indecisive vote of seven to five for affirming the
appealed judgment?
 To begin with, the applicable law is not  the Constitutional provision which requires a
qualified vote of at least ten members  of this Court to declare unconstitutional a law, treaty or
executive agreement.24 In such constitutional cases, failure to reach the qualified vote of ten
members results in a declaration that the constitutionality of the questioned law is deemed
upheld. Concededly, the present action is not  one to declare unconstitutional the questioned
provision banning ecclesiastics from municipal office. The action was filed by petitioner
precisely invoking the law’s ban in order to disqualify respondent. The lower court merely
sided with the Comelec’s ruling in an earlier case filed by petitioner for the same purpose of
disqualifying respondent, and dismissed the case below upholding respondent’s defense that
the law had been repealed by the 1971 Election Code. This was the sole  issue both before the
lower court and this Court.
As shown hereinabove, the sole  issue joined by the parties in the court below and in this
Court on appeal was whether or not the questioned provision banning ecclesiastics from
municipal office has been repealed or not by the 1971 Election Code. Concededly, a minimum
of eight votes  as required by the Constitution for the pronouncement of a judgment is needed
to declare that the same has been repealed under  this  sole issue, or superseded or rendered
inoperative by virtue of the 1935 Constitutional provisions guaranteeing freedom of religion
and prohibiting religious tests for the exercise of civil and political rights under
the supplementary  issue of repeal by force of the Constitution raised motu proprio  in the main
opinion.25
The applicable law, then, in non-constitutional cases such as that at bar is found in Rule
56, section 11 of the Rules of Court, which was designed specifically to cover such cases
where the necessary majority of a minimum eight votes  “for the pronouncement of a
judgment”26 cannot be had and provides that the appealed judgment shall stand affirmed.
The appealed judgment in the case at bar dismissing the quo warranto  action must stand
affirmed  under the cited Rule, which provides that:
“SEC. 11. Procedure if opinion is equally divided.—Where the court in banc is equally divided
in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on re-
hearing no decision is reached, the action shall be dismissed if originally commenced in the
court; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all
incidental matters, the petition or motion shall be denied.” (Rule 56)
As restated in Moran’s Comments, “(I)n appealed  cases, the above provision states that the
judgment or order appealed from shall stand affirmed. This refers to civil  cases, the rule in
criminal cases being that provided by section 3 of Rule 125, which states that in such cases
the judgment of conviction of the lower court shall be reversed and the defendant acquitted.
If the judgment appealed from declares a law or a treaty unconstitutional, or imposes death
penalty and the concurrence of at least eight [now ten] Justices cannot be had, the Supreme
Court shall so declare, and in such case the validity or constitutionality of the act or treaty
involved shall be deemed upheld, or the penalty next lower to death shall be imposed.”27
Apparently, the five members of the Court headed by the writer of the main opinion found
themselves in a conflict between the principle of presumption of validity of a law which
normally calls for its implementation by the executive department—until declared invalid by
the courts and their view that the challenged legal provision barring ecclesiastics from
municipal office is no longer operative either because it has been superseded by the
Constitution or repealed by the 1971 Election Code. In such case, it is submitted with all due
respect that they erred in joining votes with the minority of five opining to the contrary, for
the cited Rule expressly provides that in such a case of a split Court  with neither side
obtaining the necessary number of votes for the pronouncement of a judgment upholding
their conflicting  views, the appealed judgment shall stand affirmed
For the appealed judgment to stand affirmed does not mean that “the Court would be
particeps criminis  in the negation of the unequivocal and imperious mandate of the law.”28 It
would simply be the law of the case, because of the inconclusive vote. It is just the same as if
petitioner had not  appealed or if his appeal had been dismissed for failure to prosecute the
same.
If the lower court had ruled in favor of petitioner and respondent were the appellant, the
appealed judgment (against respondent in this example) would stand affirmed, despite the
seven votes in his favor. But the vote would be inconclusive just the same. The issue of
whether or not the challenged law is deemed superseded by the Constitution or repealed by
the 1971 Election Code would have to be left for another case and another time.
Put in another way, even assuming that the lower court erred in adjudging that the
questioned law has been repealed, under the cited and applicable Rule, this Court would need
8 votes to overturn such judgment, just as it would need the same number of votes for this
Court to overturn the judgment if it had been the other way around. This is the necessary
consequence in cases where this Court cannot arrive at a majority one way or the other.
The same situation has happened more frequently in appeals from criminal convictions by
the lower courts wherein the applicable rule is the reverse, with Rule 125, section 3 providing
that where the necessary majority of eight votes for affirming the judgment of conviction or
acquitting the accused cannot be had, “the judgment of conviction  of the lower court shall be
reversed and the defendant acquitted.”29
The provisions of the Penal Code and Statutes are generally absolute provisions against
the commission of the criminal acts therein defined. But the failure of the Court to obtain the
necessary majority of eight votes (in non-capital  cases) for the pronouncement of
a judgment  affirming the conviction  (and resulting in the acquittal of the accused) does not
connote in any manner that this Court has thereby become a particeps criminis  in the violation
of the criminal law. Neither does it mean that the Court has thereby rendered the penal
statute void or ineffectual with the accused’s acquittal in the specific criminal case. To cite an
example, in the case of Ramirez vs. Court of Appeals, 71 SCRA 231 (June 10, 1976), the
accused was therein acquitted of the crime of falsification  on a 4 to 5 vote (out of 11 Justices
with 2 abstentions), but it cannot be said that the prevailing opinion thereby obliterated the
crime of falsification under Art. 172 of the Revised Penal Code simply because of the alleged
repeal of CB Circular 20 by CB Circular 133 which served as the main reason for dividing the
Court in the case.
If the majority were to follow the same approach in these criminal cases where there is a
similar division of the Court as to whether a particular penal statute or provision has been
repealed or rendered inoperative and the necessary majority cannot be had, as in the cited
case of Ramirez, supra  —then even those who vote for acquittal (as those who voted for
declaring the questioned law inoperative) must cross over and join those voting contrarily  for
affirmance of conviction in order to uphold the principle applied herein by the majority that
“the presumption of validity [of a law] calls for its application”—in violation of the cited Rules
governing a divided Court’s failure to reach the necessary majority.
In closing, it should be borne in mind that petitioner’s action to disqualify respondent and
to be proclaimed as Alburquerque, Bohol mayor in his stead is an exercise in futility because
(a) the office’s term has long expired and (b) more importantly, even if the term may be
deemed as not having expired, this Court has consistently held that a petitioner in such
disqualification proceedings cannot be proclaimed as elected to the office (in lieu of a
disqualified respondent) which is the only thing that petitioner has vainly sought herein—to be
proclaimed and seated as mayor vice the respondent who defeated him in the election. As
held in Vilar vs. Paraiso, supra:30 “(A)s to the question whether, respondent being ineligible,
petitioner can be declared elected, having obtained second place in the elections, our answer
is simple: this Court has already declared that this cannot be done in the absence of an
express provision authorizing such declaration. Our law not only does not contain any such
provision but apparently seems to prohibit it.”
BARREDO, J.: Concurring—
My vote is to grant the petition and to declare respondent Rev. Fr. Margarito R. Gonzaga
disqualified under Section 2175 of the Revised Administrative Code from being mayor of
Alburquerque, Bohol, which position he has assumed by virtue of his winning in the local
elections held in 1971, for which reason he should be ordered to vacate the same. I would,
however, limit the grounds for my vote to the considerations hereinunder stated, for it is not
the danger of any form or degree of church control of state affairs that I perceive in allowing
an ecclesiastic to be elected as mayor, the occurrence of such a contingency being probably
quite remote now with the character of the Filipino clergy who are a far cry from the friars
during the Spanish times. I just cannot imagine how a duly ordained minister of God whose
sacred life mission is supposed to be to serve God and to advance and defend the interests of
His church above all other interests can properly act as a government official committed to
enforce state policies which may conflict with the fundamental tenets of that church.
I agree with the Chief Justice and Justice Makasiar that the trial court’s ruling, following
that of the Commission on Elections, to the effect that Section 2175 of the Revised
Administrative Code has been repealed by Section 23 of the Election Code of 1971 is not
legally correct. More than merely declaring ecclesiastics ineligible to a municipal office, the
Administrative Code provisions enjoins in the most unequivocal terms their incapacity to hold
such office whether by election or appointment. Indeed, the word “ineligible” in the title of the
section is inappropriate. If said Election Code provision has any incompatibility with the above-
mentioned Administrative Code provision, it is only by implication and only insofar as members
of the Armed Forces of the Philippines are concerned, in the sense that said army men are
now allowed to run for election to municipal offices provided that they shall be deemed to
automatically cease in their army positions upon the filing of their respective certificates of
candidacy. Section 23 does not define who are qualified to be candidates for public elective
positions, nor who are disqualified. It merely states what is the effect of the filing of
certificates of candidacy by those referred to therein, which do not include ecclesiastics. Thus,
the inconsistency contemplated in Section 249 of the Code as productive of repealing effect
does not exist in the case of Section 23 thereof vis-a-vis Section 2175 of the Revised
Administrative Code.
Accordingly, the only way respondent Fr. Gonzaga can legally hold to the mayorship he is
occupying, is for Section 2175 to be declared as violative of the constitutional injunction in
Section 1 (7) of the 1935 Constitution of the Philippines which was in force in 1971 that “No
religious test shall be required for the exercise of civil or political rights” as contended by him.
On this score, it is my considered view that there is no repugnancy at ail between Section
2175, on the one hand, and the freedom of religion provision of the Old Constitution, which,
incidentally, is reproduced textually in the New Charter, and the principle of separation of
church and state, on the other.
The “no religious test” provision is founded on the long cherished principle of separation of
church and state which the framers of our 1973 Constitution opted to include as an express
provision in the fundamental law by ordaining that such separation “shall be inviolable” (Art.
XV, Sec. 15), not as a redundancy but in order to comprehend situations which may not be
covered by the provisions on religious freedom in the Bill of Rights. (Art. IV, Sec. 8.) It simply
means that no public office may be denied to any person, by reason of his religious belief,
including his non-belief. Whether he believes in God or not, or, believing in God, he expresses
and manifests his belief in one way or another, does not disqualify him. But when he becomes
a religious or an ecclesiastic, he becomes one who does not merely belong to his church,
congregation or denomination or one who entertains his own religious belief; he becomes the
official minister of his church with distinct duties and responsibilities which may not always be
compatible with the posture of absolute indifference and impartiality to all religious beliefs
which the government and all its officials must maintain at all times, on all occasions and in
every aspect of human life and individual endeavor precisely because of the separation of
church and state and the full enjoyment of religious freedom by everyone. There is no known
safeguard against witting or unwitting, patent or latent discrimination that a religious may
lapse into when confronted with a situation where opposing religious interests maybe
involved. And yet, it is in such a predicament that paramount public interest would demand
that he should neither hesitate nor equivocate. Having in mind the imperfection of all human
beings, I cannot believe that any religious, found in such unenviable situation would be able to
successfully acquit himself from all suspicion of concealed interest in favor of his own church.
What is worse, any attempt on his part to look the other way just to avoid such suspicion of
partiality might only result in more impropriety or injustice. Indeed, as I see it, even the day of
perfect and sincere ecumenism is not yet here.
It is already a matter of deep anxiety for everyone in any political unit concerned that a
devout Catholic or Protestant or Muslim layman holding a public office therein may find it
extremely difficult, if not impossible, to dissociate his religious thinking from his judgment or
motivations as he acts in the performance of his duties. Certainly, it would be a graver
problem if the official should happen to be a religious minister, since his graver responsibility
to his church in the premises could imaginably outweigh in his decision process the demands
of the general public interest. As a simple matter of good government principle, the possibility
of such an undesirable contingency must be avoided. To my mind, it is just as objectionable
for an official of the civil government to try to take part in running any religious denomination
or order, as it is for a religious to involve himself in the running of the affairs of government as
an official thereof. The observations of Justice Teehankee anent some religious leaders named
by him who have occupied positions in the national government either as delegates to the
Constitutional Conventions of 1934 and 1971 or as members of the national legislature are, I
regret to say, misplaced. Apart from the fact that they were too few to decisively impress the
inalienable religious principles of their respective churches on the ultimate decisions of the
conventions or the legislative bodies where they sat regarding matters in which said churches
were interested, one has to be utterly naive to expect that Father Kintanar, for instance, will
not be guided exclusively by the doctrines and declared official position of the Roman Catholic
Church related to such controversial subjects as divorce, annulment of marriages and birth
control, to cite only a few. Withal, Section 2175 covers only municipal offices, for the simple
reason that it is in the lowest levels of the government structure where the officials constantly
deal directly and personally with the people that the risks of religious influences in the daily
affairs of public administration can easily be exerted to the detriment of the principle of
separation of church and state. My impression is that if any religious is now being allowed to
hold any particular office that requires religious background and approach, it is mostly in
conjunction with other officials with whom he can only act in common, such as, in the Board
of Pardons and Parole, where he can exert at most only a degree of recommendatory
influence and he decides nothing conclusively for the state. In any event, the spectacle of a
priest and a politician being one and the same person may yet be an attempt to mix oil with
water, if it would not be doing what the Scriptures do not permit: honor both God and
Mammon.
Of course, a Filipino priest or a nun does not cease to be a citizen endowed with all
political rights as such. I maintain, however, that the choice by any religious of the high and
noble vocation of dedicating his or her life to God and His Church should, in the very nature of
things and for the best interests of the community as a whole, be deemed as a virtual waiver
or renunciation of the prerogative to hold a public office, for the reasons of inevitable
incompatibility I have discussed earlier, and it is but logical that the law give effect to such
renunciation, for the sake of both, the church and the state. As Mr. Justice Ramon C. Aquino
aptly puts it, it is not his or her religious belief but the exclusivistic character of the vocation
he or she has embraced that constitutes the bar to any political ambition he or she may
entertain. Just as the very ideal itself of religious freedom has been held to yield to the
demands of the public interest, it is not illogical, much less legally untenable, to construe the
“no religious test” provision in the Constitution as not constituting a prohibition against
banning an ecclesiastic from holding a municipal office due to the incompatibility between his
commitment to his vocations, on one hand, and his loyalty and dedication to his public office
both of which require his full and entire devotion.
SEPARATE OPINION
MAKASIAR, J., concurring in the result:
It grieves me to dissent on constitutional and legal grounds from my brilliant and learned
colleagues, Justice Enrique M. Fernando, Justice Claudio Teehankee and Justice Cecilia Muñoz
Palma, whose scholarly dissertations always command respect; because my discusssion will be
a catalogue of the dangers posed by the Church in which I was born and nurtured, like my
two sons and two daughters—the Roman Catholic Church, in whose service my late lamented
father wanted to be, studying as he did for the priesthood in a Catholic seminary.
I fully concur with the no less incisive opinions of Chief Justice Fred Ruiz Castro, and
Justices Antonio P. Barredo, Felix Q. Antonio and Ramon C. Aquino. I only wish to add some
thoughts avoiding as far as possible restating the citations in their opinions.
I
But first, we shall apply the legal scalpel to dissect Section 23 of the Election Code of 1971,
which, in the opinion of the trial judge, impliedly repealed Section 2175 of the Revised
Administrative Code. This issue which was not discussed extensively by Mr. Justice Fernando
in his opinion, is the centerpiece of the opinion of Mr. Justice Teehankee who concurs with
him.
The two alleged conflicting legal provisions are hereunder quoted:
“Sec. 23—Candidate holding appointive office or position.—Every person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines
and every officer or employee in government-owned or controlled corporations, shall ipso
facto cease in his office or position on the date he files his certificate of candidacy: Provided ,
That the filing of a certificate of candidacy shall not affect whatever civil, criminal or
administrative liabilities which he may have incurred” (Election Code of 1971, italics supplied).
“Section 2175—Persons ineligible to municipal office.—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” (Revised Administrative Code, italics supplied).
Basic is the rule that implied repeals are not favored unless there is such an irreconcilable
repugnancy between the two laws that both statutes cannot stand together.
It is patent that the two legal provisions are compatible with each other. Section 23 of the
Election Code does not enumerate the persons  disqualified for a public elective or appointive
office; but merely prescribes the effect of filing a certificate of candidacy  by an appointive
public officer or employee or by active members of the Armed Forces of the Philippines or by
an officer or employee in a government-owned or controlled corporation. Section 23 states
that upon the filing of his certificate of candidacy, such appointive officer or employee or
member of the Armed Forces shall “ ipso facto cease in his office or position x x.” The obvious
purpose is to prevent such candidate from taking advantage of his position to the prejudice of
the opposing candidates not similarly situated.
On the other hand, Section 2175 of the Revised Administrative Code provides for an
absolute disqualification and enumerates the persons who are so absolutely disqualified to run
for or be appointed to a municipal office which enumeration includes not only public officers
but also private individuals like contractors and ecclesiastics. Section 23 of the Election Code
of 1971 applies only to public officers and employees, including those in government-owned or
controlled corporations and members of the Armed Forces, but not to private citizens, like
contractors or ecclesiastics. Hence, a contractor who is not employed in any government office
or government-owned or controlled corporation or in the Armed Forces, need not vacate his
private employment, if any, upon his filing a certificate of candidacy. Likewise, if he were
qualified in the absence of the absolute disqualifications in Section 2175 of the Revised
Administrative Code, a priest or minister is not ipso facto divested of his position in his church
the moment he files his certificate of candidacy.
The fact that the Commission on Elections prior to the elections in 1971 denied petitioner’s
petition for the, annulment of the certificate of candidacy of private respondent, is not
conclusive on the Supreme Court, the final arbiter on legal questions and does not
constitute res judicata. The COMELEC’s opinion may be persuasive, but never binding on the
Supreme Court. Moreover, the petition should have been dismissed as premature then,
because the issue might have been rendered moot and academic should the candidate sought
to be disqualified before the election loses the election. At any rate, Section 219 of the
Election Code of 1971 authorizes any voter to file quo warranto  proceedings against any local
officer-elect on the ground of ineligibility within fifteen (15) days after the proclamation of his
election. The adverse opinion on the part of the COMELEC prior to the election, did not bar the
petition for quo warranto  under Section 219 of the Election Code of 1971.
Moreover, unlike the 1973 Constitution, the 1973 Constitution did not vest in the COMELEC
any power to decide contests relating to the election, returns and qualifications of elective
officials, whether national or local. Under the 1973 Constitution the COMELEC is not conferred
the power to decide contests relating to the election, returns and qualifications of municipal
elective officials. However, the 1973 Constitution constitutes the COMELEC the sole judge of
all contests relating to the elections, returns and qualifications of the members of the National
Assembly and the elective provincial and city officials (Section 2[2], Art. XII, 1973
Constitution); but such determination by the COMELEC is still subject to review by the
Supreme Court (Section 11, Art. XII, 1973 Constitution), which therefore is the ultimate arbiter
of such election issues.
If the implied repeal theory were sustained, then Section 23 of the Election Code of 1971,
if construed to allow ecclesiastics and other ministers of religion to run for or be appointed to
a municipal office, collides with the Constitution as the same violates the separation of church
and state expressly enjoined by Section 15 of Article XV, Section 18(2) of Article VIII, and
Section 8 of Article IV of the 1973 Constitution for the reasons hereinafter stated.
II
WE shall proceed to marshal the forces with which to lay siege on the citadel erected by Mr.
Justice Fernando to sustain his theory that Section 2175 of the Revised Administrative Code
was abrogated by the no-religious test clause of Section 1(7) of the Bill of Rights [Art. III] of
the 1935 Constitution, which is re-stated as Section 8 of the Bill of Rights (Article IV) of the
1973 Constitution.
As above stated, repeals by implication are abhorred, unless there is a clear showing of
complete and total incompatibility between the two laws. And WE believe that there is no such
irreconcilable repugnancy between Section 2175 of the Revised Administrative Code and the
no-religious test clause of the Bill of Rights.
On the other hand, the proposition advanced by my brethren, Justices Fernando and
Teehankee, clashes inevitably with the doctrine of separation of Church and State expressly
prohibited by Section 15 of Article XV of the 1973 Constitution, condemned by Section 8 of the
Bill of Rights (Article IV), and proscribed by Section 8 of Article XII and Section 18(2) of Article
VIII of the 1973 Constitution.
Section 15 of Article XV categorically declares that:
“The separation of Church and State shall be inviolable.”
Section 8 of the Bill of Rights (Article IV) reads:
“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 18(2) of Article VIII states:
“No public money or property shall ever be appropriated, applied, paid, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary, is assigned to the armed forces, or to any penal institution or
government orphanage or leprosarium.”
Section 8 of Article XII commands that:
“No religious sect shall be registered as a political party, x x.”
To stress, Section 2175 of the Revised Administrative Code, does not provide for a religious
test for the exercise of civil and political rights. The said section merely defines a
disqualification for a public office. It prohibits priests or ministers of any religion, and the other
persons specified in said Section 2175, from running for or being appointed to a municipal
public office. It does not deprive such specified individuals of their political right of suffrage—
to elect a public official.
A citizen, who is a Catholic, Protestant, Muslim, Aglipayan or a member of the Iglesia ni
Kristo, but who is not a priest or a minister of any religion, sect or denomination, can run for a
municipal elective office. Section 2175 does not inquire into the religion or lack of it on the
part of an ordinary citizen. If it does, all citizens would be disqualified for election or
appointment to a local public office; and there would be no need to single out soldiers in
active service, persons receiving salaries or compensation from provincial or national funds, or
contractors for public works of the municipality, along with ecclesiastics. All these persons,
whether priests or ministers or soldiers or contractors or employees of the national or
provincial government, profess some religion or religious belief. To repeat, one is disqualified
under Section 2175, not by reason of his religion or lack of it, but because of his religious
profession or vocation.
The separation of Church and State implicit in the Bill of Rights (Sec. 1, par. 7 of Art. III of
the 1935 Constitutions and Sec. 8, Article IV, 1973 Constitution), has been expressly stated
and therefore stressed in Section 15 of Article XV of the 1973 Constitution, which categorically
enjoins that “the separation of Church and State shall be inviolable.” This basic principle which
underlies the structure of our government was the sharp reaction to the historical lesson
learned by mankind in general that the fusion of government and religion tends to destroy
government and degrade religion (Engel vs. Vitale, 370 US 421) because it invariably
degenerates into tyranny. The terror that was the Inquisition claimed for its victims physicist
and astronomer Galileo Galilei and philosopher Giordano Bruno, among thousands of other
victims.
The view herein enunciated by Justice Fernando and Teehankee will again usher in the era
of religious intolerance and oppression which characterized the Spanish regime of about 400
years in the Philippines. It will resurrect in our political life that diabolic arrangement which
permits the “encroachment of Church upon the jurisdiction of the government, and the
exercise of political power by the religious, in short, the union of the State and the Church—
which historically spawned abuses on the part of the friars that contributed to the
regressiveness, the social and political backwardness of the Filipinos during the Spanish Era”
and bring about a truly theocratic state—the most dangerous form of absolutism, according to
Lord Acton, that great liberal Catholic and illustrious scholar (Senator Claro M. Recto “The Evil
of Religious Test in our Democracy”, speech delivered before the Central Philippine University
on February 19, 1960).
When a priest is allowed to run for an elective position, in the stirring language of the
erudite Claro M. Recto, the same will re-establish “a tyrannical regime that engaged in the
most vicious political and religious persecution against dissenters. The Church in the
Philippines was responsible for the execution of Fathers Gomez, Burgos and Zamora, of Rizal
and other Filipino patriots” (speech delivered on February 15, 1958 before the Supreme
Council of the Ancient and Accepted Scottish Rite of Free Masonry).
No doubt Section 2175 was designed to preserve the indestructible wall of separation
between Church and State—the basic pillar of our democratic regime. The no-religious test
clause of the Constitution only implements and supplements one’s freedom to entertain views
of his relations to his Creator and to preach, propagate and evangelize his religious belief. But
such no-religious test does not guarantee him the right to run for or be appointed to a public
office and thereafter to use such public office to compel the citizenry to conform to his
religious belief, thereby to gain for his Church dominance over the State.
A priest or minister, once elected or appointed to a municipal office, necessarily enjoys the
salary pertaining to the office. This would be a direct violation of the prohibition under Section
18(2) of Article VIII of the 1973 Constitution, which was contained in paragraph 3 of Section
23 of Article VI of the 1935 Constitution. Not only public funds will be appropriated for his
salary but the priest or minister thus elected or appointed as a municipal officer or employee
will also directly or indirectly enjoy the use or benefit of any property of the municipality. The
only exception where such appropriation of public money or property can be validly made in
favor of such priest or minister is when he is assigned to the Armed Forces or to any penal
institution or government orphanage or leprosarium.
What will necessarily follow would be the Church fielding its own candidates for municipal
offices all over the country even without registering as a political party. Such support by the
Church, although not registered as a political party, remains a circumvention of the absolute
prohibition specified in Section 8 of Article XII of the 1973 Constitution. And when the majority
of the winning candidates for elective offices in the towns all over the country are supported
by the Church, these officials will naturally be beholden to the Church and will utilize—covertly
or overtly—their office to further the interests of the Church. When the Church achieves such
political dominance, then the Church will have the power to persuade the electorate or
citizenry to amend the Constitution to eliminate all the provisions on separation of Church and
State, the establishment of state religion and the utilization of public funds or property by the
Church or by any of its priests or ministers and the prohibition against the registration of a
religious sect as a political party.
The history of mankind, including our own history, to which Mr. Justice Jose P. Laurel
appealed in Aglipay vs. Ruiz (64 Phil. 201, 205), and our jurisprudence furnish the formidable
evidence of the dangers that religious supremacy poses to our country and people.
Once a particular church or religion controls or is merged with the State, we shall bid
goodbye to all our liberties; because all other churches, religions, sects or denominations and
all other dissenters of whatever hue or persuasion, will not be tolerated.
Just recently, columnist Teodoro F. Valencia recounted in his column of August 5, 1978
that a certain “Jose B. Marabe of Davao City reports that in the town fiesta of Talalora, West
Samar, barrio officials were compelled to become Aglipayans because the mayor turned
Aglipayan. Those who did not obey were denied barangay aid” (Over a Cup of Coffee, Daily
Express, August 5, 1978, p. 5).
Former Senator Claro M. Recto, the father of the 1935 Constitution, painfully narrates:
“And yet we have been witnesses to the fact in the last two elections that religious
organizations, priests and nuns, bishops and archbishops descended upon the political arena,
not only to urge the faithful to support their own favorite candidates for national positions, but
to enjoin them from voting for certain candidates whom the hierarchy considered enemies of
the church, under threat of excommunication and eternal damnation. The confessional and
the pulpit have been utilized for these purposes.
“x x x x x
 “In the elections of 1955 the hierarchy made the first try. The hierarchy gave several
candidates for the Senate their imprimatur and their blessing and not only enjoined the faithful
to work and vote for them but also enjoined them not to vote for candidates whom they had
declared anathema. Their agents conducted the campaign first in whispers and through
handbills and newspaper articles and caricatures in the hierarchy’s own press organ, but later
the confessional and, in certain areas, the pulpits became campaign platforms. Religious lay
organizations, priests and nuns, schools of both sexes, took active part in the campaign. This
was the church militant and the hierarchy were successful to a certain extent. They were able
to elect at least two senators, although they failed to prevent the election of one they most
hated, abused and maligned. Pleased and encouraged by their initial victory the hierarchy
made a second try in the general elections. They put up candidates for all national offices,
President, Vice-President, Senators and Representatives. They failed to elect the President,
however, because the hierarchy were hopelessly divided on the Presidency, as seen in the
advertisements which appeared in a section of the local press. Bishops in league with a Filipino
Archbishop, were backing one candidate. Those owing fealty to a foreign diplomatic
representative of the Church went all-out for another candidate. They were all one, however,
in enjoining the faithful from voting for a third candidate, the same one they had fought
bitterly but unsuccessfully in the preceding senatorial elections.
“Happily for the winning candidate for Vice-President, they were all united for him. Not
that the other three candidates for the office were reputed enemies of the church. But one of
them, orthodox in his faith and a regular observant, they disliked for having sponsored and
voted for the Rizal Bill. They discarded another supposedly because of his allegedly non-too-
exemplary private life. And as to a third one, an acknowledged Catholic leader, it was their
belief that it would be wasting votes on him as he was never given a chance to win. The
victor, being the sole candidate of the church for Vice-President, could not but win, thus
justifying the name with which he was christened, the Spanish word for God-given: Diosdado.
The church was also successful in electing two senators. Not that the remaining six were not
Catholics, but that they were not particularly favorites.
“It is thus undeniable that while the Constitution enjoins the state from requiring any
religious test for the exercise of political rights, it is the church that in practice has of late
required such a test according to its own standards.
“What was the cause of this sudden political belligerence on the part of the hierarchy?
Why this recent unabashed attempt to dominate the state through the ballot box? No better
answer can be given except that the hierarchy must have reached a decision to implement the
policy announced in Rome in 1948, not exactly by the Vatican, but by the official organ of a
powerful religious organization reputed to be adviser to Popes, in a leading article which
proclaimed the following:
‘The Roman Catholic Church, convinced through its devine prerogatives, of being the only true
church, must demand the right of freedom for herself alone, because such a right can only be
possessed by truth, never by error. As to other religions, the Church will certainly never draw
the sword, but she will require that by legitimate means they shall not be allowed to
propagate false doctrine. Consequently, in a state where the majority of the people are
Catholic, the Church will require that legal existence be denied to error, and that if religious
minorities actually exist, they shall have only a de facto existence without opportunity to
spread their beliefs . . . In some countries, Catholics will be obliged to ask full religious
freedom for all, resigned at being forced to cohabitate where they alone should rightfully be
allowed to live. But in doing this the Church does not renounce her thesis, which remains the
most imperative of her laws, but merely adapts herself to de facto conditions, which must be
taken into account in practical affairs . . .’
“This is the essence, not of religious freedom, but of sectarian intolerance: the church,
when a minority in a given country, urges freedom of worship and coexistence along with
others; but when in the majority, it denies that freedom to other faith denominations, and
claims a monopoly on truth.
“Certainly this was not the view of the founders of the American Republic when they
instituted the principle of religious freedom.
“x      x      x      x      x      x
“The policy announced in Rome in 1948, to which I already referred, can find no more
adequate and conclusive refutation than in the following statement by Dr. John B. Bury,
Regius Professor of Modern History, University of Cambridge, in his A History of Freedom of
Thought:
‘A state with an official religious but perfectly tolerant of all creeds and cults, finds that a
society had arisen in its midst which is uncompromisingly hostile to all creeds but is own and
which, if it had the power, would suppress all but its own. The government in self-defense
decides to check the dissemination of these subversive ideas and makes the profession of that
creed a crime, not on account of its particular tenets, but on account of the social
consequences of those tenets. The members of the society cannot without violating their
consciences and incurring damnation abandon their exclusive doctrine. The principle of
freedom of conscience is asserted as superior to all obligations to the State, and the State,
confronted by this new claim, is unable to admit it. Persecution is the result. (pp. 47-48).
‘What is to happen when obedience to the law is inconsistent with obedience to an
invisible master? Is it incumbent on the State to respect the conscience of the individual at all
costs, or within what limits? The christians did not attempt a solution, the general problem did
not interest them. They claimed the right of freedom exclusively for themselves from a non-
Christian government; and it is hardly going too far to suspect that they would have
applauded the government if it had suppressed the Gnostic sects whom they hated and
calumniated.
In any case, when a Christian State was established, they would completely forget the
principles which they had invoked. The martyrs died for conscience, but not for liberty. Today
the greatest of the Churches demands freedom of conscience in the modern States which she
does not control, but refuses to admit that, where she had the power, it would be incumbent
on her to concede it. (pp. 49-50)
‘During the two centuries in which they had been a forbidden sect the Christians had
claimed toleration on the ground that religious belief is voluntary and not a thing which can be
enforced. When their faith became the predominant creed and had the power of the State
behind it, they abandoned this view. They embarked on the hopeful enterprise of bringing
about a complete uniformity in men’s opinions on the mysteries of the universe, and began a
more or less definite policy of coercing thought. This policy was adopted by Emperors and
Governments partly on political grounds; religious divisions, bitter as they were, seemed
dangerous to the unity of the State. But the fundamental principle lay in the doctrine that
salvation is to be found exclusively in the Christian Church. The profound conviction that those
who did not believe in its doctrines would be damned eternally, and that God punishes
theological error as if it were the most heinous of crimes, has naturally led to persecution. It
was a duty to impose on men the only true doctrine, seeing that their own eternal interests
were at stake, and to hinder errors from spreading, heretics were more than ordinary criminals
and the pains that man could inflict on them were nothing to the tortures awaiting them in
hell. To rid the earth of men who, however virtuous, were through their religious errors,
enemies of the Almighty, was a plain duty. Their virtues were no excuse. We must remember
that according to the humane doctrine of the Christians, pagan, that is, merely human virtues
were vices, and infants who died unbaptized passed the rest of time in creeping on the floor of
hell. The intolerance arising from such views could not but differ in kind and intensity from
anything that the world had yet witnessed.’ (pp. 52-53)” [The Church and State Under the
Constitution, Lawyers Journal, March 31, 1958, pp. 83-84]
Section 2175 of the Revised Administrative Code does not therefore clash with the no-religious
test guarantee; because the same is indispensable to the very survival of this republic against
religious intolerance and hegemony. If the 1971 Constitutional Convention was not profoundly
apprehensive of the evil effects of the fusion of the Church and State, it would not have
expressly reaffirmed the inviolability of such separation, as heretofore stated, in Section 15 of
Article XV of the 1973 Constitution. Such deep conviction of the Filipino people was first given
expression in 1899, even before the beginning of the American regime, by our ancestors who,
by reason of their having been subject to the indignities generated by the union of Church and
State, to insure that such oppression will no longer abide, incorporated expressly in the
Malolos Constitution of the First Philippine Republic that “the state recognizes the equality of
all religous worships and the separation of the Church and State” (Art. V, Title III, Malolos
Constitution).
As a living witness to the religious tyranny during the Spanish regime, Justice Florentino
Torres of this Supreme Tribunal affirmed before the Philippine Commission in 1900 the abuses
of the friars (see Agoncillo and Alfonso, A History of the Filipino People, 1960 ed., p. 111
quoted in the dissenting opinion of Justice Antonio).
Professor Renato Constantino likewise recounts:
“But the fundamental cause for the waning zeal and ensuing corruption of the friars was their
acquisition of property.
“A letter to Governor Dasmariñas from Bishop Domingo Salazar dated March 21, 1591,
recounts in passing how the religious in Mexico obtained the revocation of a royal prohibition
against their owning property. The religious contended that there were too many
disadvantages in having the friars live alone. They proposed the establishment of houses to be
manned by at least four ecclesiastics. But this raised the problem of their support. Declaring
that they did not want their missionaries to be a burden to their flock, the Dominicans and the
Augustinians suggested that the best solution would be for the king to grant them some
estates in the native villages so that the missionaries could become self-supporting. This
proposal ran counter to a royal order that the clergy should not own lands in the Indian
villages; but the religious, through Bishop Salazar himself, succeeded in persuading the king to
revoke his decree.
“x      x      x      x      x      x      x
“The friars also bought land from the natives with the money they obtained from church
fees, from trade, or from the profits gained from the produce of lands which utilized forced
labor. With their prestige and power, it was easy for them to pressure villagers into selling
them their lands at very low prices.
“Other landholdings were acquired through the foreclosure of mortgages. The story of how
friars became mortgagees often began innocuously enough. Living as they did among the
people, the religious were in the best position to appreciate the possibilities of agricultural
development. Seeing that the obstacle to more extensive cultivation was lack of capital, many
priests entered into partnership with farmers, advancing them money for seeds, work animals
and tools. The priests received half of the harvest.
“Although this arrangement favored the money lender who received a fat share without
working, at least he ran the same risk as the farmer of getting little if the harvest was poor.
But when the dependence on priestly capital had become more or less established, the friars
began to demand that their advances be regarded as loans payable at a fixed rate of interest
whether the harvests were good or bad. The risks were now borne by the tillers alone, and in
bad seasons they ran into debt.
“When such debts accumulated, the friars forced the farmers to mortgage their land to
them and eventually foreclosed the mortgage. The friars then obtained title to such lands and
the farmer-owners were either driven away or became tenants.
“x      x      x      x      x.
“Some friar lands were obtained through outright usurpation. With the help of corrupt
surveyors and other government officials, religious corporations were able to expand their
landholdings. Additional hectares of land outside original boundaries of friar property were
simply gobbled up each time a new survey was undertaken. Many times, the priests just
claimed pieces of land, drew maps of them, had them titled, and set themselves up as
owners.
“The original native settlers who had tilled the land for years were summarily declared to
be squatters. When the natives protested, they were asked for legal proofs of ownership of
the land in question. More often than not, they could not show any legal document attesting
to their ownership of the land. The natives did not have ‘titulos reales’ since their claim to the
land was based on de facto possession.
“x      x      x      x      x.
“Taxes, tributes, exorbitant rents and arbitrary increases of the same, forced labor and
personal services—all these intensified the hardships of natives who now had to give up a
good part of their produce to their landlords. In addition, some administrators practiced other
petty cruelties which caused much suffering among the people.
“In 1745, in the Jesuit ranches of Lian and Nasugbu, Batangas, for example, the people
accused the religious not only of usurping the cultivated lands and the hills that belonged to
them but also of refusing to allow the tenants to get wood, rattan and bamboo for their
personal use unless they paid the sums charge by the friars.
“In Bulacan, villagers complained that the religious cheated them out of their lands and
then cruelly proceeded to deny them the right to fish in the rivers, to cut firewood, and to
gather wild fruits from the forests. The friars would not even allow their carabaos to graze on
the hills since the religious now claimed all these areas as their own.
“In Cavite, Manila and Bulacan, small landholders complained that since the friars, owned
the land through which the rivers passed, they had to agree to the friars’ terms if they wanted
water for irrigation purposes.
“Lessees of friar lands protested bitterly that their landlords raised their rents almost every
year and particularly whenever they saw that through the farmers’ labor the land had become
more productive. In some cases, they even imposed a surtax on trees planted by the tenants.
When they accepted rental payments in kind, the administrators of the friar estates arbitrarily
fixed the prices of these products, naturally at lower than prevailing prices.
“Aside from institutional exploitation, exactions of a personal nature were rampant.
Curates charged a bewildering number of fees for all sorts of rites, from baptism to burial. The
natives paid even if it meant selling their last possessions because they had been taught that
such rites were indispensable to the salvation of their souls.
“Friars made money selling rosaries, scapulars and other religious objects. They required
from their flock all kinds of personal services and gifts of food for the convent table.
“Priests often administered corporal punishment, usually whippings, on natives who dared
disobey their orders or disregard their caprices. Unmarried girls were compelled to report to
the convent to pound rice and sweep the church floors. The large number of Filipinos today
who have a priest somewhere in their family trees attests to the frequency with which the
vows of celibacy were transgressed.
“Of course, the cruelty, capriciousness and frequency of abuses depended on the character
of the individual priest—and there were good and bad. However, it cannot be denied that the
virtually unchallenged power of the friar in most communities had a corrupting influence on
most.
“The people’s mounting resentment led them to commit various acts of defiance, to refuse
to pay the unjust taxes imposed by friar estate administrators, and finally to resort to armed
rebellion. So serious were the clerics’ abuses that by 1751, the king was moved to issue a
royal decree ordering local government authorities
‘to exercise hereafter the utmost vigilance in order that the Indians of the said villages may
not be molested by the religious, and that the latter should be kept in check in the unjust acts
which they may in future attempt . . .’
“But by that time such a directive could hardly be enforced. The friars had become too
powerful not only because of their spiritual hold over both the Spanish officials and the
natives, but also by virtue of their established economic power. In addition, they had become
a ubiquitous presence in the local machinery of administration.
“Against the power of his friar landlord, a tenant found it impossible to prosecute his
interests or have his complaints heard. A poor tenant could not afford the costs of a lawsuit,
granting that he knew the first thing about litigation procedures. Besides, what chance had he
against such a powerful figure as a friar? If a friar wanted a tenant evicted, the cleric could
easily prevail upon a judge to issue the order, and he could as easily avail himself of
government forces to execute the decision. Recalcitrant tenants were often evicted en masse;
there were so many landless peasants to take their places, anyway.
“Exploitation, with its concomitant personal cruelties and abuses, was part and parcel of
the imperative of property expansion once the friars’ right to property had been recognized.
Economic power enhanced political power, and political power was used time and again to
expand economic power and to oppose any attempts by government to frustrate economic
expansion.
“By the end of the Spanish occupation, the friar were in possession of more than 185,000
hectares or about one-fifteenth of the land under cultivation. Of this total, around 110,000
hectares were in the vicinity of Manila.
“x      x      x      x      x      x.
“The early ascendancy of the Church over the State was made possible by the success
with which the friars undertook, almost single-handedly, the pacification of the country.
“Since this success was due in large measure to the native’s acceptance of the new
religion, Spanish power in most communities rested on the influence of the religious. The
prevalent opinion at that time that ‘in each friar in the Philippines the king had a captain
general and a whole army’ is a recognition of this fact.
“Moreover, in more than half of the villages in the islands there was no other Spaniard,
and therefore no other colonial authority, but the friar. This state of affairs obtained almost to
the end of Spanish rule.
“Other factors contributed to friar ascendancy. The friar’s knowledge of the land and of the
people was invariably superior to that of the government functionary. The Spanish alcaldes
mayores were dependent on the religious not only because the latter spoke the native dialects
but also because the tenure of these government officials was temporary while that of the
parish priest was more or less permanent.
“A more fundamental basis of the great political power of the religious was the Spanish
concept, of the union of Church and State. The friar was entrusted with an ever-growing
number of civil duties within the community until there was no aspect of community life in
which he did not have a hand.
‘He was inspector of primary schools, and of taxation; president of the board of health, of
charities, of urban taxation, of statistics, of prisons; formerly, president, but lately honorary
president of the board of public works. He was a member of the provincial board and the
board for partitioning crown lands. He was censor of the municipal budget, of plays, comedies,
and dramas in the native language given at the fiestas. He had duties as certifier, supervisor,
examiner, or counsellor of matters in regard to the correctness of cedulas, municipal elections,
prison food, auditing of accounts, municipal council, the police force, the schools, and the
drawing of lots for army service.’
“Economic power through landholding and through investments in foreign and internal
trade, political power through extensive participation in government, and spiritual control over
both the native population and fellow Spaniards—all these combined to make the friar the
principal figure in each community, and the Church the dominant power in the country.
“x      x      x      x      x      x.
“Time and again, governors complained of the abuses of the clergy and appealed to the
Spanish monarch to curtail their powers. As early as 1592, Governor Dasmariñas was already
railing against friar power. He wrote:
‘And the friars say the same thing—namely, that they will abandon their doctrinas (i.e.,
Christian villages) if their power over the Indians is taken away. This power is such that the
Indians recognize no other king or superior than the father of the doctrina, and are more
attentive to his commands than to those of the governor. Therefore the friars make use of
them by the hundreds, as slaves, in their rowing, works, services, and in other ways, without
paying them, and whipping them as if they were highwaymen. In whatever pertains to the
fathers there is no grief or pity felt for the Indians; but as for some service of your Majesty, or
a public work, in which an Indian may be needed, or as for anything ordered from them, the
religious are bound to gainsay it, place it on one’s conscience, hinder it, or disturb everything.’
“In 1636, Governor Sebastian Hurtado de Corcuera wrote the king objecting to the
increase in the number of religious in the islands. According to him, the friars had reduced the
natives to virtual slavery by forcing them to sell to the religious ail their rice and cloth at prices
set by the latter who then monopolized the business in these items. And yet, the governor
complained, when assessments of rice, cloth and wine were levied on the people by the
government, these same friars objected on the ground that the natives were too poor to pay
what was demanded.
“x      x      x      x      x      x.
“Abuses such as the friar’s excessive interference in the natives’ daily life, personal insult,
corporal punishment such as whipping and lashing of both men and women for the slightest
offense, onerous fees for confessions and other religious rites, sexual offenses against native
women, and the native virtual reduction to a slave and servant of the friar—all these were
being committed as early as the second or third decade of occupation. But these wrongs were
still inflicted and also accepted on an individual basis and they varied in intensity and
frequency depending on the personality of each priest. Furthermore, since punishments were
meted out on a variety of individual offenses, there was no common grievance strong enough
to call forth united action, although there is no doubt that resentment were building up.
“But when the religious orders began to acquire property, their abuses took on a different
complexion. As landlords, they became economic exploiters whose abuses threatened the
economic survival of the natives. Such abuses were no longer inflicted by an individual on
separate individuals. Neither were they occasional or dependent on a particular friar.
“Exploitation was basic and permanent, and enforced by an institution on groups of men
constituting practically the entire community. Moreover, this kind of exploitation could not be
justified in any way as part of the friar’s religious mission. All these factors transformed
isolated resentments into common and bitter grievances that erupted in revolts against the
friars.
“That native disaffection with the religious orders had a profoundly material basis is proved
by the fact that discontent exploded in revolts precisely in areas where friars were known to
hold large tracts of agricultural land. In the provinces of Cavite, Laguna, Manila, Bulacan and
Morong (now Rizal), the religious owned more than one-half of the total agricultural land. It is
not mere coincidence that these provinces experienced many agrarian uprisings and became
the strongholds of the Philippine Revolution.
“To summarize: the attitude of the natives to the Church in the course of its economic and
political ascendancy changed from initial obedience due to awe and fear; to loyalty and
subservience arising from acceptance of the Catholic religion and experience with the power of
priests within the colonial hierarchy, but accompanied by personal resentments; to generalized
or group hostility because of common experience with economic exploitation by the friars; and
finally, to the violently anti-friar sentiments of the masses during the Revolution (see Chapters
9 and 10) which resulted in demands for their expulsion and in the rise of an indigenous
Church.
“It is very clear that this transformation in the realm of consciousness was a response to a
material stimulus—the transformation of the Church from a colonial accessory to the principal
apparatus of colonial appropriation and exploitation” (The Philippines—A Past Revisited, 1975,
pp. 66 to 80).
Again, we have to summon the prodigious intellect of that great nationalist, Claro M. Recto,
himself a victim of the most vicious campaign against his candidacy in 1957 waged by the
dominant Catholic church, which refused to heed the injunction of Christ, explicit from His
answer to the Pharisees when they attempted to entrap Him into opposing the power of
Rome, to “render unto Caesar the things that are Caesar’s and unto God the things that are
God’s”. Recto, with his keen and prophetic mind, easily discerned the dangers posed by
church interference in our democratic system. In his speech delivered on February 19, 1960
on the occasion of the conferment upon him of the degree of Doctor of Humanities, honoris
causa  by the Central Philippine University in Iloilo City, Recto concluded his argument against
the unholy alliance of Church and State, thus:
“It is to be deplored that in recent years the most numerous Church in this country, not
satisfied with the hold it has on the fealty of four-fifths of the nation as no government has
ever enjoyed or will enjoy here, has made use of its privileged position by demanding from
candidates to public office, particularly the elective ones, certain religious tests and pledges of
allegiance. The immediate purpose, of course, is to acquire through policy-making government
officials, control of the public affairs and ultimately to establish here a truly theocratic state,
which, according to Lord Acton, a liberal Catholic and great English scholar, is ‘the most
dangerous form of absolutism.’
“We have been witnessing from time to time the organization of sectarian professional
groups. We already have a lawyers sectarian association, and only recently certain local
physicians who, claiming to believe that they should consider religion in the practice of their
profession, have grouped themselves into a sectarian association of physicians. We may well
except to see a sectarian association of apothecaries organized one of these days, and other
similar ones, until there shall not be a single profession or occupation without its own
sectarian association.
“x      x      x      x      x.
“At the time the most numerous Church in this country moved onto the political stage, a
young Filipino priest, reputedly an intellectual in his own religious order, made in the course of
a public address at the Luneta, with the evident placet of the corresponding hierarchy—qui
tacet consentire videtur  —the most daring proposal that there should be a union of Church
and State, with the Church assuming naturally the leadership in the unholy partnership. Such
a proposal would require the appropriate amendment of the Constitution, which is most likely
to happen should the most numerous Church obtain the necessary control of the legislature.
“In the last three elections the most numerous Church made its influence felt. There was a
small chosen group of ambitious political upstarts—the youth elite, so to speak—who took to
the field with the unmistakable blessings and patronage of their Church’s hierarchy. Although
this group did not carry officially its sect’s banner, it was to all intents and purposes just that
with no pretense at being anything else. It was identified with the Church in question and it
received the latter’s unqualified and unstinted support through pulpit and confessional and
through religious schools and associations all over the country. Priests and nuns in charge of
private schools were particularly aggressive in their newly found militancy. The haloed
candidates of this group were presented to the electorate as the holiest among the holy, and,
since they carried the standard, albeit unofficial, of their Church, the implication was that, at
least for the voter that belongs to it, they were the only ones fit, under bulls and encyclicals,
for public office.
“The irony of all this is that while the government is enjoined by the Constitution from
imposing or requiring religious test for any office, it is a religious establishment, the most
numerous in the country, that is doing so. Although this religious establishment did not fare as
it had expected in the last three elections, there is no doubt that its incursions into the political
field should not be taken lightly. If these inroads are not curbed now, the day is not far off
when we shall see the halls of congress being used to proselytize the nation and the people
legislated into one religious faith. An established church, which is another name for union of
Church and State, consecrated by appropriate constitutional amendment, would be the tragic
result.
“x      x      x      x      x.
“Origen, one of the early Fathers—he lived in the 3rd century—admonished that ‘Christians
should not take part in the government of the State, but only of the ‘divine nation’, ‘that is,
the Church; and rightly so, because ‘most people regard politics as ‘worldly’ and unworthy of
any really holy man.’ This same doctrine, according to Bertrand Russell, ‘is implicit in Saint
Augustine’s City of God,’ so much so that ‘it led churchmen, at the time of the fall of Western
Empire, to look on passively at secular disasters while they exercised their very great talents,
in Church discipline, theological controversy, and the spread of monasticism.’
“Writing to a correspondent in Constantinople, Gregory the Great said: ‘What pleases the
most pious emperor, whatever, he commands to be done, is in his power . . . As he
determines, so let him provides. What he does, if it is canonical, we will follow; but if it is not
canonical, we will bear it, as far as we can without sin of our own . . . Rulers should not be
criticized, but should only be kept alive to the danger of hell-fire if they fail to follow the advise
of the church.’ Pope Nicholas I of the 8th century replied to an angry letter of Emperor Michale
III: ‘the day of King-Priests and Emperor-Pontiffs is past; Christianity has separated the two
functions.’
“Gelasius, a pope in the fifth century, laid down the principle of separation of Church and
State in the following words:
‘x x x It may be true that before the coming of Christ, certain persons . . . existed who were at
the same time priests and kings, as the holy scripture tells us Melchizedech was.
‘x x x But, after the coming of Christ (who was Himself both the true king and the true
priest), no emperor thereafter has assumed the title of priest, and no priest has seized a regal
throne . . . x x x He separated the kingly duties and powers from the priestly, according to the
different functions and dignity proper to each x x x The soldier of the Lord should be as little
as possible entangled in secular business, and that one involved in secular affairs should not
be seen occupying the leadership of the church.’ (Masters of Political Thoughts by Michael B.
Foster, vol. I, pp. 231-232.)
“Pope Leo XIII, in his Encyclical ‘Immortal Dei’ (November 1885) said:
‘It is generally agreed that the Founder of the Church, Jesus Christ, wished that the spiritual
power to be distinct from the civil, and each to be free and unhampered in doing its own
work, not forgetting, however, that it is expedient for both, and in the interest of everybody,
that there be a harmonious relationship.’
“x      x      x      x      x      x      x      x      x      x.
“Reichersberg, another famous churchman of the twelfth century, who supported the Pope
in the Investiture controversy, said:
‘Just as the emperors sometimes arrogated to themselves functions belonging to the
priesthood and the church; so they (the priests) on the other hand imagine that their
priesthood confers on them also an imperial, or more than imperial power . . . What then will
have become of those two swords of the Gospel, if the apostle of Christ shall be all, or if the
Emperor shall be all? If either the Empire or the priesthood shall be robbed of its strength and
dignity, it will be as though you were to take one of the two great luminaries from the sky.’
(Id., p. 235.)
“Don Luigi Sturzo, a distinguished Catholic Italian scholar, speaking of the separate
functions of Church and State, says: ‘Every attempt to overstep such limits, from either side,
has violated the laws of nature and those of revelation.’ (Church and State, vol. I, p. 28).
“Lord Acton in his ‘Political Philosophy,’ pp. 43-44, remarked:
‘If a Church is united with the State the essential condition of freedom vanishes. It becomes
officialized. And those who govern the Church are tempted to divert its influence to their own
purposes. Similarly, the support of the Church dangerously increases the authority of the
State, by giving a religious sanction to the behests of the State. This increases the danger of
depositism.
“Under the terms of the Lateran Treaty with Italy, which was concluded in 1929, the Holy
See not only agreed that Catholic organizations would abstain from politics, but it declared
that ‘it wishes to remain, and it will remain extraneous to all temporal disputes between
nations and to all international congresses convoked for the settlement of such disputes unless
the contending parties make a concordant appeal to its mission of peace; nevertheless it
reserves the right in every case to exercise its moral and spiritual power.’
“In the ‘Report on Church and State’ (Message and Decisions of Oxford [1957] on Church,
Community, and State, pp. 27-30), it was declared that ‘The Church as the trustee of God’s
redeeming Gospel and the States as the guarantor of order, justice, and civil liberty, have
distinct functions in regard to society. The Church’s concern is to witness to men of the
realities which outlast change because they are founded on the eternal Will of God. The
concern of the State is to provide men with justice, order, and security in a world of sin and
change. As it is the aim of the Church to create a community founded on divine love, it cannot
do its work by coercion, nor must it compromise the standards embodied in God’s
commandments by surrender to the necessities of the day. The State, on the other hand, has
the duty of maintaining public order, and therefore, must use coercion and accept the limits of
the practicable.’
“x      x      x      x      x      x.”
To allow an ecclesiastic to head the executive department of a municipality is to permit the
erosion of the principle of separation of Church and State and thus open the floodgates for the
violation of the cherished liberty of religion which the constitutional provision seeks to enforce
and protect. For it requires no in-depth analysis to realize the disastrous consequence of the
contrary situation—allowing ecclesiastics to ran for a local position. Can there be an assurance
that the decisions of such ecclesiastic, in the exercise of his power and authority vested in him
by reason of his local position will be clothed with impartiality? Or is not the probability that
his decision as well as discretion be tainted with his religious prejudice, very strong? For
considering the objectives of his priestly vocation, is it not incumbent upon him to color all his
actuations with the teachings and doctrines of his sect or denomination? Is there an assurance
that in the appointment to appointive municipal positions the religious affiliation of the
competing applicants will not play the decisive factor? If the ecclesiastic elected to a municipal
office of mayor is a Catholic, would the chances of an heretic, an Aglipayan, a Protestant or an
Iglesia ni Kristo adherent be as equal as those of a Catholic?
Pursued further, in the solemnization of marriage, how would he resolve the conflict
between civil laws and his religion? Will he conduct the same under the tenets of his religion
or under the commands of civil laws? Will he be willing to solemnize the marriage of applicants
who both do not belong to his sect? Will he be imposing the requirement, assuming that he is
a Catholic, that the non-Catholic party should agree that the children of the union shall be
brought up according to the Catholic dogma? Where the applicants are first cousins, will he be
willing to solemnize the marriage, considering that under civil law, the same is prohibited; but
under Catholic rules, the same is allowed? Where obedience to the law of the State is
inconsistent with obedience to the law of his Church, how will he act? Such questions could be
asked also of the municipal officials who are ministers of other religions or sects.
Again, in the exercise of his preliminary investigation authority, how would he decide cases
under investigation where the crimes involved are violations of Article 132 (Interruption of
religious worship) and Article 133 (Offending the religious feelings)? Will not his religious
convictions and prejudices color his actuations?
Also, in the matter of permits for the use of public places for religious purposes, how
would he treat applications filed by atheists or by religious sects other than his? Could there
be an assurance of strict impartiality?
What alarms me more, however, is the effect of the majority opinion—allowing
ecclesiastics to run for a public office in the local government—on the present posture of the
Churches in the present political situation. For I entertain very strongly the fear that with such
ban lifted, it will not be too long from today that every municipality in the country will be
headed by a priest or minister. And the result of such a situation need not be emphasized any
further. Recto had expressed it in no uncertain terms.
Recto ventured to foretell in the same speech earlier quoted:
“x x x x in the light of the events of the recent past, unless the hierarchy of the most
numerous Church withdraws definitely and completely from the field of its newly found
activities, the nation will eventually find itself sucked into the maelstrom of a religio-political
war with the said Church on one side and on the other a powerful alliance not only among
those who belong to other religious denominations, but also a sizable portion of its faithful
who, because of nationalism or civil libertarianism, would refuse to follow their spiritual
leaders in such a purely mundane crusade. It is irrelevant whether the numerous church or its
allied opponents emerge victorious in such a battle, for the outcome will be the same as in the
ones between Hildebrand and Henry IV and their respective successors, and between the
thirteenth-century popes and the Hohenstaufen: ‘the usual outcome.’ in the words of
Toynbee, ‘of all wars that are fought to the bitter end: the nominal victor succeeded in dealing
the death-blow to his victim at the cost of sustaining fatal injuries himself; and the real victors
over both belligerents were the neutral tertii gaudentes.’ In our case, the tertii gaudentes, the
happy onlookers, if I may be allowed to translate these Latin words freely, would be the
enemies of our nation and people, the real beneficiaries of such a tremendous national
misfortune.”
Finally, the majority opinion will precipitate small religious wars in every town. We have seen
in cases decided by this Court how the religious fanatics have persecuted religious sects in
some towns giving rise to bloody episodes or public disturbances.
It would seem that any human activity touching on the religious beliefs and sentiments of
the people easily agitate their emotions, prejudices and passions, causing even the ordinarily
reasonable and educated among them to act intolerantly.
Indeed, in one case that reached this Court, Mr. Justice Jose P. Laurel, alarmed by the
bigotry of a Roman Catholic priest so obvious from his actuations, articulated in his dissenting
opinion the following thoughts:
“Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or
through a private property be characterized as notoriously offensive to the feelings of any
religion or its adherents or followers?
“The Lord gave, and the Lord hath taken away; blessed be the name of the Lord (Job,
1.21).
“In this case, the Lord has recalled the life of one of His creatures; and it must be His wish
that the remains shall have the right of way that they may be buried ‘somewhere, in desolate
windswept space, in twilight land, in no man’s land but in everybody’s land.’
“Rather than too many religions that will make us hate one another because of religious
prejudices and intolerance, may I express the hope that we may grasp and imbibe the one
fundamental of all religions that should make us love one another.’ ” (People vs. Baes, 68 Phil.
203 [1939]).
In the aforesaid case of Baes, a Roman Catholic priest attempted to prevent a funeral held in
accordance with rites of the sect “Church of Christ” from passing through the Catholic
churchyard fronting the Roman Catholic Church of Lumban, Laguna. Having failed allegedly
because the accused used force and violence, the priest filed a complaint against the former
for violation of Article 133 of the Revised Penal Code, which, however, was dismissed by the
lower court upon motion of the fiscal on the ground that the acts alleged in the complaint did
not constitute the offense against religious feelings. The intolerant priest however had his day
before this Court which, on appeal, ruled otherwise, declaring that the offense to religious
feelings, under the factual circumstances of the case, must be judged according to the
feelings of the Catholics and not those of other faiths. Justice Jose P. Laurel, joined by Justice
Imperial, strongly dissented from the aforesaid conclusion of the majority of the Court, stating
that:
“x x x x As I see it, the only act which is alleged to have offended the religious ‘feelings of the
faithful’ here is that of passing by the defendants through the ‘atrio’ of the church under the
circumstances mentioned. I make no reference to the alleged trespass committed by the
defendants or the threats imputed to them because these acts constitute different offenses
(Arts. 280, 281 and 282-285) and do not fall within the purview of Article 133 of the Revised
Penal Code. I believe that an act, in order to be considered as notoriously offensive to the
religious feelings, must be one directed against religious practice or dogma or ritual for the
purpose of ridicule; the offender, for instance, mocks, scoffs at or attempts to damage an
object of religious veneration; it must be abusive, insulting and obnoxious (Viada,
Commentaries al Codigo Penal, 707, 708, vide also Pacheco, Codigo Penal, p. 259).
“Why, may I ask, should the mere act of passing of the corpse or funeral cortege in or
through a private property be characterized as notoriously offensive to the feelings of any
religion or of its adherents or followers?
“The Lord gave, and the Lord hath taken away; blessed be the name of the Lord (Job.
1.21).
“In this case, the Lord has recalled the life of one of His creatures; and it must be His wish
that the remains shall have the right of way that they may be buried ‘somewhere, in desolate,
windswept space, in twilight land, in no man’s land but in everybody’s land.’
“Rather than too many religions that will make us hate one another because of religious
prejudices and intolerance, may I express the hope that we may grasp and imbibe the one
fundamental of all religions that should make us love one another.’
“It must decline to accept the statement made in the majority opinion that ‘whether or not
the act complained of is offensive to the religious feelings of the Catholics, is a question of fact
which must be judged only according to the feelings of the Catholics and not those of other
faithful ones, for it is possible that certain acts may offend the feelings of those who profess a
certain religion, while not otherwise offensive to the feelings of those professing another faith.’
(italics is mine). I express the opinion that the offense to religious feelings should not be made
to depend upon the more or less broad or narrow conception of any given particular religion,
but should be gauged having in view the nature of the acts committed and after scrutiny of all
the facts and circumstances which should be viewed through the mirror of an unbiased judicial
criterion. Otherwise, the gravity or leniency of the offense would hinge on the subjective
characterization of the act from the point of view of a given religious denomination or sect,
and in such a case, the application of the law would be partial and arbitrary, withal,
dangerous, especially in a country said to be ‘once the scene of religious intolerance and
persecution’ (Aglipay vs. Ruiz, 35 Off. Gaz. 2164)” [pp. 208-210].
In United States vs. Dacquel (36 Phil. 781 [1917]), accused barrio lieutenant halted and
attacked, with the help of three men, some of the Roman Catholic inhabitants of the barrio of
Sococ in the Province of Ilocos Sur who were then having a religious procession without the
barrio lieutenant’s consent or authorization which seemed to have angered him. He was
convicted of grave physical injuries inflicted by him during that incident upon a participant, a
nine-year old girl.
The case of Balcorta (25 Phil. 273 [1913]) reveals that an Aglipayan, who, uninvited,
entered a private house, where services of the Methodist Episcopal Church were being
conducted by 10 to 20 persons and who then threatened the assemblage with a club, thereby
interrupting the divine service, was found guilty under Article 571 of the old Penal Code
(similar to Art. 133, Revised Penal Code).
Again, in Fiscal vs. Dollete (56 O.G. 2371 [1958]), its factual circumstances reveal that the
complaint filed by the chief of police alleged that while devotees of the Iglesia ni Kristo were
holding a religious ceremony in a certain house in Dinalupihan, the accused stopped in front
thereof, made unnecessary noise, and shouted derogatory words against the Iglesia ni Kristo
and its members, and even stoned the house.
Ignacio vs. Ela (99 Phil. 347 [1956]) arose because of the act of the mayor of Sta. Cruz,
Zambales, in permitting the members of the Jehovah’s Witnesses to hold their meeting at the
northwestern part of the plaza only, instead of at the kiosk in the public plaza. The actuation
of the mayor was pursuant to a policy he adopted even before the request made by the
members of the Jehovah’s Witnesses, it appearing that the public plaza, particularly the kiosk,
is located at a short distance from the Roman Catholic Church, causing some concern,
because of the proximity, on the part of the authorities; hence, to avoid disturbance of peace
and order, or the happening of untoward incidents, they deemed necessary to prohibit the use
of that kiosk by any religious denomination as a place of meeting of its members, especially
so, that in the instant case, the tenets of petitioners’ congregation are derogatory to those of
the Roman Catholic Church. The respondent mayor was sustained by this Court, with four
members of the Court dissenting.
The case of U.S. vs. Apurado, et al. (7 Phil. 422 [1907]) shows that while the municipal
council of San Carlos, Occidental Negros was in session, some 500 residents of the town
assembled near the municipal building. Upon the opening of the session a large number of
those assembled about the building crowded into the council chamber and demanded the
dismissal from office of the municipal treasurer, the secretary and the chief of police, and the
substitution in their places of new officials. The council acceded to their wishes and drew up a
formal document setting out the reasons for its action, which was signed by the councilors
present and by several leaders of the crowd. It appears that the movement had its origin in
religious differences between residents of the municipality. The petitioners believed that the
officials above-named should not continue to hold office because of their outspoken allegiance
to one of the factions into which the town was at that time divided. (This Court reversed the
decision of the trial court convicting them of sedition).
In People vs. Reyes, et al (CA-G.R. No. 13633-R, July 27, 1955), the accused Reyes, who
was the chief of police of the town of San Esteban, Ilocos Sur, ordered his policemen to stop
Minister Sanidad of the Iglesia ni Kristo, which was then holding a meeting at the public plaza,
from continuing with his sermon when the latter attacked in the course of his sermon the
Catholic and Aglipayan churches, as well as the women of San Esteban, Ilocos Sur. Accused
were convicted of violation of Art. 131 of the Revised Penal Code.
Again, in People vs. Migallos (CA-G. R. No. 13619, August 5, 1955) wherein the accused
was convicted by the Court of First Instance and Court of Appeals of the offense defined
under Art. 133 of the Revised Penal Code, the facts show that Minister Tagoylo of the Iglesia
ni Kristo sect was stoned by the accused while the former was preaching or spreading his
belief on a public road before a crowd of around 500 persons.
People vs. Mandoriao (CA-G.R. No. 12114, February 25, 1955, 51 O.G. 4619) started with
a rally organized by the Iglesia ni Kristo, attended by about 300 people, 50 of whom belonged
to the said sect, at a public park in Baguio City. One of the ministers of the sect expounded on
a topic asserting that Christ was not God but an ordinary man, causing the crowd to become
unruly, whereupon, appellant went up the stage and grabbed the microphone challenging the
minister to a debate. (The lower court convicted appellant of violation of Art. 133 of the
Revised Penal Code but the Court of Appeals acquitted him).
In People vs. Gesulga (1 C. A. Rep. 103), appellant, a protestant preacher of the Seventh
Day Adventist, was found guilty by the lower court of offending religious feelings. The Court of
Appeals reversed the conviction. The fact show that some Catholic elements in Leyte
conducted a barangay, similar to the rosary, which continued with a procession outside. The
procession with big attendance had to pass along the barrio road in the middle of which a
Protestant meeting was being held under a permit issued by the municipal mayor. On account
of said meeting, the procession could not pass through. Those attending the procession
requested from, but were denied passage by, the appellant who was then speaking at the
meeting (in the course of which he uttered words notoriously offensive to the feelings of the
Catholic faithful). The processional participants who were singing Ave Maria in high pitch, took
another road, while others passed under the nearby houses. When the procession was about
10 meters from the meeting place, appellant temporarily stopped talking and resumed his
talks after the procession had passed.
In the case of People vs. Tengson [(CA) 67 O.G. 1552], the criminal act complained of was
the performance by the appellant of burial rites inside the Roman Catholic Cemetery in
accordance with the rules and practices of the sect called “Christ is the Answer”. There was a
permit for the burial in question. Convicted by the lower court, appellant was acquitted on
appeal.
The inevitable consequence of the election or appointment of priests or ministers of
religion to municipal public offices would be the appropriation of public funds for the payment
of their salaries and their utilization of public property, which may likewise be employed,
directly or indirectly, for the benefit or support of any sect, church, denomination, sectarian
institution, or system of religion—a palpable violation of the constitutional prohibition against
the appropriation of utilization of public money or property for such religious purposes (par. 2,
Sec., 18, Art. VIII, 1973 Constitution).
In sum, if the disqualification prescribed in Section 2175 of the Revised Administrative
Code were nullified, three basic constitutional guarantees would thus be violated—Section 8 of
Article IV, Section 18(2) of Article VIII, and Section 15 of Article XV of the 1973 Constitution.
The newly elected Head of the Catholic church, Pope John Paul I, upon his installation on
September 1, 1978, enjoined his Catholic flock to strictly adhere to the Jeffersonian concept of
separation of Church and State.
In its editorial of September 6, 1978, the Times Journal (p. 4) commented on the aforesaid
Papal pronouncement:
“Scholars the world over hailed the statement of Pope John Paul I affirming the separation of
church and state as ‘of historic importance.’ Some even detected in it a hint of Thomas
Jefferson, the American founding father who worked the concept into the U.S. Constitution.
 “To Filipinos steeped in this constitutional tradition, the Pope’s remarks on this point in his
address before a group of diplomats are very significant. This is especially true in the face of
the over-zealousness of some members of the clergy whose activities in the name of social
action tend to endanger national security.
“While it could be said that the provision in the Philippine Constitution on the separation of
church and state has traces of strong Jeffersonian influence upon the framers of the
fundamental charter, the sad experience of the Filipinos at the hands of the meddling friars
during three centuries of Spanish occupation made them more sensitive to and acutely aware
of the concept. The rejection of a state-supported church during the Philippine Revolution only
served to enhance this theory.
“The Pope said the roles of government and church were of ‘two orders, each with its own
mission and competence’ of a ‘unique’ and ‘special character.’
“The church’s responsibilities ‘do not interfere with purely temporal, technical apolitical
affairs, which are matters for . . . governments,’ he said.
“Significant, too, are the comments on the papal statement by such religious leaders as
Rev. Paul Boyle, head of the Passionist Fathers. ‘The Pope,’ according to Boyle, ‘not only
states it as a principle, but as a desirable one.’
“ ‘What we have here,’ according to Rev. Donald Campton, a Jesuit official and one-time
editor of the national Catholic weekly, America, ‘is not just a statement but a pledge that both
on the national and international levels, we don’t want a state church.’
“With the concept strongly reiterated and the lines once again clearly drawn, it is to be
hoped that we should not forget, rendering unto Caesar what is Caesar’s and to God what is
God’s. The Pope has made his pledge, let no member of the Church make mockery of it.”
Another Filipino historian, Carlos Quirino, writing about Jesuit-educated Ambassador Leon Ma.
Guerrero, author of the prize-winning “The First Filipino”, a biography of Rizal, characterized
the Spanish friar as “the most dangerous of man—one combining great power with a sense of
devotion to his mission—x x x. He, then, became the great antagonist of the first Filipino, Jose
Rizal.”
A significant fact seems to indicate a dangerous attempt on the part of the Catholic hierarchy
in the Philippines to subvert the laws of the Republic, if not the Republic itself. For several
years now, the ecclesiastical tribunal has been annulling marriages, despite the fact that such
marriages can no longer be annulled under our laws. Even marriages of spouses with children
had been nullified. It should be emphasized that the power to annul marriages in the
Philippines is vested only in the courts established by the State, and not in ecclesiastical
tribunals. The grounds for annulment of marriages void ab initio  or merely voidable, are
expressly enumerated in the Civil Code.
In a newspaper interview, the executive vice official of the Metropolitan Matrimonial
Tribunal of the Archdiocese of Manila, in re-affirming the position of the Catholic Church that it
is annulling only marriages which are considered void ab initio  under the rules of the Church,
would not specify the canonical grounds for annulment of marriages considered void from the
very beginning by the Church, stating merely that they are “varied and diverse x x x all of
them are qualified terms with specific meanings very different from the layman’s
understanding” (Times Journal, Modern Living, p. 1, Oct. 3, 1978). This answer is evasive.
Such evasion is compounded by the fact that such annulments by the Church are not
published in any Catholic organ to enable the public to know the facts of each case and the
reasons for annulling the marriage, unlike the cases decided by the civil courts.
However, Father Mario Nepomuceno, a Jesuit marriage counselor, stated before the
Interim Batasang Pambansa committee conducting hearings on the divorce bills, that the
Philippine Catholic church has in fact annulled many marriages on the grounds of “moral
incompatibility” or emotional immaturity on the part of one or both spouses (Daily Express, pp.
1-2, Nov. 7, 1978). This ground finds its counterpart in Nevada and Mexico, where “quickie”
divorces are the fashion. The spouses, Mr. and Mrs. Jose M. Meily, both stated in their column
“Husband and Wife” that the Catholic Church annuls marriages on the ground of lack of full or
sufficient consent on the part of the spouses, which consent may be impaired by ignorance,
no intention to cohabit, lack of consciousness at the time of the marriage either caused by
drugs or alcohol, error, simulation of consent, conditional consent, force and/or fear, and lack
of due discretion (Philippine Panorama, p. 56, Nov. 12, 1978). Except for force and fear, all
the other qualifications as to the existence of full consent are not found in our civil laws.
The statement of Cardinal Sin that the State should not interfere with Church rulings on
marriages solemnized in church is a defiance of the law and the authority of the Republic of
the Philippines; because it implies that the rules of the Church on the validity or nullity of
marriages solemnized in church shall prevail over the laws of the State on the subject (see
“Bulletin Today”, pp. 1 & 12, Oct. 5, 1978). This statement of Cardinal Sin belies his
affirmation that the Church does not interfere with or defy civil laws but respects them (see
“Bulletin Today”, supra).
There is need of emphasizing that marriage is a social institution—not just a mere
contractual relation—whose sanctity is recognized and protected by the State, and is not a
matter within the exclusive jurisdiction of the Church. The solidarity of the Filipino family and
sanctity of the marital bond are the primary concern of the State, perhaps even more than
they are of the Catholic church, as the family unit constitutes the strength of the nation. The
Church tribunals in annulling marriages, is usurping the power of the courts established by the
State. Even the authority of the priests and ministers to solemnize marriages is granted by
State law, without which no priest or minister of any religion or church or sect or
denomination can legally solemnize marriages. If the right of the Catholic church to annul
marriages or to declare marital unions as void ab initio  under its rules were conceded, then
there is no reason to deny the same right to the ministers of the Protestant church and other
religious sect or denomination.
The annulment by the Church does not render the spouses exempt from possible
prosecution for bigamy, adultery or concubinage, should they contract a second marriage or
have carnal knowledge of, or cohabit with persons other than their legitimate spouses of the
first marriage which remains lawful in the eyes of the laws validly promulgated by the State.
 If the Church tribunal believes that the marital union is a nullity from the very beginning
under the civil laws, then the Church should advise the parties to go to the civil courts. But the
Church should not arrogate unto itself State authority and the jurisdiction of the courts created
by the State.
To stress, in our country, there is only one sovereign, the Republic of the Philippines, and
not the Roman Catholic Church or any other church. Only the sovereign, the Republic of the
Philippines, can validly promulgate laws to govern all the inhabitants of the Philippines,
whether citizens or aliens, including laws concerning marriages, persons and family relations.
And only the courts established by the sovereign, the Republic of the Philippines, can apply,
interpret and enforce such laws. The exercise by the Catholic church in promulgating rules
governing marriages and defining the grounds for annulment of the same, as well as
establishing ecclesiastical tribunals to annul marriages or to declare marriages void ab initio, is
a usurpation of the sovereign power of the State.
While any Church or religious sect or denomination has the right to exist independent of
the Constitution and the laws of the country, such Church or religious sect or denomination
shall obey the Constitution and the laws of the State where it exists and operates. The Church
or any religious sect or denomination can invoke the protection of the State whenever its
existence and the persons of its heads, priests, ministers and properties are imperiled or
violated. But the Church or religious sect or denomination has no legal or ecclesiastical power
to subvert the State and its laws. No Church or any religious sect or denomination can repeal
or modify the provisions of the laws validly promulgated by the State.
If the Church believes that the existing laws on annulment of marriages need to be
amended, it should suggest such amendments; but it should not enact or promulgate such
proposed amendments.
The good Cardinal Jaime L. Sin would do well to heed Christ’s reminder (which he
repeated at the Fourth Annual National Prayer Breakfast at the Manila Hotel on November 30,
1978) to His disciples that His Kingdom is not of this world.
And all authorities of the Roman Catholic Church should likewise harken to the injunction
of the supreme Pontiff, Pope John Paul II, who on Friday, November 24, 1978, told the
monks, friars and other religious that their duty is to lead a poor and obedient life rather than
be engaged in “social and political radicalism” (Times Journal, page 1, November 25, 1978).
I therefore vote to grant the petition and to reverse the decision of the trial court.
ANTONIO, J., Concurring.
I concur in the judgment, but dissent from the views expressed by Mr. Justice Fernando. In
resolving the issues in the case at bar, the main opinion failed to consider Section 15 of Article
XV of the Constitution. This provision, which ordains the inviolability of the separation of
Church and State, appears more relevant to the case at bar, if we consider the constitutional
guarantee of religious freedom in its historical setting. It must be recalled that during the
period of Spanish colonial domination, the union of Church and State in the Philippines was
maintained and protected. As observed by one writer:
“The Friar at this period was the full embodiment of Spanish colonial domination. He was de
facto  a colonial civil administrator and a defender of the sovereignty of the King of Spain over
the sub ject Indio  in most provincial towns. Simultaneously he was de jure, by operation of
the Patronato Real, the rightful parish priest of the same towns constituted as parishes.
“Since he was the only Spaniard in residence in most Philippine towns he was not only a
salaried government official; he was entrusted with purely civil functions. Thus, for instance,
he drew up the tribute list of his parish, the list, namely, of those Indios  subject to the poll tax
and to statute labor. He was the director of the local elementary school. He supervised the
election of local officials whose confirmation in office by the colonial government depended
entirely upon his recommendation. He attended, and often presided at the meetings of the
town council, whose ordinances had to be approved by him. Roads, bridges and other public
works were maintained under his orders and vigilance. He was the judge and guardian of
public morals.
“The Friar, therefore, was the promoter, defender, and protector of Spanish rule in the
Philippines. * * *.”1
It is a historical fact that this arrangement spawned abuses on the part of the friars. According
to two noted historians, “one of the most unwelcome characteristics of Spanish colonization
was the encroachment of the church upon the jurisdiction of the government, and the exercise
of political power by the religious. In the central government, represent tatives of the church
or of the religious orders sat in the highest councils. The friars were heavily represented in the
powerful Permanent Commission on Censorship, created in 1856, which had jurisdiction over
‘the press and the introduction of books in the archipelago, according to rules approved by
both the civil and ecclesiastical authorities.’ In the towns the masses were subject to the will
of the parish priest, who dominated the local officials. Indeed, in the towns, the friars and
priests became integrated into the machinery of government: they ‘had become the
government.’ Thus, there was no effective system of checks and balances which could curb
abuses.”2 Said historians further noted that:
“Justice Florentino Torres testified, also before the Philippine Commission in 1900, that the
friars were so powerful that they could intervene directly in the election of municipal officials,
and could obtain the transfer, suspension, or even removal from office of civil officials, from
the highest to the lowest, including the governor-general. According to him, whoever was
suspected by the friars to be a ‘filibuster’, no matter how worthy or upright, ‘. . . became the
object of all manner of governmental action, of military proceedings, and of the cruelest
outrages and vexations, because against him who was accused of being a filibuster all manner
of ill treatment, imprisonment, deportation, and even assassination was permitted.’ ”3
Father Jose Burgos attributed the regressiveness of the Filipinos in his “Manifiesto” in the
newspaper “La Verdad” to the efforts of the friars to keep the poor Indios in ignorance and
rusticity, and this constituted a constant obstacle to the progress and advancement of the
Filipinos. In “El Filibusterismo”, Jose Rizal blamed by the tyranny and abuses of the friars and
Spanish officials, and especially their suppression of free ideas, as the cause of the social and
political backwardness of the Filipinos.
 It is in the anguish of their historical experience that the Filipinos sought a ban on the
intervention of the ecclesiastics in the management of government. Thus, the framers of the
Constitution of the First Philippine Republic (Malolos Constitution) of 1899 deemed it necessary
to prevent interference with, and domination of, the government by the ecclesiastics by
providing, in Article 5, Title III thereof, for the “separation of the Church and the
State.”4 Even before the establishment of the American colonial rule, there was, therefore,
this prevailing clamor of the Filipinos to erect a wall between the Church and the State. In the
instructions of President McKinley to the Philippine Commission which laid out the policies of
the United States in establishing a government in the Philippines, he stated that “the
separation of State and Church shall be real, entire and absolute.”
The separation of State and Church clause was again incorporated in the 1935 and later in
the 1973 Constitutions. Thus, the 1973 Constitution of the Philippines provides that “the
separation of church and state shall be inviolable.”5 This should, therefore, be taken into
consideration in ascertaining the meaning and import of Section 8 of Article IV of the
Constitution, which states that “no religious test shall be required for the exercise of civil or
political rights.”6 According to Story, the “no religious test” clause contained in the United
States Constitution was “not introduced merely for the purpose of satisfying the scruples of
many respectable persons, who feel an invincible repugnance to any religious test or
affirmation. It had a higher object; to cut off forever every pretence of alliance between
church and state in the national government. The framers of the Constitution were fully
sensible of the dangers from this source, marked out in the history of other ages and
countries, and not wholly unknown to our own. They knew that bigotry was unceasingly
vigilant in its stratagems to secure to itself an exclusive ascendancy over the human mind;
and that tolerance was ever ready to arm itself with all the terrors of the civil power to
exterminate those who doubted its dogmas, or resisted its infallibility.”7
It is clear, therefore, that the two provisions, taken together, ensure the separation of
Church from Government, while at the same time giving assurance that no man shall be
discriminated against because of his religious beliefs. The interrelation of these
complementary clauses was well summarized, thus: “The structure of our government has, for
the preservation of civil liberty, rescued the temporal institutions from religious interference.
On the other hand, it has secured religious liberty from the invasion of the civil
authority.”8 Indeed, it is a matter of history that “the union of government and religion tends
to destroy government and degrade religion.”9
It was partly to ensure that, no particular religious sect shall ever again obtain a dominant
hold over civil government that Section 2175 of the Revised Administrative Code was
incorporated in our laws. Thus, it provides that “in no case shall there be elected or appointed
to a municipal office ecclesiastics. * * *”. This Court applied this prohibition in a case decided
on March 14, 1955, or after  the adoption of the 1935 Constitution. Thus, Vilar v.
Paraiso,10 the Court ruled that a minister of the United Church of Christ was ineligible to
assume the office of municipal mayor.
It is, therefore, obvious that on the basis of its history and constitutional purpose, the
aforecited provisions of the Constitution furnish neither warrant nor justification for the
holding in the main opinion that Section 2175 of the Revised Administrative Code, insofar as it
includes ecclesiastics, is inconsistent with the “religious freedom guaranteed in the
Constitution.”
In its American setting, the separation of Church and State clause is justified “by the
necessity for keeping the state out of the affairs of the church, lest the church be
subordinated to the state; in Jeffersonian terms its function is to keep the church out of the
business of government, lest the government be subordinated to the church. Limited powers
of government were not instituted to expand the realm of power of religious organizations, but
rather in favor of freedom of actions and thought by the people.”11
In Torcaso v. Watkins,12 which is accorded persuasive weight in the majority opinion,
there was no showing that Torcaso was an ecclesiastic, or a minister or officer of any religious
sect. As a matter of fact, he was refused a commission to serve as notary public because he
would not declare his belief in God, as required by Article 37 of the Maryland Constitution. The
Supreme Court properly held that the requirement is a religious test and “unconstitutionally
invades the appellant’s freedom of belief and religion and therefore cannot be enforced
against him.”
On the other hand, the situation of private respondent is materially different. He is
admittedly a member of the Clergy, being a priest of the Roman Catholic Church. It is for this
reason that he is being prevented from assuming the office of municipal mayor, and not
because of his religious belief. The prohibition does not impinge upon his religious freedom.
He has the full and free right to entertain his religious belief, to practice his religious principle
and to teach his religious doctrine, as long as he does not violate the laws of morality or the
laws of the land. The separation of Church and State clause in the Constitution appears to be
a recognition of the teachings of history “that powerful sects or groups might bring about a
fusion of governmental and religious functions or a concert or dependency of one upon the
other to the end that official support of the * * * Government would be placed behind the
tenets of one or of all orthodoxies.”13
The intent of the constitutional provision is the vital part, the essence of the law. The clear
purpose of the framers of the Constitution and the understanding of the people when they
approve it, when ascertained, must be enforced. Indeed, in construing provisions of the
Constitution, the proper course is to start out and follow the true intent of its framers and to
adopt that construction which harmonizes best with the context and promotes in the fullest
manner the realization of the constitutional purpose.
I likewise take exception to the view expressed in the majority opinion that the supremacy
of the Constitution supplies the answer to the issue of the eligibility of a member of the clergy
to an elective municipal position. The application of Article XVI, Section 2 of the 1935
Constitution, with its counterpart in Article XVII, Section 7 of the 1973 Constitution,
concerning laws inconsistent with the Constitution, is inaccurate. Article 2175 of the Revised
Administrative Code, in including ecclesiastics within the ambit of the prohibition, is not
inconsistent with the explicit provision of the 1935 Constitution that “(n)o religious test shall
be required for the exercise of civil or political rights.”14 The absence of inconsistency may be
seen from the fact that the prohibition against “religious tests” was not original to the 1935
constitution. It was expressly provided in the Jones Law15 that “no religious test shall be
required for the exercise of civil or political rights” (Section 3). At the time of the passage of
the Jones Law, the original Administrative Code (Act 2657) was already in force, having been
enacted in February 1916. In order to harmonize the Code with the Jones Law, the Code was
amended in October 1916, with the passage of Act 2711. The revision was made expressly
“for the purpose of adapting it to the Jones Law  and the Reorganization
Act.16 Notwithstanding such stated purpose of the amendment, the prohibition against the
election of ecclesiastics to municipal offices, originally embodied in Section 212117 of the
2657, was retained. This is a clear indication that it is not repugnant to the “no religious test”
doctrine which, as aforestated, was already expressly provided for in the Jones Law.
Considering that Section 2175 of the Revised Administrative Code, which “cut off forever
every pretence of any alliance between church and state”, is in conformity with Section 15 of
Article XV of the Constitution, which ordains that “the separation of church and state shall be
inviolable,” it cannot, therefore, be said that such statute, in including ecclesiastics among
those ineligible to municipal office, is violative of the fundamental law.
I concur in the view incisively discussed by Chief Justice Castro that Section 2175 of the
Revised Administrative Code has not been repealed or superseded by any other legislation
and, therefore, is the controlling law in the case before Us.
Since we cannot negate the clear and unequivocal intendment of the law, I therefore
concur in the judgment granting the certiorari.
MUÑOZ PALMA, J., dissenting:
I concur fully with the separate Opinion of Justice Claudio Teehankee on all the points
discussed therein.
As regards the final outcome of this case, with Justices Fernando, Concepcion Jr., Santos,
Fernandez, and Guerrero who share our views on the legal issue raised in the Petition, now
voting with the Chief Justice and the four other Justices to grant the petition  because, “the
vote is indecisive” for “while 5 members of the Court constitute a minority, the vote of the
remaining seven does not suffice to render the challenged provision ineffective,” and “under
the circumstances, certiorari lies,” and therefore the aforementioned Justices “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,” (See 1st paragraph, p. 3 of
Majority Opinion) I can only state that this reasoning surpasses my comprehension.
I believe that there would have been greater fidelity to the prevailing situation had the
petition for certiorari been denied due to the original lack of necessary votes to grant the
same, a status quo maintained insofar as respondent Father Gonzaga is concerned, without a
conclusive ruling pronounced on the legal issue as the required eight votes for purposes of
rendering judgment is absent. (See Sec. 9, Judiciary Act of 1948 as amended by Art. X, Sec.
2[2] 1973 Constitution)
As explained in detail in the separate Opinion of Justice Teehankee, the denial of the
Petition for Review would be in consonance with Sec. 11, Rules 56, Rules of Court.
I now submit the following observations on the matter of the disqualification of an
ecclesiastic to run for a municipal elective office.
The minority view asserts that Section 2175 of the Administrative Code which declares
ecclesiastics among others ineligible for election or appointment to a municipal office, does not
violate any provision of the Constitution and that in fact it strengthens the constitutional
provision on the separation of Church and State. Justice Ramon Aquino particularly states: “to
allow clergymen to take part in political affairs is to start the process of reviving the theocracy
of primitive societies, and past civilizations where the priests, with his chants, incantations,
hocus-pocus and abracadabra played sinister role”, and “Rizal and the reformers would have
labored in vain and would be betrayed if the priest becomes a politician.” (pp. 3, 4, 6 of
Opinion)
I must voice my objection to the above-quoted sweeping statements which are also
echoed in the other Opinions of my distinguished Colleagues, as they savor of bias, prejudice,
and constitute an unjust indictment and dicrimination against priests, more particularly, priest
of the Roman Catholic Church.
It is not for me to pontificate on what is or should be the true mission of priests, ministers,
and nuns, the latter, according to Justice Aquino, also fall under the term “ecclesiastics”, for I
would leave that matter to the conscience and judgment of the person concerned and of his
superiors in his church, but I will speak out in defense of a person’s constitutional right not  to
be dicriminated against, nor to be denied of equal opportunities for work or employment, or
withheld of equal protection of the laws in the exercise of his civil or political rights, simply
because he is garbed in a cassock or a religious habit and has taken vows of service to God
and his church.
One’s religious vocation does not strip the individual of his rights and obligations as a
citizen of his country and as a member of the community where he serves. He is part of
society, and his having taken vows of poverty, humility, and love, renders him all the more
concerned with humanity, more particularly, with the social and economic conditions of the
people with whom he lives be they within or out of his flock. A minister of the church is
therefore not to be feared of playing a “sinister role” in the handling of government affairs,
rather it is the layman motivated by ambition and greed set out to enrich himself and
perpetuate his person in power while the poor becomes poorer and the oppressed becomes
more burdened with injustice, who is to be abhorred and shunned.
The fears expressed by the Justice concerned date far back in the dark ages of history and
in truth are the result of the abuses of a few. Now we live in different times. Concepts in
government, politics, religion, and society as a whole, have undergone drastic changes with
the passing of the years. The Filipino people for their part have kept faith with their goal of
political independence and their love for freedom and justice side by side with their Christian
religion and all other faiths which flourish in the prevailing spirit of ecumenism.
The present role of the Roman Catholic Church was clearly expressed by Pope John XXIII
in his encyclical “Mater et Magistra” thus:
“2. Christianity is the meeting point of earth and heaven. It lays claim to the whole man, body
and soul, intellect and will, inducing him to raise his mind above the changing conditions of
this earthly existence and reach upward for the eternal life of heaven, where one day he will
find his unfailing happiness and peace.
“3. Hence, though the Church’s first care must be for souls, how she can sanctify them and
make them share in the gifts of heaven, she concerns herself too with the exigencies of man’s
daily life, with his livelihood and education, and his general, temporal welfare and prosperity.
“xx     xx     xx
“180. Moreover, in becoming as it were the lifeblood of these people, the Church is not,
nor does she consider herself to be, a foreign body in their midst. Her presence brings about
the rebirth, the resurrection, of each individual in Christ; and the man who is reborn and rises
again in Christ never feels himself constrained from without. He feels himself free in the very
depth of his being, and freely raised up to God. And thus he affirms and develops that side of
his nature which is noblest and best.” (The Social Teaching of Pope John XXIII, p. 5; emphasis
supplied)
The-above may well be the objective of all religions.
What then have we to fear or guard against a minister of the church if ever the reins of local
government are placed in his hands? As one writer says: “When one gives himself wholly to
God, the noblest and best in his nature emerges; spontaneously he is generous, noble, kind
and compassionate; he will have the courage that comes from disinterested love, and having
these qualities, he will become a powerful influence for good.” And so, rather than a tool of
evil, an ecclesiastic or a priest will be an effective instrument of good in the community.
Of much interest, and I would give it much weight, is an 1894 decision of the Supreme
Court of Pennsylvania, United States of America, a country which jealousy guards the
enforcement of the principle of separation of Church and State. In Hysong, et al. v. School
District of Gallitzin Borough, et al., the action was to restrain the school directors of the
District from permitting sectarian teaching in the common schools and from employing as
teachers sisters of the Order of St. Joseph, a religious society of the Roman Catholic Church.
The court of common pleas dismissed the action and dissolved a preliminary injunction
previously issued. An appeal was made to the State Supreme Court and the latter dismissed
the appeal and affirmed the order or decree. Said the Court through Justice John Dean:
“xxx     xxx     xxx
“Unquestionably, these women are Catholics, strict adherents of that faith, believing fully
in its distinctive creed and doctrine. But this does not disqualify them. Our Constitution
negatives any assertion of incapacity or ineligibility to office because of religious belief.  Article
1 of the bill of rights declares: “All men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own conscience; * * * no human authority can
in any case whatever control or interfere with the rights of conscience. If, by law, any man or
woman can be excluded from public employment because he or she is a Catholic, that is a
palpable violation of the spirit of the Constitution; for there can be, in a democracy, no higher
penalty imposed upon one holding to a particular religious belief than perpetual exclusion
from public station because of it. Men may disqualify themselves by crime, but the state no
longer disqualifies because of religious belief.  We cannot now, even if we wanted to, in view
of our law, both fundamental and statutory, go back a century or two, to a darker age , and
establish a religious test as a qualification for office.” (30 Atl. Rep. pp. 482-483, emphasis
supplied)
But then it is strongly argued that the election or appointment of priests or even nuns to
municipal office will be violative of the separation of church and state. I strongly believe that it
is not so. As an eminent Constitutionalist puts it: what is sought to be achieved under the
principle of separation of church and state is that political process is insulated from religion
and religion from politics; in other words, government neutrality in religious matters.1 Thus,
our Constitution provides that no law shall be made respecting an establishment of religion.
Having an ecclesiastic or priest in a local government office such as that of the municipal
mayor will not necessarily mean the involvement of politics in religion or vice-versa. Of course
the religion of the man cannot be dissociated from his personality; in truth, his religion
influences his conduct, his moral values, the fairness of his judgment, his outlook on social
problems, etc. As stated in the Hysong  decision, inevitably in popular government by the
majority, public institutions will be tinged more or less by the religious proclivities of the
majority, but in all cases where a discretion is reposed by the law, it is to be assumed in the
absence of evidence to the contrary, that the public officer will perform his duty in the manner
the law requires. I may add that there are legal remedies available to the citizenry against
official action violative of any existing law or constitutional mandate
WHEREFORE, I vote to deny this Petition for review and to affirm the decision of
respondent Judge.
AQUINO, J., concurring:
Reverend Father Margarito R. Gonzaga was elected in 1971 as mayor of Alburquerquei Bohol.
Fortunato R. Pamil, his opponent, filed a quo warranto  proceeding against him. Pamil invoked
section 2175 of the Revised Administrative Code of 1917 which disqualifies clergymen from
holding a municipal office in the following peremptory terms:
“SEC. 2175. Persons ineligible to municipal office.—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.”
Father Gonzaga interposed the defense that section 2175 was impliedly repealed by section 23
of the Election Code of 1971 which provides:
“SEC. 23. Candidate holding appointive office or position. —Every person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines
and every officer or employee in government-owned or controlled corporations, shall ipso-
facto  cease in his office or position on the date he files his certificate of candidacy: Provided,
That the filing of a certificate of candidacy shall not affect whatever civil, criminal or
administrative liabilities which he may have incurred.”
It may be noted that section 2175 disqualifies from holding a municipal office soldiers in active
service as well as priests. The fact that section 32 of the Election Code of 1971 allows active
members of the Armed Forces of the Philippines to run for municipal mayor may give the
impression that Section 2175 was impliedly repealed by Section 23. The lower court was of
that opinion. It denied the petition for quo warranto. Pamil appealed by means of certiorari
under Republic Act No. 5440.
I am of the opinion that the appeal is meritorious. The lower court erred in dismissing the
petition for quo warranto. A soldier in the active service may run for mayor because under
Section 23 he ipso facto  ceases to be an army man from the time he files his certificate of
candidacy.
In contrast, a priest continues to be a priest notwithstanding his filing of a certificate of
candidacy for municipal mayor.
So, it cannot be concluded that section 23 of the Revised Election Code impliedly
abrogated the ineligibility of priests to run for municipal mayor as provided in section 2175.
There is no irreconciliable repugnancy between section 23 and section 2175 insofar as
ecclesiastics are concerned.
Section 2175 and section 23 are in pari materia  with respect to soldiers in the active
service. There is no incompatibility between the two sections with respect to soldiers. The
disqualification in section 2175, as regards soldiers in the active service, is compatible with
their cessation as members of the armed forces when they file their certificates of candidacy,
as provided for in section 23. Soldiers can hold a municipal office if they are no longer in
active service. That can be implied from section 2175 itself.
For that matter, the automatic resignation from public office, under section 23, of public
officers who file their certificates of candidacy has no connection with the disqualification in
section 2175 of ecclesiastics from holding any municipal office. That disqualification is not
affected by the provision of the ipso facto  resignation of public officers who file their
certificates of candidacy because an ecclesiastic is not a public officer.
The view that section 23 impliedly repealed the disqualification of ecclesiastics from
holding a municipal office is strained and far-fetched.
So much for section 23 of the Election Code of 1971. Mr. Justice Fernando, the Court’s
leading authority on constitutional law, tackled the question of respondent’s eligibility from the
constitutional viewpoint although the issue of constitutionality was not raised in the lower
court. I disagree with the opinion that the provision of section 2175 disqualifying ecclesiastics
from holding a municipal office is unconstitutional.
The term “ecclesiastics” refers to priests, clergymen or persons in holy orders or
consecrated to the service of the church. Broadly speaking, it may include nuns.
Conformably with section 2175, an ordained minister of the United Church of Christ was
held to be ineligible to hold the office of municipal mayor. His election to that office was
nullified in a quo warranto  proceeding (Vilar vs. Paraiso, 96 Phil. 659).
It is argued that the disqualification of priests was abrogated by section 1(7), Article III of
the 1935 Constitution which provides that “no religious test shall be required for the exercise
of civil or political rights”. It is assumed that the disqualification is “inconsistent with the
religious freedom guaranteed by the Constitution (See sec. 8, Art. IV; sec. 18[2], Art. VIII,
and sec. 8, Art. XII, 1973 Constitution).
I disagree with that conclusion. There is no incongruency between the disqualification
provision and the “no religious test” provision. The two provision can stand together. The
disqualification provision does not impair the free exercise and enjoyment or religious
profession and worship. It has nothing to do with religious freedom.
The disqualification of priests from holding a municipal office is an application of the
mandate for the separation of church and state (Sec. 15, Art. XV, 1973 Constitution; Art. 5,
Malolos Constitution) which is based on Christ’s admonition: “Render, therefore, unto Caesar
the things that are Caesar’s and to God the things that are God’s”.
It should be borne in mind that the disqualification in section 2175 is a reproduction of
section 15 of Act No. 82 of the Philippine Commission which was passed on January 31, 1901.
The Commission established that disqualification in spite of the “no religious test” provision
found in article VI of the Federal Constitution. The constitutionality of that disqualification had
not been assailed up to 1971 when the instant case arose.
The disqualification of priests from holding municipal offices is a consequence of the
experience of our forefathers during the Spanish regime when the intervention of the local
curate in municipal affairs resulted in oppression, abuses, misery, immorality and stagnation.
The revolution against Spain was partly an uprising against the friars whose predominance in
the country’s affairs was characterized by Plaridel as the soberania monacal.
There is a chapter in Rizal’s Noli Me Tangere  entitled Los Soberanos  (The Rulers), wherein
the author answers the question: “Quienes eran los caciques del pueblo?”. He noted that the
town of San Diego was not ruled by Don Rafael Ibarra, the richest landowner, nor by Capitan
Tiago, the moneylender, nor by the gobernardorcillo, nor by God. It was ruled by the curate
and the alferez. Rizal described the two rulers as follows:
 “San Diego was a kind of Rome: not the Rome of the time when the cunning Romulus laid
out its walls with a plow, nor of the later time when, bathed in its own and others’ blood, it
dictated laws to the world—no, it was a Rome of our own times with the difference that in
place of marble monuments and coloseums it had its monuments of sawali and its cockpit of
nipa. The curate was the Pope in the Vatican; the alferez of the Civil Guard, the King of Italy
on the Quirinal: all, it must be understood, on a scale of nipa and bamboo. Here, as there,
continual quarreling, went on, since each wished to be the master and considered the other
an intruder. x x x x x x Estos son los soberanos del pueblo de San Diego.”
The flagitious thralldom, which the friars imposed on the Filipinos, was an aspect of the
malignant social cancer that Rizal and the propagandists exposed and combated in their
writings.
The ecclesiastic is disqualified to run for an elective office in order to prevent his church
from controlling the government. The same reason holds true with respect to soldiers in active
service. They should not meddle in politics so that no segment of the army can overthrow the
government.
Indeed, there is no reason why a priest should hold a civil office. He should have enough
work in his hands ministering to the spiritual needs of the members of his church. He can be
an activist and he can champion social justice if he is not a municipal officeholder.
Respondent Father Gonzaga is supposed to devote himself solely to spiritual matters and
not to temporal affairs such as the administration of a municipality. The objective of the
Roman Catholic Church is the salvation or redemption of souls. To attain that objective, the
priest under the Codex Juris Canonici  is invested with the threefold function of teaching,
directing and sanctifying in the name of Jesus Christ. That means the governance of the
faithful and the ministry of divine worship or exclusive dedication to the service of God and the
sanctification of men in the manner of the priestly and Levitical orders of the Old Testament
(19 Encyclopedia Britanica, 1973 Ed., pp. 465-466).
To nullify the disqualification provision would be a retrogressive step. To allow clergymen
to take part in political affairs is to start the process of reviving the theoracy of primitive
societies and past civilizations where the priests, with his chants, incantations, hocus-pocus
and abracadabra, played a sinister role.
These observations are based on historical facts. I have no ingrained bias or prejudice
against priests. There are, and there have been good and saintly clergymen like the late
Father George J. Wilmann, S. J. Philippine Deputy of the Knights of Columbus. Religion plays
an important role in enforcing the moral code and promoting order and morality in society.
Rizal and the reformers would have labored in vain and would be betrayed if the priest
becomes a politician. He would be debased and his church would be degraded. The evils
arising from his intervention in municipal affairs would outweight the advantages, if any.
A priest, who is disqualified from becoming a municipal employee, is not denied any part
of his religious freedom or his political rights. A priest may have the civil right to embrace the
religious vocation but he does not have the constitutional right to be a municipal employee.
He can choose between being a municipal employee and being a priest. He cannot be both.
That arrangement is good for himself and his church and for society.
On the other hand, the statutory provision that only laymen can hold municipal offices or
that clergymen are disqualified to become municipal officials is compatible with the “no
religious test” provision of the 1935 Constitution which is also found in section 8, article IV of
the 1973 Constitution and in section 3 of the Jones Law. They are compatible because they
refer to different things.
The “no religious test” provision means that a person or citizen may exercise civil right
(like the right to acquire property) or a political right (the right to vote or hold office, for
instance) without being required to belong to a certain church or to hold particular religious
beliefs (See Miller vs. El Paso County, 146, S. W. 2nd 1027, 67 C.J.S. 128, note 48; 46 C. J.
939, note 44).
Thus, a constitutional provision prescribing that certain public officers shall be Protestants
requires a religious test (Hale vs. Everett, 53 N.H. 9, 67 C.J.S. 129, note 51; 46 C. J. 939, note
47. See State vs. Wilmington City Council, 3 Del. 294, 67 C.J.S. 129, note 52).
And, a constitutional provision requiring as a condition for appointment as a notary public
that a person should declare his belief in the existence of God or should not be an atheist or
an agnostic, requires a religious test and is, therefore, unconstitutional. That constitutional
provision implements the historically discredited policy of “probing religious beliefs by test
oaths or limiting public offices to persons who have, or perhaps more properly profess to
have, a belief in some particular kind of religious concepts.” (Torcaso vs. Watkins, 367 U. S.
488, 494, 6 L. Ed. 2nd 982, 987).
The historical background of the “no religious test” provision clearly shows that it is
consistent with the disqualification of all clergymen from holding public office and that it
cannot be invoked to invalidate the statutory provision on disqualification.
The “no religious test” provision is a reaction against the Test Acts which once upon a time
were enforced in England, Scotland and Ireland. The Test Acts provided that only those who
professed the established religion were eligible for public office. Those laws discriminated
against recusants or Roman Catholics and nonconformists.
In England the religious test was first embodied in the Corporation Act of 1661. It provided
that all members of town corporations, in addition to taking the oaths of allegiance and
subscribing to a declaration against the Solemn League and Covenant, should, within one year
before election, receive the sacrament of the Lord’s Supper according to the rites of the
Church of England. Later, the requirement was extended to all public offices.
The English Test Act of 1678 provided that all peers and members of the House of
Commons should make a declaration against transubstantiation, invocation of saints, and the
sacrifice of the mass. During the later part of the nineteenth century the Test Acts were
abrogated.
In Scotland, the Test Act made profession of the reformed faith a condition of public office. In
Ireland, the principle of using the sacrament as a test was adopted. Oaths of allegiance and
declarations against Roman Catholic beliefs and practices were exacted. Later, the tests were
abolished in the two countries (21 Encyclopedia Britannica, 1973 Ed., 883-4).

To require that a person should be a Protestant in order to be eligible to public office is

different from disqualifying all clergymen from holding municipal positions. The requirement as
to religious belief does violence to religious freedom, but the disqualification, which
indiscriminately applies to all persons regardless of religious persuasion, does not invade an
ecclesiastic’s religious belief. He is disqualified not because of his religion but because of his
religious vocation.

Consequently, section 2175 can coexist, as it has coexisted for several decades, with the
“no religious test” constitutional provision. It is not unconstitutional. It strengthens the
constitutional provision for the separation of church and state.

I concur in the opinions of the Chief Justice and Justices Barredo, Makasiar and Antonio. I
vote for the reversal of the lower court’s decision and the nullification of Father Gonzaga’s
election as municipal mayor of Alburquerque, Boho.

Decision reversed.

Notes.—The pendency of an election protest is not an obstacle to the assumption of

office. From the very nature of things. This assumption cannot refer to that by the protestee
for it is he who is in office by virtue of the proclamation by the board of canvassers.
Indubitably, the assumption of office herein referred to as possible “notwithstanding an
election protest” is that of the protestant, which is made possible by the “provisions of the
Rules of Court regarding execution of judgment pending appeal”. (Gahol vs. Riodique, 64
SCRA 494).

The use of two or more kinds of writing cannot have the effect of invalidating a ballot
unless it clearly appears that they had been deliberately put by the voter to serve as an
identification mark. (Lontoc vs. Pineda, 64 SCRA 681; Ferrer vs. Alban, 101 Phil. 1018).

The power of the Commission is limited to the enforcement and administration of all laws
relative to the conduct of elections. (Sultan Rasuman vs. COMELEC, 47 SCRA 264).

The Commission on Elections cannot inquire into questions relating to election returns not
raised originally before the Board of Canvassers, otherwise there will be undue and endless
delays in pre-proclamation proceedings before the COMELEC, contrary to the doctrine that
pre-proclamation controversies should be summarily decided. (Moore vs. COMELEC, 31 SCRA
60; Anni vs. Rasul, L-34904, Aug. 30, 1972).

——o0o——
 G.R. No. 119673. July 26, 1996.* respondent Board x-rated petitioners TV series for “attacking” other religions, especially the
Catholic church. An examination of the evidence, especially Exhibits “A,” “A-1,” “B,” “C,” and
“D” will show that the so-called “attacks” are mere criticisms of some of the deeply held
IGLESIA NI CRISTO (INC), petitioner, vs. THE HONORABLE COURT OF APPEALS,
dogmas and tenets of other religions. The videotapes were not viewed by the respondent
BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE
court as they were not presented as evidence. Yet they were considered by the respondent
HENRIETTA S. MENDEZ, respondents.
court as indecent, contrary to law and good customs, hence, can be prohibited from public
Constitutional Law; Freedom of Religion; P.D. 1986 gives the Board the power to viewing under Section 3(c) of PD 1986. This ruling clearly suppresses petitioner’s freedom of
screen, review and examine all television programs.—The law gives the Board the power to speech and interferes with its right to free exercise of religion.
screen, review and examine all “television programs. ” By the clear terms of the law, the
Same; Same; The ground “attack against another religion” was merely added by the
Board has the power to “approve, delete x x x and/or prohibit the x x x exhibition and/or
respondent Board in its Rules.—The respondents cannot also rely on the ground “attacks
television broadcast of x x x television programs x x x.” The law also directs the Board to apply
against another religion” in x-rating the religious program of petitioner. Even a sideglance at
“contemporary Filipino cultural values as standard” to determine those which are objectionable
Section 3 of PD No. 1986 will reveal that it is not among the grounds to justify an order
for being “immoral, indecent, contrary to law and/or good customs, injurious to the prestige of
prohibiting the broadcast of petitioner’s television program. The ground “attack against
the Republic of the Philippines and its people, or with a dangerous tendency to encourage the
another religion” was merely added by the respondent Board in its Rules. This rule is void for
commission of violence or of a wrong or crime.”
it runs smack against the hoary doctrine that administrative rules and regulations cannot
Same; Same; Freedom of religion is designed to protect the broadest possible liberty of expand the letter and spirit of the law they seek to enforce.
conscience, to allow each man to believe as his conscience directs, to profess his beliefs and
Same; Same; Prior restraint on speech, including religious speech, cannot be justified by
to live as he believes he ought to live, consistent with the liberty of others and with the
hypothetical fears but only by the showing of a substantive and imminent evil which has taken
common good.—We reject petitioner’s submission which need not set us adrift in a
the life of a reality already on ground.—The records show that the decision of the respondent
constitutional voyage towards an uncharted sea. Freedom of religion has been accorded
Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to
a preferred status by the framers of our fundamental laws, past and present. We have
justify the conclusion that the subject video tapes constitute impermissible attacks against
affirmed this preferred status well aware that it is “designed to protect the broadest possible
another religion. There is no showing whatsoever of the type of harm the tapes will bring
liberty of conscience, to allow each man to believe as his conscience directs, to profess his
about especially the gravity and imminence of the threatened harm. Prior restraint on speech,
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
including religious speech, cannot be justified by hypothetical fears but only by the showing of
with the common good.” We have also laboriously defined in our jurisprudence the
a substantive and imminent evil which has taken the life of a reality already on ground.
intersecting umbras and penumbras of the right to religious profession and worship.
PADILLA, J., Concurring and Dissenting Opinion:
Same; Same; The exercise of religious freedom can be regulated by the State when it
will bring about the clear and present danger of some substantial evil which the State is duty
Constitutional Law; Freedom of Religion; There can be no prior restraints on the
bound to prevent.—We thus reject petitioner’s postulate that its religious program is per
exercise of free speech, expression or religion.—It should by now be undisputably recognized
se beyond review by the respondent Board. Its public broadcast on TV of its religious program
and firmly rooted in this country that there can be no prior restraints on the exercise of free
brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes
speech, expression or religion, unless such exercise poses a clear and present danger of a
and ears of children. The Court iterates the rule that the exercise of religious freedom can be
substantive evil which the State has the right and even the duty to prevent. The ban against
regulated by the State when it will bring about the clear and present danger of some
such prior restraints will result, as it has resulted in the past, in occasional abuses of free
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more
speech and expression but it is immeasurably preferable to experience such occasional abuses
overriding interest of public health, public morals, or public welfare.
of speech and expression than to arm a governmental administrative agency with the
authority to censor speech and expression in accordance with legislative standards which
Same; Same; Any act that restrains speech is hobbled by the presumption of invalidity
albeit apparently laudable in their nature, can very well be bent or stretched by such agency
and should be greeted with furrowed brows.—Deeply ensconced in our fundamental law is its
to convenient latitudes as to frustrate and eviscerate the precious freedoms of speech and
hostility against all prior restraints on speech, including religious speech. Hence, any act that
expression.
restrains speech is hobbled by the presumption of invalidity and should be greeted with
furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it
MELO, J., Concurring and Dissenting Opinion:
fails to discharge this burden, its act of censorship will be struck down. It failed in the case at
bar.
Constitutional Law; Freedom of Religion; Any prior restriction upon a religious
expression would be a restriction on the right of religion .—The enjoyment of the freedom of
Same; Same; Ruling of respondent court clearly suppresses petitioner’s freedom of
religion is always coupled with the freedom of expression. For the profession of faith inevitably
speech and interferes with its right to free exercise of religion.—The evidence shows that the
carries with it, as a necessary appendage, the prerogative of propagation. The constitutional
guaranty of free exercise and enjoyment of religious profession and worship thus denotes the
right to disseminate religious information (American Bible Society vs. City of Manila, 101 Phil.
386 [1957]). Any prior restriction upon a religious expression would be a restriction on the
right of religion.
Same; Same; The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society.—Freedom of religion
and expression is the rule and its restriction, the exception. Any prior restriction on the
exercise of the freedom to profess religious faith and the propagation thereof will unduly
diminish that religion’s authority to spread what it believes to be the sacred truth. The State
can exercise no power to restrict such right until the exercise thereof traverses the point that
will endanger the order of civil society.
KAPUNAN, J., Concurring and Dissenting Opinion:
Constitutional Law; Freedom of Religion; The freedom to disseminate religious
information is a right protected by the free exercise clause of the Constitution .—The freedom
to disseminate religious information is a right protected by the free exercise clause of the
Constitution. It encompasses a wide range of ideas and takes many forms. In the process of
enlightening the adherents or convincing non-believers of the truth of its beliefs, a religious
sect or denomination is allowed the free choice of utilizing various media, including pulpit or
podium, print, television film, and the electronic mail.
MENDOZA, J., Separate Opinion:
Constitutional Law; Freedom of Religion; Fact that judicial review of administrative
action is available does not obviate the constitutional objection to censorship .—Censorship
may be allowed only in a narrow class of cases involving pornography, excessive violence, and
danger to national security. Even in these cases, only courts can prohibit the showing of a film
or the broadcast of a program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through subsequent punishment.
Considering the potentiality for harm which motion pictures and TV programs may have
especially on the young, all materials may validly be required to be submitted for review
before they may be shown or broadcast. However, the final determination of the character of
the materials cannot be left to an administrative agency. That judicial review of administrative
action is available does not obviate the constitutional objection to censorship.
PANGANIBAN, J., Separate Concurring Opinion:
Constitutional Law; Freedom of Religion; The mere invocation of religious freedom will
not stalemate the State and ipso facto render it incompetent in preserving the rights of others
and in protecting the general welfare.—Religious freedom is absolute when it is confined
within the realm of thought to a private, personal relationship between a man’s conscience
and his God, but it is subject to regulation when religious belief is transformed into external
acts that affect or afflict others. The mere invocation of religious freedom will not stalemate
the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
VITUG, J., Separate Opinion:
Constitutional Law; Freedom of Religion; The exercise of religious belief is not without
inherent and statutory limitations. —I agree with those who support the view that religious
freedom occupies an exalted position in our hierarchy of rights and that the freedom to
disseminate religious information is a constitutionally-sanctioned prerogative that allows any
legitimate religious denomination a free choice of media in the propagation of its credo. Like
any other right, however, the exercise of religious belief is not without inherent and statutory
limitations.
Same; Same; The Board is empowered to screen, review and examine all television
programs.—A reading of Section 3 of P.D. 1986 shows that the Board is empowered to
“screen, review and examine all x x x television programs” and to “approve or disprove, delete
objectionable portion from and/or prohibit the x x x television broadcast of x x x television
programs x x x which, in the judgment of the BOARD (so) applying contemporary Filipino
cultural values as standard, are objectionable for being immoral, indecent, contrary to
law and/or good customs x x x.” I believe that the phrase “contrary to law” should be read
together with other existing laws such as, for instance, the provisions of the Revised Penal
Code, particularly Article 201, which prohibits the exhibition of shows that “offend another
race or religion.” I see in this provision a good and sound standard. Recent events indicate
recurrent violent incidents between and among communities with diverse religious beliefs and
dogma. The danger is past mere apprehension; it has become a virtual reality and now
prevalent in some parts of the world.
Same; Same; In order not to infringe constitutional principles, any restriction by the
Board must, of course, be for legitimate and valid reasons. —In order not to infringe
constitutional principles, any restriction by the Board must, of course, be for legitimate and
valid reasons. I certainly do not think that prior censorship should altogether be rejected just
because sanctions can later be imposed. Regulating the exercise of a right is not necessarily
an anathema to it; in fact, it can safeguard and secure that right.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Cuevas, De la Cuesta & De las Alas for petitioner.
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of
Appeals affirming the action of the respondent Board of Review for Moving Pictures and
Television which x-rated the TV Program “Ang Iglesia ni Cristo.”
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television
program entitled “Ang Iglesia ni Cristo” aired on Channel 2 every Saturday and on Channel 13
every Sunday. The program presents and propagates petitioner’s religious beliefs, doctrines
and practices oftentimes in comparative studies with other religions.
Sometime in the months of September, October and November 1992, petitioner submitted
to the respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV
program Series Nos. 115, 119, 121 and 128. The Board classified the series as “X” or not for
public viewing on the ground that they “offend and constitute an attack against other religions
which is expressly prohibited by law.”
Petitioner pursued two (2) courses of action against the respondent Board. On November
28, 1992, it appealed to the Office of the President the classification of its TV Series No. 128.
It succeeded in its appeal for on December 18, 1992, the Office of the President reversed the
decision of the respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly
telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No.
Q-92-14280, with the RTC, NCR, Quezon City.1 Petitioner alleged that the respondent Board
acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit
the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115,
119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 1986 in
relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner’s prayer for a writ of
preliminary injunction. The parties orally argued and then marked their documentary evidence.
Petitioner submitted the following as its exhibits, viz.:
. (1)Exhibit “A,” respondent Board’s Voting Slip for Television showing its September
9, 1992 action on petitioner’s Series No. 115 as follows:2
REMARKS:
There are some inconsistencies in the particular program as it is very surprising for this
program to show series of Catholic ceremonies and also some religious sects and using it in
their discussion about the bible. There are remarks which are direct criticism which affect
other religions.
Need more opinions for this particular program. Please subject to more opinions.
. (2)Exhibit “A-1,” respondent Board’s Voting Slip for Television showing its September
11, 1992 subsequent action on petitioner’s Series No. 115 as follows:3
REMARKS:
This program is criticizing different religions, based on their own interpretation of the Bible.
We suggest that the program should delve on explaining their own faith and beliefs and
avoid attacks on other faith.
. (3)Exhibit “B,” respondent Board’s Voting Slip for Television showing its October 9,
1992 action on petitioner’s Series No. 119, as follows:4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic)
veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible
that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and decision.
. (4)Exhibit “C,” respondent Board’s Voting Slip for Television showing its October 20,
1992 action on petitioner’s Series No. 121 as follows:5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right and the
rest are wrong, which they clearly present in this episode.
. (5)Exhibit “D,” respondent Board’s Voting Slip for Television showing its November
20, 1992 action on petitioner’s Series No. 128 as follows:6
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant’s beliefs.
We suggest a second review.
. (6)Exhibits “E,” “E-1,” petitioner’s block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.7
. (7)Exhibit “F,” petitioner’s Airtime Contract with Island Broadcasting Corporation.8
. (8)Exhibit “G,” letter dated December 18, 1992 of former Ex-ecutive Secretary
Edelmiro A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of
the respondent Board which x-rated the showing of petitioner’s Series No. 129. The
letter reads in part:
“x x x
 The television episode in question is protected by the constitutional guarantee of free
speech and expression under Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the episode
poses any clear and present danger sufficient to limit the said constitutional guarantee.”
. (9)Exhibits “H,” “H-1,” letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board
x-rating petitioner’s Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
. (1)Exhibit “1,” Permit Certificate for Television Exhibition No. 15181 dated December
18, 1992 allowing the showing of Series No. 128 under parental guidance.
. (2)Exhibit “2,” which is Exhibit “G” of petitioner.
. (3)Exhibit “3,” letter dated October 12, 1992 of Henrietta S. Mendez, addressed to
the Christian Era Broadcasting Service which reads in part:
xxx
In the matter of your television show “Ang Iglesia ni Cristo” Series No. 119, please be
informed that the Board was constrained to deny your show a permit to exhibit. The material
involved constitute an attack against another religion which is expressly prohibited by
law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioner’s bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial
briefs.9 The pre-trial briefs show that the parties’ evidence is basically the evidence they
submitted in the hearing of the issue of preliminary injunction. The trial of the case was set
and reset several times as the parties tried to reach an amicable accord. Their efforts failed
and the records show that after submission of memoranda, the trial court rendered a
Judgment,10 on December 15, 1993, the dispositive portion of which reads:
“x x x
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for
Moving Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary
permit for all the series of ‘Ang Iglesia ni Cristo’ program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other
existing religions in showing ‘Ang Iglesia ni Cristo’ program.
SO ORDERED.”
Petitioner moved for reconsideration11 praying: (a) for the deletion of the second paragraph
of the dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined
from requiring petitioner to submit for review the tapes of its program. The respondent Board
opposed the motion.12 On March 7, 1993, the trial court granted petitioner’s Motion for
Reconsideration. It ordered:13
“x x x
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court’s
Order dated December 15, 1993, directing petitioner to refrain from offending and attacking
other existing religions in showing ‘Ang Iglesia ni Cristo’ program is hereby deleted and set
aside. Respondents are further prohibited from requiring petitioner Iglesia ni Cristo to submit
for review VTR tapes of its religious program ‘Ang Iglesia ni Cristo.’ ”
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was
denied.14
On March 5, 1995, the respondent Court of Appeals15 reversed the trial court. It ruled
that: (1) the respondent board has jurisdiction and power to review the TV program “Ang
Iglesia ni Cristo,” and (2) the respondent Board did not act with grave abuse of discretion
when it denied permit for the exhibition on TV of the three series of “Ang Iglesia ni Cristo” on
the ground that the materials constitute an attack against another religion. It also found the
series “indecent, contrary to law and contrary to good customs.”
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
‘ANG IGLESIA NI CRISTO’ PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM
OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT
BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS
SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT
POSES A CLEAR AND PRESENT DANGER.
III
 WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
‘ANG IGLESIA NI CRISTO,’ A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY
TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the
power to review petitioner’s TV program “Ang Iglesia ni Cristo,” and (2) second, assuming it
has the power, whether it gravely abused its discretion when it prohibited the airing of
petitioner’s religious program, series Nos. 115, 119 and 121, for the reason that they
constitute an attack against other religions and that they are indecent, contrary to law and
good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its
section 3 pertinently provides:
“Sec. 3. Powers and Functions.—The BOARD shall have the following functions, powers and
duties:
x x x      x x x      x x x
b)To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills, whether
such motion pictures and publicity materials be for theatrical or non-theatrical distribution
for television broadcast or for general viewing, imported or produced in the Philippines
and in the latter case, whether they be for local viewing or for export.
c)To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast of the motion pictures, television programs and publicity materials, subject of
the preceding paragraph, which, in the judgment of the BOARD applying contemporary
Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
i)Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;
ii)Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii)Those which glorify criminals or condone crimes;
iv)Those which serve no other purpose but to satisfy the market for violence or
pornography;
v)Those which tend to abet the traffic in and use of prohibited drugs;
vi)Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii)Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all “television
programs.” By the clear terms of the law, the Board has the power to “approve, delete x x x
and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x
x.” The law also directs the Board to apply “contemporary Filipino cultural values as standard”
to determine those which are objectionable for being “immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence or of a wrong
or crime.”
Petitioner contends that the term “television program” should not include religious
programs like its program “Ang Iglesia ni Cristo.” A contrary interpretation, it is urged, will
contravene Section 5, Article III of the Constitution which guarantees that “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.”
We reject petitioner’s submission which need not set us adrift in a constitutional voyage
towards an uncharted sea. Freedom of religion has been accorded a preferred status by the
framers of our fundamental laws, past and present. We have 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.”16 We have
also laboriously defined in our jurisprudence the intersecting umbras and penumbras of the
right to religious profession and worship. To quote the summation of Mr. Justice Isagani A.
Cruz, our well-known constitutionalist:17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to believe
and freedom to act on one’s beliefs. 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.
. (1)Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He
may indulge his own theories about life and death; worship any god he chooses, or none at
all; embrace or reject any religion; acknowledge the divinity of God or of any being that
appeals to his reverence; recognize or deny the immortality of his soul—in fact, cherish any
religious conviction as he and he alone sees fit. However absurd his beliefs may be to others,
even if they be hostile and heretical to the majority, he has full freedom to believe as he
pleases. He may not be required to prove his beliefs. He may not be punished for his inability
to do so. Religion, after all, is a matter of faith. ‘Men may believe what they cannot prove.’
Every one has a right to his beliefs and he may not be called to account because he cannot
prove what he believes.
. (2)Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public,
his freedom to do so becomes subject to the authority of the State. As great as this liberty
may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed
only with a proper regard for the rights of others. It is error to think that the mere invocation
of religious freedom will stalemate the State and render it impotent in protecting the general
welfare. The inherent police power can be exercised to prevent religious practices inimical to
society. And this is true even if such practices are pursued out of sincere religious conviction
and not merely for the purpose of evading the reasonable requirements or prohibitions of the
law.
Justice Frankfurter put it succinctly: ‘The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma. Accordingly, while one has full freedom to
believe in Satan, he may not offer the object of his piety a human sacrifice, as this would be
murder. Those who literally interpret the Biblical command to “go forth and multiply” are
nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A
person cannot refuse to pay taxes on the ground that it would be against his religious tenets
to recognize any authority except that of God alone. An atheist cannot express his disbelief in
acts of derision that wound the feelings of the faithful. The police power can be validly
asserted against the Indian practice of the suttee, born of deep religious conviction, that calls
on the widow to immolate herself at the funeral pile of her husband.
We thus reject petitioner’s postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches even the eyes and ears of
children. The Court iterates the rule that the exercise of religious freedom can be regulated by
the State when it will bring about the clear and present danger of some substantive evil which
the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of
public health, public morals, or public welfare. A laissez faire policy on the exercise of religion
can be seductive to the liberal mind but history counsels the Court against its blind adoption
as religion is and continues to be a volatile area of concern in our country today. Across the
sea and in our shore, the bloodiest and bitterest wars fought by men were caused by
irreconcilable religious differences. Our country is still not safe from the recurrence of this
stultifying strife considering our warring religious beliefs and the fanaticism with which some
of us cling and claw to these beliefs. Even now, we have yet to settle the near century old
strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise
of weird religious cults espousing violence as an article of faith also proves the wisdom of our
rule rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to
subject any act pinching the space for the free exercise of religion to a heightened scrutiny
but we shall not leave its rational exercise to the irrationality of man. For when religion divides
and its exercise destroys, the State should not stand still.
It is also petitioner’s submission that the respondent appellate court gravely erred when it
affirmed the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121
and 128. The records show that the respondent Board disallowed the program series for
“attacking” other religions. Thus, Exhibits “A,” “A-1,” (respondent Board’s Voting Slip for
Television) reveal that its reviewing members x-rated Series 115 for “x x x criticizing different
religions, based on their own interpretation of the Bible.” They suggested that the program
should only explain petitioner’s “x x x own faith and beliefs and avoid attacks on other faiths.”
Exhibit “B” shows that Series No. 119 was x-rated because “the Iglesia ni Cristo insists on the
literal translation of the bible and says that our Catholic veneration of the Virgin Mary is not to
be condoned because nowhere it is found in the bible that we should do so. This is intolerance
x x x.” Exhibit “C” shows that Series No. 121 was x-rated “x x x for reasons of the attacks,
they do on, specifically, the Catholic Religion. x x x (T)hey can not tell, dictate any other
religion that they are right and the rest are wrong x x x” Exhibit “D” also shows that Series No.
128 was not favorably recommended because it “x x x outrages Catholic and Protestant’s
beliefs.” On second review, it was x-rated because of its “unbalanced interpretations of some
parts of the bible.”18 In sum, the respondent Board x-rated petitioner’s TV program Series
Nos. 115, 119, 121 and 128 because of petitioner’s controversial biblical interpretations and its
“attacks” against contrary religious beliefs. The respondent appellate court agreed and even
held that the said “attacks” are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on
speech, including religious speech. Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows.19 It is the burden of
the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act
of censorship will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for
“attacking” other religions, especially the Catholic church. An examination of the evidence,
especially Exhibits “A,” “A-1,” “B,” “C,” and “D” will show that the so-called “attacks” are
mere criticisms of some of the deeply held dogmas and tenets of other religions. The
videotapes were not viewed by the respondent court as they were not presented as evidence.
Yet they were considered by the respondent court as indecent, contrary to law and good
customs, hence, can be prohibited from public viewing under Section 3(c) of PD 1986. This
ruling clearly suppresses petitioner’s freedom of speech and interferes with its right to free
exercise of religion. It misappreciates the essence of freedom to differ as delineated in the
benchmark case of Cantwell v. Connecticut,20 viz.:
xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In both
fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others
to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are prominent in church or state or even to false
statements. But the people of this nation have ordained in the light of history that inspite of
the probability of excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it
against an attack by another religion. Religious dogmas and beliefs are often at war and to
preserve peace among their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious
differences, the State enjoys no banquet of options. Neutrality alone is its fixed and
immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni
Cristo simply because it attacks other religions, even if said religion happens to be the most
numerous church in our country. In a State where there ought to be no difference between
the appearance and the reality of freedom of religion, the remedy against bad theology is
better theology. The bedrock of freedom of religion is freedom of thought and it is best served
by encouraging the marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech for it is the spark of
opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground “attacks against another religion” in
x-rating the religious program of petitioner. Even a sideglance at Section 3 of PD No. 1986 will
reveal that it is not among the grounds to justify an order prohibiting the broadcast of
petitioner’s television program. The ground “attack against another religion” was merely added
by the respondent Board in its Rules.21 This rule is void for it runs smack against the hoary
doctrine that administrative rules and regulations cannot expand the letter and spirit of the
law they seek to enforce.
It is opined that the respondent board can still utilize “attack against any religion” as a
ground allegedly “x x x because Section 3(c) of PD No. 1986 prohibits the showing of motion
pictures, television programs and publicity materials which are contrary to law and Article 201
(2) (b) (3) of the Revised Penal Code punishes anyone who exhibits “shows which offend any
race or religion.” We respectfully disagree for it is plain that the word “attack” is not
synonymous with the word “offend.” Moreover, Article 201 (2) (b) (3) of the Revised Penal
Code should be invoked to justify the subsequent punishment of a show which offends any
religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized that
E.O. 876, the law prior to PD 1986, included “attack against any religion” as a ground for
censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree to
disuse it. There can be no other intent. Indeed, even the Executive Department espouses this
view. Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of
the Senate, Neptali Gonzales explained:
“x x x
“However, the question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of Section 3,
paragraph (c) of PD 1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship, to wit:
‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people or with dangerous tendency to encourage, the
commission of violence, or of a wrong’ as determined by the Board, ‘applying contemporary
Filipino cultural values as standard.’ As stated, the intention of the Board to subject the INC’s
television program to ‘previewing and censorship is prompted by the fact that its religious
program’ makes mention of beliefs and practices of other religion.’ On the face of the law
itself, there can conceivably be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be within the contemplation of
the standards of censorship set by law.” (Emphasis supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear
and present danger rule. In American Bible Society v. City of Manila,22 this Court held: “The
constitutional guaranty of free exercise and enjoyment of religious profession and worship
carries with it the right to disseminate religious information. Any restraint of such right can be
justified like other restraints on freedom of expression on the ground that there is a clear and
present danger of any substantive evil which the State has the right to prevent.” In Victoriano
vs. Elizalde Rope Workers Union,23 we further ruled that “x x x it is only where it is
unavoidably necessary to prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be justified, and only to the
smallest extent necessary to avoid the danger.”
The records show that the decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against another religion. There is no
showing whatsoever of the type of harm the tapes will bring about especially the gravity and
imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the
case at bar. In the United States, it is true that the clear and present danger test has
undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck v.
US,24 as follows: “x x x the question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent.” Admittedly, the test
was originally designed to determine the latitude which should be given to speech that
espouses antigovernment action. Bannered by Justices Holmes and Brandeis, the test attained
its full flowering in the decade of the forties, when its umbrella was used to protect
speech other than subversive speech.25 Thus, for instance, the test was applied to annul a
total ban on labor picketing.26 The use of the test took a downswing in the 1950’s when the
US Supreme Court decided Dennis v. United States involving communist
conspiracy.27 In Dennis, the components of the test were altered as the High Court adopted
Judge Learned Hand’s formulation that “x x x in each case [courts] must ask whether the
gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger.” The imminence requirement of the test was thus diminished
and to that extent, the protection of the rule was weakened. In 1969, however, the strength
of the test was reinstated in Brandenburg v. Ohio,28 when the High Court restored in the test
the imminence requirement, and even added an intent requirement which according to a
noted commentator ensured that only speech directed at inciting lawlessness could be
punished.29 Presently in the United States, the clear and present danger test is not applied to
protect low value speeches such as obscene speech, commercial speech and defamation. Be
that as it may, the test is still applied to four types of speech:  speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and
release of information that endangers a fair trial.30 Hence, even following the drift of
American jurisprudence, there is reason to apply the clear and present danger test to the case
at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present danger test to the
case at bar because the issue involves the content of speech and not the time, place or
manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the evil apprehended cannot be
established. The contention overlooks the fact that the case at bar involves videotapes that
are pre-taped and hence, their speech content is known and not an X quantity. Given the
specific content of the speech, it is not unreasonable to assume that the respondent Board,
with its expertise, can determine whether its sulphur will bring about the substantive evil
feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that “x x x the determination of the
question as to whether or not such vilification, exaggeration or fabrication falls within or lies
outside the boundaries of protected speech or expression is a judicial function which cannot
be arrogated by an administrative body such as a Board of Censors.” He submits that a
“system of prior restraint may only be validly administered by judges and not left to
administrative agencies.” The same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction.
Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day.31 By 1965, the US Supreme Court in Freedman v.
Maryland32 was ready to hold that “the teaching of cases is that, because only a judicial
determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination suffices to impose a valid final
restraint.”33
While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview
and classify TV programs and enforce its decision subject to review by our courts. As far back
as 1921, we upheld this set-up in Sotto vs. Ruiz,34 viz.:
“The use of the mails by private persons is in the nature of a privilege which can be regulated
in order to avoid its abuse. Persons possess no absolute right to put into the mail anything
they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the mails, in
the exercise of executive power, is extremely delicate in nature and can only be justified
where the statute is unequivocably applicable to the supposed objectionable publication. In
excluding any publication for the mails, the object should be not to interfere with the freedom
of the press or with any other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of the law, since whether an
article is or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by the courts in
case he had abused his discretion or exceeded his authority.  (Ex parte Jackson [1878], 96
U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs.
Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and involves
the exercise of his judgment and discretion.  Every intendment of the laws is in favor of the
correctness of his action. The rule is (and we go only to those cases coming from the United
States Supreme Court and pertaining to the United States Postmaster-General), that the
courts will not interfere with the decision of the Director of Posts unless clearly of opinion that
it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs.
Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But
see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and
relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or
not courts alone are competent to decide whether speech is constitutionally protected.35 The
issue involves highly arguable policy considerations and can be better addressed by our
legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24,
1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review
petitioner’s TV program entitled “Ang Iglesia ni Cristo,” and is reversed and set aside insofar
as it sustained the action of the respondent MTRCB x-rating petitioner’s TV Program Series
Nos. 115, 119, and 121. No costs.
SO ORDERED.
     Regalado, Davide, Jr., Romero, Francisco and Torres, Jr., JJ., concur.
     Narvasa (C.J.), In the result.
     Padilla, J., See separate concurring and dissenting opinion.
     Bellosillo, J., On leave.
      Melo, J., Please see separate opinion.
     Vitug, J., Please see separate opinion.
     Kapunan, J., See dissenting opinion.
     Mendoza, J., Please see separate opinion.
     Hermosisima, Jr., J., I join the concurring and dissenting opinion of Justice Kapunan.
     Panganiban, J., Please see separate (concurring) opinion.
CONCURRING AND DISSENTING OPINION
PADILLA, J.:
I concur with the majority opinion insofar as it removes the ban against the showing of
petitioner’s TV Program Series Nos. 115, 119 and 121. However, I disagree with that part of
the majority opinion which upholds the power of respondent Board to subject to prior restraint
petitioner’s religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there
can be no prior restraints on the exercise of free speech, expression or religion , unless such
exercise poses a clear and present danger of a substantive evil which the State has the right
and even the duty to prevent. The ban against such prior restraints will result, as it has
resulted in the past, in occasional abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and expression than to arm a
governmental administrative agency with the authority to censor speech and expression in
accordance with legislative standards which albeit apparently laudable in their nature, can very
well be bent or stretched by such agency to convenient latitudes as to frustrate and eviscerate
the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression
and religion, is afforded, under our system, the remedy of redress in the courts of law, justice
and equity.
In short, it is far better for the individual to live in a climate of free speech and free
expression, devoid of prior restraints, even at the risk of occasional excesses of such freedoms
than to exist in an ambiance of censorship which is always a step closer to autocracy and
dictatorship.
CONCURRING AND DISSENTING OPINION
MELO, J.:
The enjoyment of the freedom of religion is always coupled with the freedom of expression.
For the profession of faith inevitably carries with it, as a necessary appendage, the prerogative
of propagation. The constitutional guaranty of free exercise and enjoyment of religious
profession and worship thus denotes the right to disseminate religious information ( American
Bible Society vs. City of Manila, 101 Phil. 386 [1957]). Any prior restriction upon a religious
expression would be a restriction on the right of religion. We recognize the role and the deep
influence that religion plays in our community. No less than the fundamental law of the land
acknowledges the elevating influence of religion by imploring the aid of almighty God to build
a just and humane society. Any restriction that is to be placed upon this right must be applied
with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established
religious organization has been well with us for almost a century, with several millions of
following, quite a number of imposing and elegantly constructed cathedrals and hundreds of
chapels spread in many parts of the country, injecting profound influence not only in the social
and political aspect of the community but upon its moral values as well. Respect must be
afforded a well-established church, especially on matters concerning morality and decency lest
no concept of morality could ever be accepted with deference. Such pre-eminence in the
community deserves no less than the confident expectation that it will act in accordance with
its avowed mission of promoting religious guidance and enlightenment. Its religious programs
must be accorded the presumption that the same will instill moral values that would be
beneficial to its adherents and followers, and perhaps to the community in general. The
contrary must not be presumed. Its television programs, therefore, should not be equated
with ordinary movies and television shows which MTRCB is bound by the law to monitor for
possible abuse. One must recognize the power of State to protect its citizenry from the danger
of immorality and indecency motivated by the selfish desire of media entrepreneurs to
accumulate more wealth, or of bogus religious groups, for that matter, to mislead and beguile
the unlettered and uninformed. But considering all these circumstances, I see no cogent
reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior
restriction on the exercise of the freedom to profess religious faith and the propagation
thereof will unduly diminish that religion’s authority to spread what it believes to be the sacred
truth. The State can exercise no power to restrict such right until the exercise thereof
traverses the point that will endanger the order of civil society. Thus we have ruled in the case
of Ebralinag vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom 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 the right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency
rule, which we have long abandoned, and for which reason, the dangerous tendency standard
under Subparagraph C, Section 3 of Presidential Decree No. 1986 has no place in our statute
books.
 I, therefore, vote to grant the petition.
CONCURRING AND DISSENTING OPINION
KAPUNAN, J.:
While I concur in the result of the majority’s decision reversing that of the Court of Appeals
insofar as it set aside the action of respondent MTRCB x-rating petitioner’s TV Program Series
Nos. 115, 119 and 121, with due respect, I cannot agree with its opinion that respondent
Board of Review for Motion Pictures and Television (now MTRCB) has the power to review
petitioner’s TV program “Ang Iglesia ni Cristo.” The religious TV program enjoys the
Constitution’s guarantee of freedom of religion,1 and of speech and expression,2 and cannot
be subject to prior restraint by the Board by virtue of its powers and functions under Section 3
of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions.—The BOARD shall have the following functions, powers and
duties:
x x x      x x x      x x x
. b)To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution, for television broadcast or for general viewing, imported or
produced in the Philippines, and in the latter case, whether they be for local viewing
or for export.
. c)To approve or disapprove, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:
. i)Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;
. ii)Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
. iii)Those which glorify criminals or condone crimes;
. iv)Those which serve no other purpose but to satisfy the market for violence and
pornography;
. v)Those which tend to abet the traffic in and use of prohibited drugs;
. vi)Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,
. vii)Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is
granted the power not only to classify, but also to approve or disapprove/prohibit exhibition of
film or television broadcasts of motion pictures and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise
clause of the Constitution. It encompasses a wide range of ideas and takes many forms. In
the process of enlightening the adherents or convincing non-believers of the truth of its
beliefs, a religious sect or denomination is allowed the free choice of utilizing various media,
including pulpit or podium, print, television, film, and the electronic mail. The broad latitude of
freedom afforded by the free exercise clause is an historic outgrowth of our country’s twin
colonial experiences: our forefathers’ aversion against the Spanish colonial government’s
interference with religious belief and practice and the transplantation of American
Constitutional thinking into the mainstream of our political life, which brought with it the ideas
of Protestant dissent and humanistic rationalism dominant in the debates of the American
Constitutional Convention. These two poles conjoined to place the individual conscience
beyond the coercive power of government. Involving as it does the relationship of man to his
Creator, respect for the inviolability of conscience lay at the core of the free exercise clauses in
our Constitutions from 1935 to 1987.3
It is, therefore, settled that religious freedom is a fundamental right entitled to the highest
priority and amplest protection among human rights. Because of its exalted position in our
hierarchy of civil rights, the realm of religious belief is generally insulated from state action,
and state interference with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right
to preach, proselyte and to perform other similar functions.4 As oftentimes these aspects of
the free exercise clause fall within areas affected by government regulation, the importance of
religious freedom is such that the state must make special provisions to relieve religious liberty
from restrictions imposed by generally legitimate government regulations.5 Commenting on
religious freedom and other freedoms of conscience, this Court held in Reyes v.
Bagatsing6 that:
[O]n 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 felicitously termed
by Justice Holmes “as the sovereign prerogative of judgment.” Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights.7
Even before film and television achieved the power and influence it has gained in the last few
decades, the U.S. Supreme Court, in the case of Burtsyn v. Wilson,8 conceded that movies
were a significant medium for the dissemination of ideas, affecting “public attitudes and
behavior in a variety of ways, ranging from the direct espousal of a political or social doctrine
to the subtle shaping of thought which characterizes artistic expression.”9 The U.S. Supreme
Court emphasized that the significance of motion pictures as an organ of public opinion is not
diluted by the fact that films are “designed to entertain as well as to inform,”10 thus,
recognizing that motion pictures fell within the sphere of constitutionally protected speech and
expression. Responding to the question of censorship in the context of film as protected
expression, the U.S. Supreme Court, in the case of Freedman v. Maryland11 held that:
The administration of a censorship system for motion pictures presents peculiar dangers to
constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding
puts the initial burden on the exhibitor or distributor. Because the censor’s business is to
censor, there is an inherent danger that he may be less responsive than a court—part of an
independent branch of government—to constitutionally protected interests in free
expression.12
In American Bible Society v. City of Manila ,13 this Court held that any restraint on the right to
disseminate religious information “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.”14 Affirming the use of this “clear and present
danger” standard in cases involving religious freedom and worship, the late Chief Justice
Claudio Teehankee warned that “[t]he sole justification for a prior restraint or limitation on the
exercise of religious freedom 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.”15
Religious freedom is not of course an absolute right. However, given its exalted position in
our hierarchy of civil rights, the essence of all that has been said and written about the subject
is that only those interests of the highest order and those not otherwise served can
overbalance claims to free exercise of religion.16 In a highly sensitive constitutional area, only
the gravest situation endangering paramount governmental interests give occasion for
permissible limitation. And even in such rare cases, government may justify an inroad into
religious liberty only by showing that it is the least restrictive means of achieving the
compelling state interest. A facially neutral regulation apparently evenhandedly applied to all
religious sects and denominations would be constitutionally suspect when it imposes an undue
burden on the exercise of religious freedom. “Rules are rules” is not by itself a sufficient
justification for infringing religious liberty.17
It is my submission that the government, under the guise of its regulatory powers in the
censorship law (P.D. 1986 and its corresponding implementing rules and regulations), does
not have the power to interfere with the exercise of religious expression in film or television by
requiring the submission of the video tapes of petitioner’s religious program before their public
viewing, absent a showing of a compelling state interest that overrides the constitutional
protection of the freedom of expression and worship. Even if government can demonstrate a
compelling state interest, it would only burden such fundamental right like the free exercise of
religion by the least intrusive means possible.18 There is no demonstration here of any
sufficient state interest to justify the infringement.
In any case, petitioner’s religious programs, which in their very essence and
characterization are the exercise of religious freedom, cannot possibly come under the
category of the objectionable matters enumerated in Section 3(c) of P.D. 1986 or analogous
thereto. It is not likely that propagation of religion which has been spoken of as “a profession
of faith that binds and elevates man to his Creator”19 will involve pornography, excessive
violence or danger to national security.
Significantly, the enumeration in Section 3(c) does not include the standard “attack against
any religion” as among those considered objectionable and subject to censorship.
Respondents justify this omission by stating that any form of expression “contrary to law”
could be subject to regulation because the enumeration is in any case not exclusive, and that
the phrase “contrary to law” should, in the Solicitor General’s words in behalf of respondents,
be construed “in relation to Article 201 of the Revised Penal Code which proscribes the
exhibition of shows that ‘offend any race or religion.’ ”20 Respondents moreover argue that
the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986 in any case explicitly
furnish the standard left out in the enumeration when it provides:
SECTION 4. GOVERNING STANDARD.—a) The BOARD shall judge the motion pictures and
television programs and publicity materials submitted to it for review, using as standard
contemporary Filipino cultural values to abate what are legally objectionable for being
immoral, indecent, contrary to law and good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime such as but not limited to:
xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; x x x.
There are several reasons why I cannot agree with respondent Board’s contention that it may
add the standard “attack against any religion” among those enumerated by P.D. 1986. While
the law’s enumeration is concededly not exclusive, inclusion of other standards should be
made in the strict context of the words “immoral, indecent, contrary to law and/or good
customs.” Specific standards following a general enumeration cannot go beyond the scope of
the latter.
In the first place, the word “indecent” in censorship law has a narrow meaning, confined to
obscenity regulation.21 It cannot be conveniently employed as a catch-all term embracing all
forms of expression considered noxious by the Board. On the other hand, “contrary to law,”
had particular significance in the old censorship laws because those laws explicitly included
anything “offensive to other religions” among their enumerated standards. In the light of what
the Solicitor General describes as the “transitional” nature of P.D. 1986, the better view would
be that the omission of “attack against any religion” among the enumerated standards was
intentional and part of the evolving process of fashioning a system of strict classification of
films and television programs as opposed to censorship. As this phrase was ubiquitous in the
old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses
the manifest intention of the law-making authority to do away with the standard. This view is
supported by the Executive Branch itself, through the Opinion of then Minister of Justice
Neptali Gonzales who stated, when the case came up before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject
television program of INC should be viewed in the light of the provision of Section 3,
paragraph (c) of P.D. 1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards for censorship, to wit:
‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with dangerous tendency to encourage the
commission of violence, or a wrong’ as determined by the Board, ‘applying contemporary
Filipino cultural values as standard.’ As stated, the intention of the Board to subject the INC’s
television program to ‘previewing and censorship is prompted by the fact that its religious
program makes mention of beliefs and practices of other religion.’ On the face of the law
itself, there can conceivably be no basis for censorship of said program by the Board asmuch
as the alleged reason cited by the Board does not appear to be within the contemplation of
the standards of censorship set by law.22
Additionally, the phrase “contrary to law” cannot and should not be understood to refer to
Article 20123 of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals
with the subject of subsequent punishment; P.D. 1986 clearly treats with an altogether
different matter—prior restraint and censorship. The two laws stand at opposite poles in the
continuum of regulation and punishment.
Thus, the censor’s cut poses a peculiar danger because it altogether skirts time-honored
judicial tests and standards utilized in determining those forms of expression that fall within
the area of protected speech or expression, and because, as between prior restraints and the
subsequent sanctions meted after proof of violation of specific penal statutes, the former
prevents the speech or expression from entering the marketplace of ideas.24 That is exactly
the effect of the orders assailed by petitioner in the instant case. More significantly, under the
specific facts and circumstances of the case confronting us, what is sought to be kept out of
the marketplace of ideas is not only ordinary speech or expression, two constitutional values
which already enjoy primacy among our civil rights, but also religious speech or expression
utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard
applicable to all religious sects and denominations. I cannot agree. The “neutrality” standard
has been raised in numerous free exercise cases before the courts, the most recent having
been the Flag Salute cases.25 However, a regulation neutral on its face poses free exercise
problems when it creates or has the potential of imposing undue burdens on religion.
“Democratic government acts to reinforce the generally accepted values of a given society and
not merely the fundamental ones which relate to its political structure.”26 Facially neutral
standards are a facet of prevailing consensus. The old flag salute cases are testaments to the
natural preference for the prevailing political and social morality over the religious liberty of
minorities. The prevalent view tends to impose its idea of what is religious and what is not
over and above the protests of the other religions, sects and denominations.27 Applying
“contemporary Filipino standards” and values (the general test in P.D. 1986) to religious
thought and expression allows an “overarching” into a constitutionally protected area and
potentially would simply provide the Board with a veiled excuse for clamping down against
unorthodox religious thought and expression. Measured in terms of the historic purpose of the
guarantee, the free exercise provision in our Constitution not only insulates religion against
governmental power, but when taken together with the Establishment clause, affords
protection to religious minorities by preventing the use of that power in imposing the
majority’s will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon
one of the most private and sensitive of domains: the realm of religious freedom, thought and
expression. In this domain, sharp differences may arise such that the tenets of one individual
may seem the “rankest error” to his neighbor.28 In the process of persuading others about
the validity of his point of view, the preacher sometimes resorts to exaggeration and
vilification. However, the determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the boundaries of protected speech or
expression is a judicial function which cannot be arrogated by an administrative body such as
a Board of Censors.29 Even if the exercise of the liberties protected by the speech, expression
and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there
are appropriate laws which deal with such excesses. The least restrictive alternative would be
to impose subsequent sanctions for proven violations of laws, rather than inflict prior restraints
on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards
damages whenever warranted. In our legal scheme, courts essentially remain the arbiters of
the controversies affecting the civil and political rights of persons. It is our courts which
determine whether or not certain forms of speech and expression have exceeded the bounds
of correctness, propriety or decency as to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech and expression and free exercise clauses are
so essential to our society that they should be allowed to flourish unobstructed and
unmolested.30
The majority opinion professes fealty to freedom of religion which, it openly admits, has
been accorded a preferred status by the framers of our fundamental laws, and affirms that
“(D)eeply ensconced in our fundamental law is its hostility against all prior restraints on
speech, including religious speech.”31 The majority then adds pointedly that “acts of prior
restraint are hobbled by the presumption of invalidity and should be greeted with furrowed
brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to
discharge this heavy burden, its acts of censorship will be struck down. It failed in the case at
bar.”32
And yet, the majority at the same time would grant MTRCB the power to review the TV
religious programs because “with its expertise,” it “can determine whether its sulphur will
bring about the substantive evil feared by the law.”33 The majority thus would uphold the
power of the Board as an administrative body with quasi-judicial power to preview and classify
TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it
was held that:
As has been said, the performance of the duty of determining whether a publication contains
printed matter of a libelous character rests with the Director of Posts and involves the exercise
of his judgment and discretion. Every intendment of the law is in favor of the correctness of
his action. The rule is (and we go only to those cases coming from the United States Supreme
Court and pertaining to the United States Postmaster-General), that the courts will not
interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza’s view that the majority’s pronouncement would in effect place
on the producer or exhibitor the burden of going to court and of showing that his film or
program is constitutionally protected. This throws overboard the fundamental tenet that any
act that restrains speech is presumed invalid and it is the burden of the censor to overthrow
this presumption. In the context of the present case, if the Board disapproves a TV religious
program or deletes a portion thereof, it is the exhibitor or producer who will go to court to
prove that the Board is wrong and the court will not interfere with the Board’s decision unless
it can be clearly shown that it is wrong, following the ruling in Sotto vs. Ruiz.
The majority’s ruling, I am afraid, constitutes a threat to constitutionally protected speech
and expression and supplants a judicial standard for determining constitutionally protected
speech and expression with the censor’s standard. The heavy burden on the imposition of
prior restraints is shifted away from the state by imposing upon the exhibitor the obligation of
proving that the religious programs fall within the realm of protected expression. This leaves
the exhibitor with only two unwanted options: either 1) he himself deletes the portions which
he anticipates the Board might possibly object to prior to submission to that body and thereby
obtains the censor’s nod, or 2) submits the Video tapes in their entirety and risks disapproval
or deletion, in which case he may go to court and show that the Video tapes contain
constitutionally protected speech and expression. In the first situation, the message loses its
essence and substance. The second scenario may entail tremendous amount of money, time
and effort in a prolonged litigation. Either case constitutes grievous assault on the freedom of
speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review
petitioner’s TV programs. In that case, the Court held that the Acting Director of the Bureau of
Posts is vested with authority to determine what mail matter is obscene, lewd, filthy or
libelous, pursuant to Section 1954 of the old Administrative Code which provides, among
others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or
carried by, the mails of the Philippine Island, or be delivered to its addressee by any officer or
employee of the Bureau of Posts. Petitioner’s programs which are televised in the exercise of
freedom of worship cannot be placed in the category of the printed matter proscribed in the
old Administrative Code. Freedom of worship is such a precious commodity in our hierarchy of
civil liberties that it cannot be derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special
place in our constellation of civil rights. The primacy our society accords these freedoms
determines the mode it chooses to regulate their expression. But the idea that an ordinary
statute or decree could, by its effects, nullify both the freedom of religion and the freedom of
expression puts an ominous gloss on these liberties. Censorship law as a means of regulation
and as a form of prior restraint is anathema to a society which places high significance to
these values.
WHEREFORE, premises considered, I vote to grant the petition.
SEPARATE OPINION
MENDOZA, J.:
I concur in the decision to allow the showing of certain video tapes of petitioner’s program,
“Ang Iglesia ni Cristo,” and for this purpose to reverse the contrary ruling of the Court of
Appeals. I am constrained to file this separate opinion, however, because, while the majority
opinion invokes general principles of free speech and religion to which I subscribe, it
regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules)
under which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed
only in a narrow class of cases involving pornography, excessive violence, and danger to
national security. Even in these cases, only courts can prohibit the showing of a film or the
broadcast of a program. In all other cases, the only remedy against speech which creates a
clear and present danger to public interests is through subsequent punishment. Considering
the potentiality for harm which motion pictures and TV programs may have especially on the
young, all materials may validly be required to be submitted for review before they may be
shown or broadcast. However, the final determination of the character of the materials cannot
be left to an administrative agency. That judicial review of administrative action is available
does not obviate the constitutional objection to censorship. For these reasons, I would hold
§3(b) of P.D. No. 1986, which gives to the Board limited time for review, to be valid, while
finding §3(c), under which the Board acted in this case in censoring petitioner’s materials, to
be, on its face and as applied, unconstitutional.
I. “At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship or punishment.
There is to be . . . no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings, unless there be a clear and present danger of substantive evil that Congress has
a right to prevent.”1 “Because of the preferred character of the constitutional rights of
freedom of speech and expression, a weighty presumption of invalidity vitiates measures of
prior restraint upon the exercise of such freedoms.”2
Authoritative interpretations of the free speech clause consider as invalid two types of prior
restraints, namely, those which are imposed prior to the dissemination of any matter and
those imposed prior to an adequate determination that the expression is not constitutionally
protected. As the Wisconsin Supreme Court put the matter, “[A] prohibited ‘prior restraint’ is
not limited to the suppression of a thing before it is released to the public. Rather, an invalid
prior restraint is an infringement upon the constitutional right to disseminate matters that are
ordinarily protected by the first amendment without there first being a judicial determination
that the material does not qualify for first amendment protection.”3
Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions
Pty. Ltd. v. Capulong,4 we held that an injunction stopping the production of a documentary
film was an invalid prior restraint on freedom of speech and of expression. In Mutuc v.
COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC rule prohibiting the
use in political campaigns of taped jingles blared through loudspeakers which were mounted
on mobile units. “[T]he constitutional guarantee is not to be emasculated by confining it to a
speaker having his say, but not perpetuating what is uttered by him through tape or other
mechanical contrivances.”6
On the other hand, the fact that the material may have seen print or been taped, as in the
case of the TV series in question, cannot justify restriction on its circulation in the absence of a
judicial determination that the material does not constitute protected expression. In Sotto v.
Ruiz,7 we denied finality to the authority of the Director of Posts to exclude newspapers and
other publications from the mails “since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action of the
Director of Posts must be subject to revision by the courts in case he has abused his discretion
or exceeded his authority.”8
II. P.D. No. 1986, §3(b) requires motion pictures, television programs and publicity
materials to be submitted to the Board for review, while §7 makes it unlawful for any person
or entity to exhibit or cause to be exhibited in any moviehouse, theater or public place or by
television any motion picture, television program or publicity material unless it has been
approved by the Board. Anyone who violates the prohibition is liable to prosecution and, in
case of conviction, to punishment by imprisonment ranging from 3 months and 1 day to 1
year, plus a fine of not less than P50,000.00 but not more than P100,000.00. In addition, the
moviehouse, theater or television station violating the provision faces a revocation of its
license.9
In Burstyn v. Wilson,10 it was held that expression by means of motion pictures—and, it
may be added, by means of television broadcasts—is included in the free speech and free
press guarantee of the Constitution. This ruling is now part of our constitutional law, which
has assimilated into the constitutional guarantee not only motion pictures but also radio and
television shows because of the importance of movie, radio and television both as a vehicle of
communication and as a medium of expression.11
Does §3(b) impermissibly impose a prior restraint because of its requirement that films and
TV programs must be submitted to the Board for review before they can be shown or
broadcast? In my view it does not. The Burstyn case, in declaring motion pictures to be
protected under the free expression clause, was careful to add: “It does not follow that the
Constitution requires absolute freedom to exhibit every motion picture of every kind at all
times and all places . . . . Nor does it follow that motion pictures are necessarily subject to the
precise rules governing any other particular method of expression. Each method tends to
present its own peculiar problems.”12 With reference to television, this Court is on record that
“a less liberal approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV] set.
Children then will likely be among the avid viewers of programs therein shown. . . . [T]he
State as parens patriae is called upon to manifest an attitude of caring for the welfare of the
young.”13
While newspapers may not be required to submit manuscripts for review as a condition for
their publication, except during wartime, such a requirement is justified when applied to
motion pictures or television programs (other than newsreels and commentaries) because of
unique considerations involved in their operation. “First, broadcast media have established a
uniquely pervasive presence in the lives of all citizens. Material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting
is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited
from making certain material available to children, but the same selectivity cannot be done in
radio or television, where the listener or viewer is constantly tuning in and out.”14 The State
may thus constitutionally require the advance submission of all films and TV programs as a
means of enabling it effectively to bar the showing of unprotected films and TV programs.15
For these reasons, I hold §3(b) to be a valid exercise of the State’s power to protect
legitimate public interests. The purpose of this restraint—temporary in character—is to allow
the Board time to screen materials and to seek an injunction from the courts against those
which it believes to be harmful.
III. I reach a different conclusion, however, with respect to §3(c). This provision
authorizes the Board to prohibit, among other things, the exhibition or broadcast of motion
pictures, television programs and publicity materials which, in its opinion, are “immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or [which have] a dangerous tendency to encourage the commission
of violence or of a wrong or crime,” such as the following:
. i)Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;
. ii)Those which tend to undermine the faith and confidence of the people in their
government and/or the duly constituted authorities;
. iii)Those which glorify criminals or condone crimes;
. iv)Those which serve no other purpose but to satisfy the market for violence or
pornography;
. v)Those which tend to abet the traffic in and use of prohibited drugs;
. vi)Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and
 . vii)Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what
cannot. It is not true, as the Board claims, that under P.D. No. 1986 its power is limited to the
classification of motion pictures and TV programs. The power to classify includes the power to
censor. The Board can x-rate films and TV programs and thus ban their public exhibition or
broadcast. And once it declares that a motion picture or television program is, for example,
indecent or contrary to law, as in the case of the INC program in question, its declaration
becomes the law. Unless the producer or exhibitor is willing to go to court, shouldering not
only the burden of showing that his movie or television program is constitutionally protected
but also the cost of litigation, the ban stays.16 This is censorship in its baldest form. This is
contrary to the fundamental tenet of our law that until and unless speech is found by the
courts to be unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV
program in question was disallowed pursuant to the rules of the Board which prohibit the
showing of motion pictures or TV programs containing “malicious attack[s] against any race,
creed or religion.” It is contended that this rule impermissibly broadens the prohibition in
§3(c), because this ground (“malicious attack[s] against any race, creed or religion”) is not
among those provided therein.
However, §3(c) gives the Board authority to stop the showing of motion pictures,
television programs and publicity materials which are “contrary to law,” and Art. 201(2) (b) (3)
of the Revised Penal Code makes it a crime for anyone to exhibit “shows which offend any
race or religion.” It is true that Art. 201(2) (b) (3) refers to subsequent punishment, whereas
we are dealing here with prior restraint. However, by authorizing the censorship of materials
which in the opinion of the Board are “contrary to law,” §3(c) makes what is only a ground for
subsequent punishment also a ground for prior restraint on expression. It is §3(c) of P.D. No.
1986, and not only the rules implementing it, which is unconstitutional.17
While I think the Board may be granted the power to preview materials, it is only for the
purpose of enabling the Board to decide whether to seek their prohibition by the court in the
interest of safeguarding morality, good order and public safety, considering the pervasive
influence of broadcast media compared to that of the print media. But concern with possible
deleterious effects of movies and television shows cannot and should not be allowed to
overshadow the equally important concern for freedom of expression and blind us to the
danger of leaving the ultimate determination of what expression is protected and what is not
to a board of censors. The protection of the youth should be in the first place the concern of
parents, schools and other institutions. I do not think that society is so morally impoverished
that we have to draw on a group of censors for ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts. 18 There
are many reasons why a system of prior restraint (in those cases where it may validly be
imposed) may only be administered by judges. First is that the censor’s bias is to censor.
Second is that “only a judicial determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression.”19 As has been observed, “Central to the first
amendment due process is the notion that a judicial rather than an administrative
determination of the character of the speech is necessary. . . . [C]ourts alone are competent
to decide whether speech is constitutionally protected.”20 Third, the members of the Board do
not have the security of tenure and of fiscal autonomy necessary to secure their
independence. Indeed, I cannot understand why, after ruling that the valuation of property in
eminent domain is essentially a judicial function which cannot be vested in administrative
agencies,21 this Court should be willing to leave the valuation of that priceless commodity—
expression, whether by means of motion picture or television—to administrative agencies with
only occasional review by the courts. The trend may be toward greater delegation of judicial
authority to administrative agencies in matters requiring technical knowledge and as a means
of relieving courts of cases which such agencies can very well attend to.22 There is no
justification, however, for such delegation in the area of our essential freedoms, particularly
freedom of expression, where “only a judicial determination in an adversary proceeding [can]
ensure the necessary sensitivity to freedom of expression.”23
We have witnessed such distinct possibility in the past to need any more lesson in the
future to make us realize the danger of leaving freedom of expression and religion—the
essential freedom of the mind—in the care of an administrative agency.
To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to
determine whether expression by motion picture or television is constitutionally protected, I
find it unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board’s
finding that the video tapes in question contain attacks on the Catholic religion. I find it
difficult to pass upon this question because the contents of the tapes are not in the record of
this case.24 The trial court ruled that the tapes contain no attack against any religion but only
a discussion of the doctrines which the Iglesia Ni Cristo believes embody “superior and self
evident truth.” On the other hand, the Court of Appeals, in reversing the trial court, found that
the tapes “offend by verbal abuse other religions” and are for that reason “indecent and
contrary to good customs” within the meaning of P.D. No. 1986, §3(c). Neither court,
however, had any evidence to support its conclusions, because this case was submitted by the
parties solely on the basis of memoranda. What the majority of this Court call facts (pp. 16-
17) are simply the opinions of members of the Board that the video tapes contain attacks on
the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear
and present danger test is inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court
said:
[W]here the movies, theatrical, productions, radio scripts, television programs, and other such
media of expression are concerned—included as they are in freedom of expression—
censorship, especially so if an entire production is banned, is allowable only under the clearest
proof of a clear and present danger of a substantive evil to public safety, public morals, public
health or any other legitimate public interest.25
The clear and present danger test has been devised for use in criminal prosecutions for
violations of laws punishing certain types of utterances.26 While the test has been applied to
the regulation of the use of streets and parks27—surely a form of prior restraint—its use in
such context of the speech is not the issue. But when the regulation concerns not the time,
place or manner of speech but its content (i.e., it is content—based) the clear and present
danger test simply cannot be applied. This is because a determination whether an utterance
has created a clear and present danger to public interests requires a factual record.
The test itself states that the question in every case is “whether the words used are used
in such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evil that Congress has a right to prevent.”28 However it
may have been reformulated in later cases, the test essentially requires that the causal
connection between the speech and the evil apprehended be evident.29 But how can this be
shown unless the speech is first allowed? It is not enough that the tapes have been made and
only their broadcast banned. What about the audience reaction to the tapes? Even if we know
what the tapes in this case contain, we cannot determine whether their public broadcast
would create a clear and present danger to public interests. The censorship board, trying to
determine whether to issue a permit, must necessarily speculate on the impact which the
words will have since the context in which they will be uttered—the audience, the occasion,
and the place—is totally lacking in the record. It is then forced to apply a lesser standard of
proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board
in this case exceeded its powers in disallowing the TV series in question. They argue that “acts
of prior restraint are hobbled by the presumption of invalidity and should be greeted with
furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it
fails to discharge this heavy burden, its act of censorship will be struck down. . . . In the case
at bar, respondent board did nothing to rebut the presumption.” (p. 17).
That, however, is precisely the problem with the censorship law. It in effect places on the
producer or exhibitor the burden of going to court and of showing that his film or program is
constitutionally protected. To paraphrase Sotto v. Ruiz, which the majority cite as authority for
sustaining the validity of §3(c), “Every intendment of the law is in favor of the correctness of
[the agency’s] action.”30 The Board would have this burden of justification if, as I believe it
should, it is made to go to court instead and justify the banning of a film or TV program. That
is why §3(c) should be invalidated. One cannot defend the validity of the law and at the same
time contend that in any court proceeding for the review of the Board’s decision the burden of
justifying the ban should be on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard
for judging the validity of prior restraint on political expression is stricter than that for
adjudging restraints on materials alleged to be obscene, but not that the test of clear and
present danger is applicable in determining whether or not a permit may be granted.
—————
In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas’s plea that “every writer,
actor, or producer, no matter what medium of expression he may use, should be freed from
the censor.” For indeed the full flowering of local artistic talents and the development of the
national intelligence can take place only in a climate of free expression. A film producer, faced
with the prospect of losing on his investment as a result of the banning of his movie
production, may well find himself compelled to submit to the wishes of the Board or practice
self-censorship. The expression of unpopular opinions, whether religious, political or otherwise
is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same
with the control on broadcast media, which for so long has operated under
restraints,32 leaving the punishment for violations of laws to be dealt with by subsequent
prosecution.
For the foregoing reasons, I vote to declare §3(c) of P.D. No. 1986 unconstitutional and to
reverse the decision of the Court of Appeals, except in so far as it sustains the grant of power
to the Board to preview materials for showing or broadcast, consistent with my view that
§3(b) is valid.
SEPARATE (CONCURRING) OPINION
PANGANIBAN, J.:
I think the basic issues in this case are:
. A.What is the statutory extent and the constitutional limitation of the powers of the
Movies and Television Review and Classification Board (MTRCB)? More specifically,
does the MTRCB have the power to prohibit/censor television shows?
. B.In banning the television showing of the Iglesia ni Cristo videotape series, did the
respondent Board exercise its powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions
and prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific
act of the Board in classifying as “X” (or not for public viewing) specific pre-taped or canned
programs, identified as Series 115, 119, 121 and 128, for the reason that they allegedly
constituted an “attack against another religion.” The first involves doctrine; the second,
application.
A. EXTENT AND LIMIT OF MTRCB’S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D. 1986.1In implementing P.D.
1986, the MTRCB issued its own Rules and Regulations. At issue in this case is Section 42 of
such Rules.
 On the other hand, these statutory powers and internally generated regulations are limited
by the Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and
religion.3
Mr. Justice Mendoza connects the above constitutional rights with the present controversy
by saying that “expression x x x by means of television broadcast is included in the free
speech and free press guarantee of the Constitution” and by Mr. Justice Kapunan by writing
that this “case uniquely interphases questions of religious expression and censorship laws in
the context of the constitution’s guarantees of freedom of religion and of speech and
expression.”
Here before us therefore is a classic constitutional law case wherein the inherent power of
the state to safeguard the peace, well-being and general welfare of the people collide and
clash with the constitutional rights of individuals and religious institutions to evangelize,
preach, promote, teach, and even proselytize.
Religious Freedom—A Cherished Right
First. I agree with the ponencia that “(f)reedom of religion has been accorded a preferred
status by the framers of our fundamental laws, past and present.” Religious freedom is
absolute when it is confined within the realm of thought to a private, personal relationship
between a man’s conscience and his God, but it is subject to regulation when religious belief is
transformed into external acts that affect or afflict others. The mere invocation of religious
freedom will not stalemate the State and ipso facto render it incompetent in preserving the
rights of others and in protecting the general welfare.
MTRCB’s Power to Review and to Censor is Valid
Second. I believe that as an agency of the State created to promote the general welfare, the
MTRCB under P.D. 1986 has the basic initiatory authority and power to—
“approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast” of pre-taped or canned (as contra-distinguished from “live”)
video-audio/film/television programs and publicity materials. I regret I cannot go along with
Mr. Justice Mendoza’s avante garde thesis that Section 3-c of P.D. 1986, from where the
above-quoted words were taken, is “upon its face and as applied, unconstitutional.” I note the
extensive materials, particularly from American cases, buttressing his cogent stand, but, after
reflection, prayer and discernment, I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu, is far different from that in
America.
Petitioner INC contends that the MTRCB’s authority extends only to non-religious video
materials but not to religious programs, particularly those of INC, which it claims are neither
“immoral” nor “indecent.” This position presents more problems than solutions. For who will
determine whether a given canned material is religious or not, and therefore whether it can be
publicly exhibited or not without its passing through the Board? I would prefer that the State,
which is constitutionally mandated to be neutral, continue to exercise the power to make such
determination, rather than leave it up to the producer, maker or exhibitor of such material,
who/which, because of vested interests would, in the normal course, be understandably
biased in his/its own favor. I feel less discomfort with the idea of maintaining the censors’
quasi-judicial authority to review such film materials, subject to appeal to the proper courts by
aggrieved parties, than with the prospect and consequences of doing away with such power
altogether. I agree with Mr. Justice Vitug in finding “it more prudent to have a deferment of
an exhibition that may be perceived (by the Board) to be contrary to decency, morality, good
custom or the law until, at least, the courts are given an opportunity to pass upon the matter
x x x.” A contrary ruling would most regrettably remove meaningful and necessary safeguards
against a veritable floodtide of prurient, violence-prone and values-eroding television shows
and programs.
In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans,
Jr.,5 this Court early on acknowledged the uniquely pervasive presence of broadcast and
electronic media in the lives of everyone, and the easy accessibility of television and radio to
just about anyone, especially children.
Everyone is susceptible to their influence, even “the indifferent or unwilling who happen to be
within reach of a blaring radio or television set.”6 And these audiences have less opportunity
to cogitate, analyze and reject the utterances, compared to readers of printed material.7 It is
precisely because the State as parens patriae is “called upon to manifest an attitude of caring
for the welfare of the young”8 that I vote for the retention of the State’s power of review and
prohibition via the MTRCB. High-minded idealism in the staunch defense of the much-vaunted
freedoms cannot but be admired. Yet, no matter how devoutly we may wish it, not all the
people share the same mindset and views nor, needless to say, the same viewpoint, i.e., the
ivory tower window. Hence, we must prudently anticipate that abuses against the public weal
are likely to be committed where absolute permissiveness is the norm. Would that, with the
total absence of censorship or review, there occur a significant increase in religious, spiritual
or morally uplifting prime-time programming! But realistically and pragmatically speaking, we
see mostly the prospect of more explicit sex-oriented advertising, unadulterated violence and
outright pandering to phone-sex addicts and the simply curious. The fact that even the Net is
not free of pornographic slime is no excuse to let down all reasonable barriers against
broadcast media offerings of muck, moral depravity and mayhem. And definitely, there is no
good and sensible reason for the State to abdicate its vital role as parens patriae, in the guise
of copying American constitutional precedents, which I respectfully submit, are inapplicable in
our factual context and time.
MTRCB Must Use Constitutional Standard.
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must
act prudently. And it can do so ONLY if it exercises its powers of review and prohibition
according to a standard and/or a limit.
I believe that the phrase “with a dangerous tendency” in Sec. 3-c of P.D. 1986 should be
struck down as an unconstitutional standard. This is martial law vintage and should be
replaced with the more libertarian “clear and present danger rule” which is eloquently
explained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall not repeat here).
Having said that, may I respectfully point out however that there is an even more
appropriate standard in the Philippine context proffered by the law itself, and that is
“contemporary Philippine cultural values.” This standard under the law, should be used in
determining whether a film or video program is “(a) immoral, (b) indecent, (c) contrary to law
and/or good customs, and (d) injurious to the prestige of the Republic of the Philippines or its
people.” On the other hand, when the question is whether the material being reviewed
“encourages the commission of violence or of a wrong or crime” per the enumeration
contained in Sec. 3-c, the “clear and present danger” principle should be applied as the
standard in place of the “dangerous tendency” rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang,
pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa, damdamin, dangal,
kapwa, pakikitungo, hiya, delikadesa, awa, tiwala, makaDiyos, maka-tao, maka-buhay  and so
forth, define us as a people, as Filipinos. We are who and what we are because of these
values and ideals. They delimit the areas of individual and social behavior and conduct
deemed acceptable or tolerable, and ultimately they determine the way we as individuals
uniquely conduct our relationships and express ourselves. According to Mr. Justice Kapunan,
applying contemporary Filipino values to religious thought and expression will permit an
“overarching” into a constitutionally protected area, and provides the MTRCB with a veiled
excuse for clamping down against unorthodox religious thought and expression. But such fear
is highly speculative and totally unsupported by empirical evidence. I would like to add that
where a mode of religious expression runs counter to such core values, serious questions have
to be raised about the ultimate redeeming worth of such expression. An example is in order.
Not too long ago, the so-called “Children of God” blew into town, and, under the guise of
proselytizing, practised “flirty-fishing” (free sex). I wonder how many of us will simply sit on
our hands if these “Children” were to telecast their religious programs for OUR children to
watch, or conduct seminars over the airwaves on the hows of free sex . . . Another example:
satanic cults involve blood sacrifices . . . In brief, I am in agreement with the ponencia that
the practice of religion cannot be totally abandoned to the market place and governed by the
policy of laissez faire.
Validity of MTRCB’s Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board’s Rules and Regulations authorizing MTRCB
to prohibit the showing of materials “which clearly constitute an attack against any race, creed
or religion x x x,” I agree with Mr. Justice Vitug that the phrase “contrary to law” in Sec. 3-c
“should be read together with other existing laws such as, for instance, the provisions of the
Revised Penal Code, particularly Article 201, which prohibit the exhibition of shows that ‘offend
another race or religion.’ ” Indeed, where it can be shown that there is a clear and present
danger that a religious program could agitate or spark a religious strife of such extent and
magnitude as to be injurious to the general welfare, the Board may “X-rate” it or delete such
portions as may reasonably be necessary. The debilitating armed conflicts in Bosnia, Northern
Ireland and in some Middle East countries due to exacerbated religious antagonisms should be
enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of
murder in the name of public welfare, why should the prevention of a crime punishable by Art.
201 of the Penal Code be any less legal and less praiseworthy?
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans
shows which “attack” a religion, whereas Art. 201 merely penalizes those who exhibit
programs which “offend” such religion. Subject to changing the word “attack” with the more
accurate “offend,” I believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the
substitution (or interpretation) of the words “dangerous tendency” with the phrase (or as
meaning) “clear and present danger” in Sec. 3-c; and (2) that Sec. 4 of the Board’s Rules
would be likewise valid, provided the words “constitute an attack” are changed with “offend.”
B. WAS THE BANNING OF THE IGLESIA PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3
of P.D. 1986 in prohibiting the public telecasting of the Iglesia program? In short, did the INC
series “offend” a religion? Juridically stated, did the respondent MTRCB use “contemporary
Filipino cultural values” in determining that said series offended another religion such as to
constitute a clear and present danger of a religious strife which is injurious to public welfare?
[Note: I advisedly used both the “values” and “clear and present,” standards in framing the
question because the INC program was apparently “x-rated” for being both “contrary to law”
and violative of Art. 201, a “crime.”]
Unfortunately, we cannot answer this question directly because the tape in question was
never submitted to the Court for viewing. Neither was there a detailed description of its
objectionable contents in the assailed Decision of the Court of Appeals or Regional Trial Court.
Nor is there extant a detailed justification prepared by respondent Board on why it banned the
program—other than its bare conclusion that the material constituted an attack against the
Catholic and Protestant religions.
In no wise can the “remarks” in the voting slips presented before the trial court be
considered sufficient justification for banning the showing of any material.
 In the face of such inadequacy of evidence and basis, I see no way that this Court could
authorize a suppression of a species of the freedom of speech on the say-so of anyone—not
even of the MTRCB. Paraphrasing People vs. Fernando,9 the disputable presumption (which is
of statutory origin) that official duties have been regularly performed must yield to the
constitutionally enshrined freedoms of expression and of religion. If courts are required to
state the factual and legal bases of their conclusions and judicial dispositions, with more
reason must quasi-judicial officers such as censors, especially when they curtail a fundamental
right which is “entitled to the highest priority and amplest protection.”
When I particularly ponder on the magnitude of the power of a television set, I find it
more prudent to have a deferment of an exhibition that may be perceived to be contrary to
decency, morality, good customs or the law until, at least, the courts are given an opportunity
to pass upon the matter than rely merely on the availability of retribution for actual injury
sustained. A delay is not too high a price to pay for a possible damage to society that may well
turn out to be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to Judgment sustaining jurisdiction of MTRCB over petitioner’s TV program affirmed while
justify its conclusion thru the use of the proper standards that the tapes in question offended reversed and set aside as to the x-rating of said program.
another religion, I vote to GRANT the petition insofar as it prays for the showing of said
programs. However, I vote to DENY the petition insofar as allowing the INC to show its
Note.—Even the exercise of religion may be regulated at some slight inconvenience in
pretaped programs without first submitting them for review by the MTRCB.
order that the State may protect its citizens from injury. ( Centeno vs. Villalon-Pornillos, 236
SCRA 197 [1994])
SEPARATE OPINION
——o0o——
VITUG, J.:
594
I agree with those who support the view that religious freedom occupies an exalted position in
our hierarchy of rights and that the freedom to disseminate religious information is a
constitutionally-sanctioned prerogative that allows any legitimate religious denomination a free
choice of media in the propagation of its credo. Like any other right, however, the exercise of
religious belief is not without inherent and statutory limitations. The Board disapproved the
exhibition of a series of television programs of petitioner on the ground that they tend to
“offend and constitute an attack against other religions.” An opinion has been expressed that
the non-inclusion in Section 3 of P.D. 1986 of an “attack against any religion,” as a standard
for classification, and so the deletion of the phrase “offensive to other religions” found in the
old censorship law (Executive Order No. 876), should be clear enough to manifest a legislative
intent “to do away with the standard.” A reading of Section 3 of P.D. 1986 shows that the
Board is empowered to “screen, review and examine all x x x television programs” and to
“approve or disprove, delete objectionable portion from and/or prohibit the x x x television
broadcast of x x x television programs x x x which, in the judgment of the BOARD (so)
applying contemporary Filipino cultural values as standard, are objectionable for being
immoral, indecent, contrary to law and/or good customs x x x.” I believe that the phrase
“contrary to law” should be read together with other existing laws such as, for instance, the
provisions of the Revised Penal Code, particularly Article 201, which prohibits the exhibition of
shows that “offend another race or religion.” I see in this provision a good and sound
standard. Recent events indicate recurrent violent incidents between and among communities
with diverse religious beliefs and dogma. The danger is past mere apprehension; it has
become a virtual reality and now prevalent in some parts of the world.

In order not to infringe constitutional principles, any restriction by the Board must, of
course, be for legitimate and valid reasons. I certainly do not think that prior censorship
should altogether be rejected just because sanctions can later be imposed. Regulating the
exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and secure
that right.
 A.M. No. P-02-1651. June 22, 2006.* clauses—the first is the standard of separation, which may take the form of either (a) strict
(Formerly OCA I.P.I. No. 00-1021-P) separation or (b) the tamer version of strict neutrality or separation, and, the second
standard, the benevolent neutrality or accommodation. —U.S. history has produced two
identifiably different, even opposing, strains of jurisprudence on the religion clauses. First is
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.
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
Actions; Judgments; Law of the Case; The issues which have already been ruled upon
second theory of governmental neutrality. Although the latter form is not as hostile to religion
prior to the remand of a case constitute “the law of the case” insofar as they resolved the
as the former, both are anchored on the Jeffersonian premise that a “wall of separation” must
issues of which framework and test are to be applied in this case, and no motion for its
exist between the state and the Church to protect the state from the church. Both protect the
reconsideration having been filed.—It bears stressing, therefore, that the residual issues of the
principle of church-state separation with a rigid reading of the principle. On the other hand,
case pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE
the second standard, the benevolent neutrality or accommodation, is buttressed by the view
RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF
that the wall of separation is meant to protect the church from the state. A brief review of
EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled upon
each theory is in order.
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
Same; Same; Same; Strict Separation; Words and Phrases; The Strict Separationist
having been filed. The only task that the Court is left to do is to determine whether the
believes that the Establishment Clause was meant to protect the state from the church, and
evidence adduced by the State proves its more compelling interest. This issue involves a pure
the state’s hostility towards religion allows no interaction between the two.—The Strict
question of fact.
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.
Same; Same; Same; Due Process; Since neither the complainant, respondent nor the
According to this Jeffersonian view, an absolute barrier to formal interdependence of religion
government has filed a motion for reconsideration assailing the ruling in this case, the same
and state needs to be erected. Religious institutions could not receive aid, whether direct or
has attained finality and constitutes the law of the case—any attempt to reopen this final
indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens
ruling constitutes a crass contravention of elementary rules of procedure, and insofar as it
the programs placed on believers. Only the complete separation of religion from politics would
would overturn the parties’ right to rely upon the Court’s interpretation which has long
eliminate the formal influence of religious institutions and provide for a free choice among
attained finality, it also runs counter to substantive due process. —Mr. Justice Carpio’s
political views, thus a strict “wall of separation” is necessary.
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
Same; Same; Same; Same; Unlike the strict separationists, the strict neutrality view,
neither the complainant, respondent nor the government has filed a motion for
which is a tamer version of the strict separationist view, believes that the “wall of separation”
reconsideration assailing this ruling, the same has attained finality and constitutes the law of
does not require the state to be their adversary—rather, the state must be neutral in its
the case. Any attempt to reopen this final ruling constitutes a crass contravention of
relations with groups of religious believers and non-believers. “State power is no more to be
elementary rules of procedure. Worse, insofar as it would overturn the parties’ right to rely
used so as to handicap religions than it is to favor them.” —The tamer version of the strict
upon our interpretation which has long attained finality, it also runs counter to substantive due
separationist view, the strict neutrality or separationist view, (or, the governmental
process.
neutrality theory) finds basis in Everson v. Board of Education, 330 U.S. 1 (1946), where the
Court declared that Jefferson’s “wall of separation” encapsulated the meaning of the First
Constitutional Law; Freedom of Religion; Free Exercise Clause and Establishment
Amendment. However, unlike the strict separationists , the strict neutrality view believes that
Clause; Words and Phrases; In simplest terms, the Free Exercise Clause prohibits government
the “wall of separation” does not require the state to be their adversary. Rather, the state
from inhibiting religious beliefs with penalties for religious beliefs and practice, while the
must be neutral in its relations with groups of religious believers and non-believers. “State
Establishment Clause prohibits government from inhibiting religious belief with rewards for
power is no more to be used so as to handicap religions than it is to favor them.” The strict
religious beliefs and practices.—The Establishment and Free Exercise Clauses, it should be
neutrality approach is not hostile to religion, but it is strict in holding that religion may not be
noted, were not designed to serve contradictory purposes. They have a single goal—to
used as a basis for classification for purposes of governmental action, whether the action
promote freedom of individual religious beliefs and practices. In simplest terms, the Free
confers rights or privileges or imposes duties or obligations. Only secular criteria may be the
Exercise Clause prohibits government from inhibiting religious beliefs with penalties for
basis of government action. It does not permit, much less require, accommodation of secular
religious beliefs and practice, while the Establishment Clause prohibits government from
programs to religious belief.
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
Same; Same; Same; Same; The problem with the strict neutrality approach, however, is
the stick to influence individual religious beliefs and practices.
if applied in interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause.—The problem with the strict neutrality
Same; Same; Strains of U.S. Jurisprudence on the Religion Clauses; U.S. history has
approach, however, is if applied in interpreting the Establishment Clause, it could lead to a de
produced two identifiably different, even opposing, strains of jurisprudence on the religion
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 , 374 U.S. 203
(1963), 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.
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.
Same; Same; Same; Benevolent Neutrality or Accommodation; Words and Phrases; The
theory of benevolent neutrality or accommodation is premised on a different view of the “wall
of separation,” in that, 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 .—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. 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.
Same; Same; Same; Same; 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; 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.—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.” In the ideal world, the legislature would recognize
the religions and their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that are threatened and
burdened may turn to the courts for protection. 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. 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.
Same; Same; 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 constitutions. —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 constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax
exemption of church property, salary of religious officers in government institutions, and
optional religious instruction. Our own preamble also invokes the aid of a divine being. 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.
Same; Same; Benevolent Neutrality-Accommodation Standard; It is indubitable that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution—our own Constitutions have made
significant changes to accommodate and exempt religion.—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. 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.
Same; Same; Same; The Constitution itself mandates the Court to make exemptions as
in Ebralinag v. Division Superintendent of Schools, 219 SCRA 256 (1993), and the American
Bible Society v. City of Manila, 101 Phil. 386 (1957), in cases involving criminal laws of general
application. —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.
Same; Same; Same; Freedom of Speech; 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. —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. 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.
Same; Same; Same; 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; 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—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 for this
precisely is the protection afforded by the religion clauses of the Constitution; 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.—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. As stated in the Decision: x x x
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.
Same; Same; Same; A look at the evidence that the Office of the Solicitor General
(OSG) has presented fails to demonstrate “the gravest abuses, endangering paramount
interests” which could limit or override respondent Escritor’s fundamental right to religious
freedom, and 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.—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. 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.
Same; Same; Same; 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; 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. —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.  This, the Solicitor General failed to
do.
 Same; Same; Same; 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.—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 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.
Same; Same; Same; Bill of Rights; 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).—The government’s conduct may appear innocent and nondis-criminatory 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).
Same; Same; The records are bereft of even a feeble attempt to procure any evidence
to show that the means the state adopted in pursuing this compelling interest is the least
restrictive to respondent Escritor’s religious freedom—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.—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. 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.
YNARES-SANTIAGO, J., Dissenting:
Freedom of Religion; Public Officers; Civil Service; Disgraceful and Immoral
Conduct; The degree of morality required of every employee or official in the public service
has been consistently high, and the rules are particularly strict when the respondent is a
Judge or a court employee.—The issue in this case is simple. What is the meaning or standard
of “disgraceful and immoral conduct” to be applied by the Supreme Court in disciplinary cases
involving court personnel? The degree of morality required of every employee or official in the
public service has been consistently high. The rules are particularly strict when the respondent
is a Judge or a court employee. Even where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no untoward conduct involving public
officers should be left without proper and commensurate sanction. The compassion is shown
through relatively light penalties. Never, however, has this Court justified, condoned, or
blessed the continuation of an adulterous or illicit relationship such as the one in this case,
after the same has been brought to its attention.
Same; Same; Same; Same; Those who choose to tolerate the situation where a man
and a woman separated from their legitimate spouses and decide to live together in an “ideal”
and yet unlawful union state—or more specifically, those who argue that respondent Escritor’s
cohabiting with a man married to another woman is not something which is willful, flagrant, or
shameless—show a moral indifference to the opinion of the good and respectable members of
the community in a manner prejudicial to the public service.—Anything plainly evil or dissolute
is, of course, unchangingly immoral. However, at the fringes or boundary limits of what is
morally acceptable and what is unacceptably wrong, the concept of immorality tends to shift
according to circumstances of time, person, and place. When a case involving the concept of
immorality comes to court, the applicable provisions of law and jurisprudence take center
stage. Those who choose to tolerate the situation where a man and a woman separated from
their legitimate spouses decide to live together in an “ideal” and yet unlawful union state—or
more specifically, those who argue that respondent’s cohabiting with a man married to
another woman is not something which is willful, flagrant, or shameless—show a moral
indifference to the opinion of the good and respectable members of the community in a
manner prejudicial to the public service.
Same; Same; Same; Same; The issue in this case is legal and not philosophical—is
respondent Escritor guilty of “disgraceful and immoral” conduct in the context of the Civil
Service Law?—Insofar as concepts of morality are concerned, various individuals or cultures
may indeed differ. In certain countries, a woman who does not cover herself with
a burka from head to foot may be arrested for immoral behavior. In other countries, near
nudity in beaches passes by unnoticed. In the present case, the perceived fixation of our
society over sex is criticized. The lesser degree of condemnation on the sins of laziness,
gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory. The issue in
this case is legal and not philosophical. It is a limited one. Is respondent Soledad S. Escritor
guilty of “disgraceful and immoral” conduct in the context of the Civil Service Law? Are there
any sanctions that must be imposed? We cannot overlook the fact that respondent Escritor
would have been convicted for a criminal offense if the offended party had been inclined and
justified to prosecute her prior to his death in 1998. Even now, she is a co-principal in the
crime of concubinage. A married woman who has sexual intercourse with a man not her
husband, and the man who has carnal knowledge of her knowing her to be married, commit
the crime of adultery. Abandonment by the legal husband without justification does not
exculpate the offender; it merely mitigates the penalty.
Same; Same; Same; Same; I do not think the Court is ready to render a precedent-
setting decision to the effect that, under exceptional circumstances, employees of the judiciary
may live in a relationship of adultery or concubinage with no fear of any penalty or sanction
and that after being discovered and charged, they may continue the adulterous relationship
until death ends it.—Our existing rule is that an act so corrupt or false as to constitute a
criminal act is “grossly immoral.” It is not merely “immoral.” Respondent now asks the Court
to go all the way to the opposite extreme and condone her illicit relations with not even an
admonition or a slight tap on the wrist. I do not think the Court is ready to render a
precedent-setting decision to the effect that, under exceptional circumstances, employees of
the judiciary may live in a relationship of adultery or concubinage with no fear of any penalty
or sanction and that after being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is not limited to court
interpreter Soledad Escritor. It is not a pro hac vice ruling. It applies to court employees all
over the country and to everybody in the civil service. It is not a private ruling but one which
is public and far-reaching in its consequences.
Same; Same; Same; Same; Times are changing—illicit sex is now looked upon more
kindly but we should not completely disregard or overlook a relationship of adultery or
concubinage involving a court employee and not order it to be terminated. —Times are
changing. Illicit sex is now looked upon more kindly. However, we should not completely
disregard or overlook a relationship of adultery or concubinage involving a court employee and
not order it to be terminated. It should not ignore what people will say about our moral
standards and how a permissive approach will be used by other court employees to freely
engage in similarly illicit relationship with no fear of disciplinary punishment. As earlier
mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing marriages with their
respective legitimate spouses when they decided to live together. To give an aura of regularity
and respectability to what was undeniably an adulterous and, therefore, immoral relationship,
the two decided to acquire through a religious ceremony what they could not accomplish
legally. They executed on July 28, 1991 the “Declaration of Pledging Faithfulness” to make
their relationship what they alleged it would be—a binding tie before Jehovah God.
Same; Same; Same; Same; We must be concerned not with the dogmas or rules of any
church or religious sect but with the legal effects under the Civil Service Law of an illicit or
adulterous relationship characterized by the facts of this case.—In this case, respondent is
charged not as a Jehovah’s Witness but in her capacity as a court employee. It is contended
that respected elders of the Jehovah’s Witnesses sanction “an informal conjugal relationship”
between respondent and her marital partner for more than two decades, provided it is
characterized by faithfulness and devotion to one another. However, the “informal conjugal
relationship” is not between two single and otherwise eligible persons where all that is missing
is a valid wedding ceremony. The two persons who started to live together in an ostensible
marital relationship are married to other persons. We must be concerned not with the dogmas
or rules of any church or religious sect but with the legal effects under the Civil Service Law of
an illicit or adulterous relationship characterized by the facts of this case. There is no conflict
in this case between the dogmas or doctrines of the Roman Catholic Church and those of the
Jehovah’s Witnesses or any other church or denomination. The perceived conflict is non-
existing and irrelevant. The issue is legal and not religious. The terms “disgraceful” and
“immoral” may be religious concepts, but we are concerned with conduct which under the law
and jurisprudence is proscribed and, if perpetrated, how it should be punished.
Same; Same; Same; Same; The Court cannot be the instrument by which one group of
people is exempted from the effects of these laws just because they belong to a particular
religion.—Respondent cannot legally justify her conduct by showing that it was morally right
by the standards of the congregation to which she belongs. Her defense of freedom of religion
is unavailing. Her relationship with Mr. Quilapio is illicit and immoral, both under the Revised
Administrative Code and the Revised Penal Code, notwithstanding the
supposed imprimatur given to them by their religion. The peculiar religious standards alleged
to be those of the sect to which respondent belongs can not shield her from the effects of the
law. Neither can her illicit relationship be condoned on the basis of a written agreement
approved by their religious community. To condone what is inherently wrong in the face of the
standards set by law is to render nugatory the safeguards set to protect the civil service and,
in this case, the judiciary. The Court cannot be the instrument by which one group of people is
exempted from the effects of these laws just because they belong to a particular religion.
Moreover, it is the sworn mandate of the Court to supervise the conduct of an employee of
the judiciary, and it must do so with an even hand regardless of her religious affiliation.
Same; Same; Same; Same; Marriages; Husband and Wife; The strengthening of
marriage ties and the concomitant hostility to adulterous or illicit marital relations is a primary
governmental concern.—The argument that a marital relationship is the concern of religious
authorities and not the State has no basis. In Reynolds v. United States, 98 U.S. 145 (1878),
the U.S. Supreme Court stated: It is impossible to believe that the constitutional guaranty of
religious freedom was intended to prohibit legislation in respect to this most important feature
of social life. Marriage, while from its very nature a sacred obligation, is, nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to
be built, and out of its fruits spring social relations and social obligations and duties, with
which government is necessarily required to deal. The strengthening of marriage ties and the
concomitant hostility to adulterous or illicit marital relations is a primary governmental
concern. It has nothing to do with the particular religious affiliations of those affected by
legislation in this field. The relations, duties, obligations and consequences of marriage are
important to the morals and civilization of a people and to the peace and welfare of society.
Any attempt to inject freedom of religion in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must fail.
Same; Same; Same; Same; A clear and present danger of a substantive evil,
destructive to public morals, is a ground for the reasonable regulation of the free exercise and
enjoyment of religious profession.—A clear and present danger of a substantive evil,
destructive to public morals, is a ground for the reasonable regulation of the free exercise and
enjoyment of religious profession. In addition to the destruction of public morals, the
substantive evil in this case is the tearing down of morality, good order, and discipline in the
judiciary. Jurisprudence on immoral conduct of employees in the civil service has been
consistent. There is nothing in this case that warrants a departure from precedents. We must
not sanction or encourage illicit or adulterous relations among government employees.
 Same; Same; Same; Same; The high degree of moral uprightness that is demanded of
employees of the government entails many sacrifices that are peculiar to the civil service—by
aspiring to these positions, government employees are deemed to have submitted themselves
to greater scrutiny of their conduct, all in the pursuit of a professional civil service. —The
exacting standards of ethics and morality imposed upon court judges and court employees are
required to maintain the people’s faith in the courts as dispensers of justice, and whose image
is mirrored by their actuations. As the Court eloquently stated through Madame Justice Cecilia
Muñoz-Palma: [T]he image of the court of justice is necessarily mirrored in the conduct,
official or otherwise, of the men and woman who work thereat, from the judge to the least
and lowest of its personnel—hence, it becomes the imperative sacred duty of each and
everyone in the court to maintain its good name and standing as a true temple of justice. The
high degree of moral uprightness that is demanded of employees of the government entails
many sacrifices that are peculiar to the civil service. By aspiring to these positions,
government employees are deemed to have submitted themselves to greater scrutiny of their
conduct, all in the pursuit of a professional civil service. The Court has repeatedly applied
these principles in analogous cases.
CARPIO, J., Dissenting Opinion:
Freedom of Religion; Free Exercise Clause; Compelling State Interest Test; The
compelling state interest test espoused in Sherbet v. Verner, 374 U.S. 398 (1963), has been
abandoned more than 15 years ago by the U.S. Supreme Court in the Employment Division v.
Smith, 485 U.S. 660 (1985) and 494 U.S. 872 (1990). —The compelling state interest
test espoused in Sherbert has been abandoned more than 15 years ago by the U.S. Supreme
Court in the Employment Division v. Smith cases. In the Smith cases, the U.S. Supreme Court
set aside the balancing test for religious minorities laid down in Sherbert. Instead, the U.S.
Supreme Court ruled categorically in the Smith cases that the guarantee 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.
Same; Same; The majority opinion blatantly ignores that whatever theory may be
current in the United States—whether strict neutrality, benevolent neutrality or some other
theory—the undeniable fact is what is clearly stated in Smith II that the 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. —The majority opinion blatantly ignores
that whatever theory may be current in the United States—whether strict neutrality,
benevolent neutrality or some other theory—the undeniable fact is what is clearly stated
in Smith II: x x x We 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. x
x x Thus, from the 1879 case of Reynolds v. U.S., 98 U.S. 145 (1878), on the practice of
polygamy by Mormons to the 1988 and 1990 Smith cases on the use of prohibited drugs by
native American Indians, the U.S. Supreme Court has consistently held that religious beliefs do
not excuse any person from liability for violation of a valid criminal law of general application.
The majority opinion simply refuses to face and accept this reality.
Same; Same; Theories on the Religion Clause; A close reading of the major U.S.
Supreme Court opinions specifically relating to the religion clauses presents three principal
theories at play, namely, (a) the strict separation or “no aid” theory, (b) the governmental
neutrality theory, and (c) the accommodation or benevolent neutrality theory.—While the
majority opinion only mentions separation and benevolent neutrality, a close reading of the
major U.S. Supreme Court opinions specifically relating to the religion clauses presents three
principal theories at play, namely, (a) the strict separation or “no aid” theory , (b) the
governmental neutrality theory, and (c) the accommodation or benevolent neutrality theory.
Same; Same; Same; Strict Separation or “No Aid” Theory; Words and Phrases; The
strict separation or “no aid” theory holds that the establishment clause viewed in conjunction
with the free exercise clause requires a strict separation of church and state and that
government can do nothing which involves governmental support of religion or which is
favorable to the cultivation of religious interests.—The strict separation or “no aid”
theory holds that the establishment clause viewed in conjunction with the free exercise clause
requires a strict separation of church and state and that government can do nothing which
involves governmental support of religion or which is favorable to the cultivation of religious
interests. This theory found its first expression in the case of Everson v. Board of Education,
330 U.S. 1 (1946), which espoused the “no aid” principle. Thus, the government cannot by its
programs, policies, or laws do anything to aid or support religion or religious activities.
Same; Same; Same; Governmental Neutrality Theory; Words and Phrases; Under the
governmental neutrality theory, the establishment clause requires government to be neutral
on religious matters.—Under the governmental neutrality theory, the establishment clause
requires government to be neutral on religious matters. This theory was articulated by Mr.
Justice Clark in the case of Abington School District v. Schempp, 374 U.S. 203 (1963), where
he stated that what the Constitution requires is “wholesome neutrality,” i.e., laws and
governmental programs must be directed to secular ends and must have a primary effect that
neither advances nor inhibits religion. This test as stated by Mr. Justice Clark embodies
a theory of strict neutrality—thus, the government may not use the religious factor as a basis
for classification with the purpose of advancing or inhibiting religion: The place of religion in
our society is an exalted one, achieved through a long tradition of reliance on the home, the
church and the inviolable citadel of the individual heart and mind. We have come to recognize
through bitter experience that it is not within the power of government to invade that citadel,
whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship
between man and religion, the state is firmly committed to a position of neutrality . (Italics
supplied) However, the concept of governmental neutrality can be interpreted in various ways
—to some, anything but total neutrality is anathema; to others, “neutrality can only mean that
government policy must place religion at neither a special advantage nor a special
disadvantage.”
Same; Same; Same; Accommodation Theory; Words and Phrases; The accommodation
theory provides that any limitation derived from the establishment clause on cannot be rigidly
applied so as to preclude all aid to religion and that in some situations government must, and
in other situations may, accommodate its policies and laws in the furtherance of religious
freedom.—The accommodation theory provides that any limitation derived from the
establishment clause on cannot be rigidly applied so as to preclude all aid to religion and
that in some situations government must, and in other situations may, accommodate its
policies and laws in the furtherance of religious freedom. The accommodation theory found its
first expression in Zorach v. Clauson, 343 U.S. 306 (1951) . The U.S. Supreme Court held
in Zorach that a state could authorize an arrangement whereby public school children could be
released one hour a week for religious instruction off the school premises. Zorach did not
involve religiously motivated conduct that constituted a violation of a criminal statute.
 Same; Same; Same; Same; The majority opinion fails to mention that a distinction is
often drawn by courts and commentators between mandatory accommodation and permissive
accommodation—mandatory accommodation is exemplified by the key idea in Sherbert that
exemptions from generally applicable laws are required by force of the Free Exercise Clause
while permissive accommodation refers to exercises of political discretion that benefit religion,
and that the Constitution neither requires nor forbids.—The majority opinion vigorously argues
the merits of adopting the theory of accommodation in the interpretation of our Constitution’s
religion clauses. However, the majority opinion fails to mention that a distinction is often
drawn by courts and commentators between mandatory accommodation and permissive
accommodation. Mandatory accommodation is exemplified by the key idea in Sherbert that
exemptions from generally applicable laws are required by force of the Free Exercise
Clause,which the majority opinion adheres to in granting Escritor’s claim of free exercise
exemption. Permissive accommodation refers to exercises of political discretion that benefit
religion, and that the Constitution neither requires nor forbids. The U.S. Supreme Court
recognized in Smith II that although the Free Exercise Clause did not require permissive
accommodation, the political branches could shield religious exercise through legislative
accommodation, for example, by making an exception to proscriptive drug laws for
sacramental peyote use.
Same; Same; Same; Same; Theories are only guideposts and “there is no magic
formula to settle all disputes between religion and the law, no legal pill to ease the pain of
perceived injustice and religious oppression, and certainly no perfect theory to bind judges or
legislators.”—Theories are only guideposts and “there is no magic formula to settle all disputes
between religion and the law, no legal pill to ease the pain of perceived injustice and religious
oppression, and certainly no perfect theory to bind judges or legislators.” The Smith cases,
particularly Smith II, cannot be so easily dismissed by the majority opinion and labeled as
“best exemplifying the strict neutrality approach.” The Smith Court affirmed the power and the
discretion of legislatures to enact statutory protection beyond what the Free Exercise Clause
required. The U.S. Supreme Court indicated in Smith II that legislatures could enact
accommodations to protect religion beyond the Free Exercise Clause minimum without
“establishing” religion and thereby running afoul of the Establishment Clause. What
the Smith cases espouse, therefore, is not really the strict neutrality approach, but more of
permissive accommodation.
Same; Same; Public Officers; Civil Service; Courts; Court Personnel; Even assuming
that the theory of benevolent neutrality and the compelling state interest test are applicable,
the State has a compelling interest in exacting from everyone connected with the dispensation
of justice, from the highest magistrate to the lowest of its personnel, the highest standard of
conduct.—Even assuming that the theory of benevolent neutrality and the compelling state
interest test are applicable, the State has a compelling interest in exacting from everyone
connected with the dispensation of justice, from the highest magistrate to the lowest of its
personnel, the highest standard of conduct. This Court has repeatedly held that “the image of
a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and
women who work thereat.” While arguably not constituting “disgraceful and immoral conduct,”
Escritor’s cohabitation with Quilapio is a patent violation of our penal law on concubinage that
vitiates “the integrity of court personnel and the court itself.” The public’s faith and confidence
in the administration of justice would certainly be eroded and undermined if tolerated within
the judiciary’s ranks are court employees blatantly violating our criminal laws. I therefore
maintain that Escritor’s admitted cohabitation with Quilapio is sufficient basis to hold her guilty
of conduct prejudicial to the best interest of the service and to impose upon her the
appropriate penalty.
Same; Same; Marriages; Husband and Wife; Equally compelling is the State’s interest in
the preservation of marriage and the family as basic social institutions, which is ultimately the
public policy underlying Articles 334 and 349 of the Revised Penal Code.—Equally compelling is
the State’s interest in the preservation of marriage and the family as basic social institutions,
which is ultimately the public policy underlying Articles 334 and 349 of the Revised Penal
Code. This Court has recognized in countless cases that marriage and the family are basic
social institutions in which the State is vitally interested and in the protection of which the
State has the strongest interest. In Domingo v. Court of Appeals, 226 SCRA 572 (1993), the
Court stressed that: Marriage, a sacrosanct institution, declared by the Constitution as an
“inviolable social institution, is the foundation of the family”; as such, it “shall be protected by
the State.” x x x So crucial are marriage and the family to the stability and peace of the
nation that their “nature, consequences, and incidents are governed by law and not subject to
stipulation.”
Same; Same; Same; By choosing to turn a blind eye to Escritor’s criminal conduct, the
majority is in fact recognizing and according judicial imprimatur to a practice, custom or
agreement that subverts marriage, albeit one that is sanctioned by a particular religious sect.
—By choosing to turn a blind eye to Escritor’s criminal conduct, the majority is in fact
recognizing and according judicial imprimatur to a practice, custom or agreement that
subverts marriage, albeit one that is sanctioned by a particular religious sect. The majority’s
opinion here bestows “a credibility and legitimacy upon the religious belief in question simply
by its being judicially recognized as constitutionally sacrosanct.” This is another problem that
arises in free exercise exemption analysis—the benevolent neutrality approach fails to take
into account the role that equality plays in free exercise theory. While the text of the Free
Exercise Clause is consistent with protecting religion from discrimination, it does not compel
discrimination in favor of religion. However, the benevolent neutrality approach promotes its
own form of inequality when under it, exemptions are granted only to religious claimants like
Escritor, whose religiously-sanctioned but otherwise illegal conjugal arrangement with Quilapio
acquires a veneer of “special judicial reinforcement.”
Same; Same; Same; Slipper Slope Adjudication; If this Court condones Escritor’s act of
concubinage on religious grounds, then it will have to condone acts of concubinage by
Catholics who have secured church annulment of their marriage even without a final
annulment from a civil court—the majority pushes their opinion on a slippery slope. —Catholics
may secure a church annulment of their marriage. A church annulment does not exempt
Catholics from criminal or administrative liability if they cohabit with someone other than their
legal spouse before their marriage is finally annulled by a civil court. Catholics cannot legally
justify before civil courts such act of concubinage on the ground that the act conforms to their
religious beliefs because they have a secured a church annulment which freed them from their
marital vows. If this Court condones Escritor’s act of concubinage on religious grounds, then it
will have to condone acts of concubinage by Catholics who have secured church annulment of
their marriage even without a final annulment from a civil court. The majority pushes their
opinion on a slippery slope.
Same; Same; Same; It may well be asked how, under a well-meaning but overly
solicitous grant of exemption based on the Freedom of Exercise Clause of our Constitution, an
individual can be given the private right to ignore a generally applicable, religion-neutral law.—
It may well be asked how, under a well-meaning but overly solicitous grant of exemption RESOLUTION
based on the Freedom of Exercise Clause of our Constitution, an individual can be given the
private right to ignore a generally applicable, religion-neutral law. For this is what the majority
PUNO, J.:
opinion has effectually granted Escritor in dismissing the administrative complaint against her.
The accommodation of Escritor’s religious beliefs under the benevolent neutrality approach is
too high a price to pay when weighed against its prejudicial effect on the sound administration While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once
of justice and the protection of marriage and the family as basic social institutions. 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
Same; Same; Same; There is even no claim here that concubinage is central to the the other hand, seeks to wield its power to regulate her behavior and protect its interest in
religious belief of the Jehovah’s Witnesses, or even apart of the religious belief of the marriage and family and the integrity of the courts where respondent is an employee. How the
Jehovah’s Witnesses.—There is even no claim here that concubinage is central to the religious Court will tilt the scales of justice in the case at bar will decide not only the fate of respondent
belief of the Jehovah’s Witnesses, or even a part of the religious belief of the Jehovah’s Escritor but of other believers coming to Court bearing grievances on their free exercise of
Witnesses. Escritor merely claims that her live-in arrangement with a married man is, in the religion. This case comes to us from our remand to the Office of the Court Administrator on
words of the majority opinion, “in conformity with her and her partner’s religious belief.” This August 4, 2003.1
case is not an issue of a statute colliding with centrally or vitally held beliefs of a religious
denomination, as in the case of Sherbert. This case is about a religious cover for an obviously I. THE PAST PROCEEDINGS
criminal act.
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested
Same; Same; The positive law and the institutions of government are concerned not
Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas
with correct belief but with overt conduct related to good order, peace, justice, freedom, and
City, for an investigation of respondent Soledad Escritor, court interpreter in said court, for
community welfare—certainly, observance of provisions of the Revised Penal Code, whose
living with a man not her husband, and having borne a child within this live-in arrangement.
validity or constitutionality are not even challenged, is a price that all religions in the
Estrada believes that Escritor is committing an immoral act that tarnishes the image of the
Philippines must willingly pay for the sake of good order and peace in the community. —The
court, thus she should not be allowed to remain employed therein as it might appear that the
positive law and the institutions of government are concerned not with correct belief but with
court condones her act.2 Consequently, respondent was charged with committing “disgraceful
overt conduct related to good order, peace, justice, freedom, and community welfare. Hence,
and immoral conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
while there are times when government must adapt to, or acquiesce to meet the needs of
Administrative Code.3 Respondent Escritor testified that when she entered the judiciary in
religious exercise, there are also times when the exercises a religion wishes to pursue must be
1999, she was already a widow, her husband having died in 1998.4 She admitted that she
adapted or even prohibited in order to meet the needs of public policy. For indeed, even
started living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty
religious liberty has its limits. And certainly, “there is a price to be paid, even by religion, for
years ago when her husband was still alive but living with another woman. She also admitted
living in a constitutional democracy.” Certainly, observance of provisions of the Revised Penal
that she and Quilapio have a son.5 But as a member of the religious sect known as the
Code, whose validity or constitutionality are not even challenged, is a price that all religions in
Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that
the Philippines must willingly pay for the sake of good order and peace in the community. To
their conjugal arrangement is in conformity with their religious beliefs and has the approval of
hold otherwise would, as aptly stated in Reynolds v. U.S., 98 U.S. 145 (1878), “make the
her congregation.6 In fact, after ten years of living together, she executed on July 28, 1991, a
professed doctrines of religious belief superior to the law of the land,” and in effect “permit
“Declaration of Pledging Faithfulness.”7
every citizen to become a law unto himself.” The majority opinion will make every religion a
separate republic, making religion a haven for criminal conduct that otherwise would be
punishable under the laws of the land. Today concubinage, tomorrow bigamy, will enjoy
protection from criminal sanction under the new doctrine foisted by the majority opinion.
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have
ADMINISTRATIVE MATTER in the Supreme Court. Disgraceful and Immoral Conduct. 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
The facts are stated in the resolution of the Court.
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
     Antonio Manzano for complainant. 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
     Teodorico M. Diesmos for Soledad Escritor. 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 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
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.”
xxxxxxxxx
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 Sab-bath 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 accommodation 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 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
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 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
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
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 x x x x 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 [1985]) 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
inappropriately, the “compelling state interest” test. After Victoriano, German went back to
the Gerona rule. Ebralinag then employed the “grave and immediate dange r” 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.
x x x      x x x      x x x
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
x x x      x x x      x x x
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 x x x.138 [citations omitted]

Mr. Justice Carpio also asserts that “[m]aking a distinction between permissive
Again, the application of the compelling state interest test could result to three situations
accommodation and mandatory accommodation is more critically important in analyzing free
of accommodation: First, mandatory accommodation would result if the Court finds that
exercise exemption claims because it forces the Court to confront how far it can validly set the
accommodation is required by the Free Exercise Clause. Second, if the Court finds that the
limits of religious liberty under the Free Exercise Clause, rather than presenting the separation
State may, but is not required to, accommodate religious interests, permissive
theory and accommodation theory as opposite concepts, and then rejecting relevant and
accommodation results. Finally, if the Court finds that that establishment concerns prevail
instructive American jurisprudence (such as the Smith case) just because it does not espouse
over potential accommodation interests, then it must rule that
the theory selected.” He then asserts that the Smith doctrine cannot be dismissed because it
the accommodation is prohibited.
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.
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 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.

b. The Compelling State Interest Test

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
As previously stated, the compelling state interest test involves a three-step process. We
general penal laws, permissive accommodation based on religious freedom has been granted
explained this process in detail, by showing the questions which must be answered in each
with respect to one of the crimes penalized under the Revised Penal Code, that of bigamy.
step, viz.:

In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to

. . . “First, “[H]as the statute or government action created a burden on the free exercise of
Mormons an exemption from a general federal law criminalizing polygamy, even if it was
religion?” The courts often look into the sincerity of the religious belief, but without inquiring
proven that the practice constituted a religious duty under their faith.140 In contradistinction,
into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth
Philippine law accommodates the same practice among Moslems, through a legislative act. For
as held in Ballard and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid
while the act of marrying more than one still constitutes bigamy under the Revised Penal
the mere claim of religious beliefs to escape a mandatory regulation. x x x
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:
“x x x 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 (a)The public morality expressed in the law is necessarily secular for in our constitutional
fundamental rights in our Constitution. It is a fundamental right that enjoys a preferred order, the religion clauses prohibit the state from establishing a religion, including the
position in the hierarchy of rights—“the most inalienable and sacred of human morality it sanctions.156 Thus, when the law speaks of “immorality” in the Civil Service
rights,” in the words of Jefferson. Hence, it is not enough to contend that the state’s Law or “immoral” in the Code of Professional Responsibility for lawyers,157 or “public
interest is important, because our Constitution itself holds the right to religious freedom morals” in the Revised Penal Code,158 or “morals” in the New Civil Code,159 or “moral
sacred. The State must articulate in specific terms the state interest involved in preventing the character” in the Constitution,160 the distinction between public and secular morality on
exemption, which must be compelling, for only the gravest abuses, endangering paramount the one hand, and religious morality, on the other, should be kept in mind;161
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. (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
Thus, it is not the State’s broad interest in “protecting the institutions of marriage and the compelling state interests;162
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 (c)The jurisdiction of the Court extends only to public and secular morality. Whatever
cohabitation which respondent’s faith finds moral. In other words, the government must do pronouncement the Court makes in the case at bar should be understood only in this
more than assert the objectives at risk if exemption is given; it must precisely realm where it has authority.163
show how and to what extent those objectives will be undermined if exemptions
are granted.151 This, the Solicitor General failed to do.
(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
To paraphrase Justice Blackmun’s application of the compelling interest test, the morality fall under the phrase “disgraceful and immoral conduct” for which a government
State’s interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a employee may be held administratively liable.164 Only one conduct is in question before
free exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly assert this Court, i.e., the conjugal arrangement of a government employee whose partner is
that unbending application of a criminal prohibition is essential to fulfill any compelling legally married to another which Philippine law and jurisprudence consider both immoral
interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the State and illegal.165
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
(e)While there is no dispute that under settled jurisprudence, respondent’s conduct
partner. The State’s asserted interest thus amounts only to the symbolic preservation of an
constitutes “disgraceful and immoral conduct,” the case at bar involves the defense of
unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug,
religious freedom, therefore none of the cases cited by Mme. Justice Ynares-Santiago
in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption
apply.166 There is no jurisprudence in Philippine jurisdiction holding that the defense of
would effectively break up “an otherwise ideal union of two individuals who have managed to
religious freedom of a member of the Jehovah’s Witnesses under the same circumstances
stay together as husband and wife [approximately twenty-five years]” and have the effect of
as respondent will not prevail over the laws on adultery, concubinage or some other law.
defeating the very substance of marriage and the family.
We cannot summarily conclude therefore that her conduct is likewise so “odious” and
“barbaric” as to be immoral and punishable by law.167
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
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
be condoned because adulterous relationships are constantly frowned upon by
respondent with conduct prejudicial to the best interest of the service, and we reiterate that
society;”152 and “that State laws on marriage, which are moral in nature, take clear
the dissent offends due process as respondent was not given an opportunity to defend herself
precedence over the religious beliefs and practices of any church, religious sect or
against the charge of “conduct prejudicial to the best interest of the service.” Indeed, there is
denomination on marriage. Verily, religious beliefs and practices should not be permitted to
no evidence of the alleged prejudice to the best interest of the service.168
override laws relating to public policy such as those of marriage.”153

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non- sequitur. If the
The above arguments are mere reiterations of the arguments raised by Mme. Justice
Court grants respondent exemption from the laws which respondent Escritor has been
Ynares-Santiago in her dissenting opinion to our Decision dated August 4, 2003, which she
charged to have violated, the exemption would not apply to Catholics who have secured
offers again in toto. These arguments have already been addressed in our decision dated
church annulment of their marriage even without a final annulment from a civil court. First,
August 4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-Santiago’s dissenting
unlike Jehovah’s Witnesses, the Catholic faith considers cohabitation without marriage as
opinion dwelt more on the standards of morality, without categorically holding that religious
immoral. Second, but more important, the Jehovah’s Witnesses have standards and
freedom is not in issue.155 We, therefore, went into a discussion on morality, in order to show
procedures which must be followed before cohabitation without marriage is given the blessing
that:
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
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.
     Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Azcuna, Tinga, Chico-
Nazario and Garcia, JJ., concur.
     Panganiban, (C.J.), I join J. Carpio’s Dissent.
     Ynares-Santiago, J., See Dissenting Opinion.
     Carpio, J., See Dissenting Opinion.

As previously discussed, our Constitution adheres to the benevolent neutrality approach      Carpio-Morales, J., I maintain my vote articulated in the dissenting opinion of J.
that gives room for accommodation of religious exercises as required by the Free Exercise Carpio in the Aug. 4/03 decision. I thus concur with his present dissent.
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      Callejo, J., I concur with the dissent made by Justice Carpio.
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      Velasco, Jr., J., No part due to prior action of OCA.

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 DISSENTING OPINION
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 YNARES-SANTIAGO, J.:
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
With due respect, I am unable to agree with the finding of the majority that “ in this particular
as cited above which established the sincerity of respondent’s religious belief and the fact that
case and under these particular circumstances, respondent Escritor’s conjugal arrangement
the agreement was an internal arrangement within respondent’s congregation, no iota of
does not constitute disgraceful and immoral conduct ” and its decision to dismiss the
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure
administrative complaint filed by petitioner against respondent Soledad S. Escritor.
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.
 The issue in this case is simple. What is the meaning or standard of “disgraceful and
immoral conduct” to be applied by the Supreme Court in disciplinary cases involving court
personnel?
The degree of morality required of every employee or official in the public service has been
consistently high. The rules are particularly strict when the respondent is a Judge or a court
employee.1 Even where the Court has viewed certain cases with human understanding and
compassion, it has insisted that no untoward conduct involving public officers should be left
without proper and commensurate sanction.2 The compassion is shown through relatively
light penalties. Never, however, has this Court justified, condoned, or blessed the continuation
of an adulterous or illicit relationship such as the one in this case, after the same has been
brought to its attention.
Is it time to adopt a more liberal approach, a more “modern” view and a more permissive
pragmatism which allow adulterous or illicit relations to continue provided the job performance
of the court employee concerned is not affected and the place and order in the workplace are
not compromised? When does private morality involving a court employee become a matter of
public concern?
The Civil Service Law punishes public officers and employees for disgraceful and immoral
conduct.3 Whether an act is immoral within the meaning of the statute is not to be
determined by respondent’s concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform, the act which it
condemns.4
The ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards. For those in the service of the Government, provisions of law and court
precedents also have to be considered. The task is elusive.
The layman’s definition of what is “moral” pertains to excellence of character or
disposition. It relates to the distinction between right and wrong; virtue and vice; ethical
praise or blame. Moral law refers to the body of requirements in conformity to which virtuous
action consists. Applied to persons, it is conformity to the rules of morality, being virtuous with
regards to moral conduct.5
That which is not consistent with or not conforming to moral law, opposed to or violating
morality, and now, more often, morally evil or impure, is immoral. Immoral is the state of not
being virtuous with regard to sexual conduct.6
The term begs the definition. Hence, anything contrary to the standards of moral conduct
is immoral. A grossly immoral act must be so corrupt and false as to constitute a criminal act
or so unprincipled as to be reprehensible to a high degree.7
Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the
fringes or boundary limits of what is morally acceptable and what is unacceptably wrong, the
concept of immorality tends to shift according to circumstances of time, person, and place.
When a case involving the concept of immorality comes to court, the applicable provisions of
law and jurisprudence take center stage.
Those who choose to tolerate the situation where a man and a woman separated from
their legitimate spouses decide to live together in an “ideal” and yet unlawful union state—or
more specifically, those who argue that respondent’s cohabiting with a man married to
another woman is not something which is willful, flagrant, or shameless—show a moral
indifference to the opinion of the good and respectable members of the community in a
manner prejudicial to the public service.
Insofar as concepts of morality are concerned, various individuals or cultures may indeed
differ. In certain countries, a woman who does not cover herself with a burka from head to
foot may be arrested for immoral behavior. In other countries, near nudity in beaches passes
by unnoticed. In the present case, the perceived fixation of our society over sex is criticized.
The lesser degree of condemnation on the sins of laziness, gluttony, vanity, selfishness,
avarice and cowardice is decried as discriminatory.
The issue in this case is legal and not philosophical. It is a limited one. Is respondent
Soledad S. Escritor guilty of “disgraceful and immoral” conduct in the context of the Civil
Service Law? Are there any sanctions that must be imposed?
We cannot overlook the fact that respondent Escritor would have been convicted for a
criminal offense if the offended party had been inclined and justified to prosecute her prior to
his death in 1998. Even now, she is a co-principal in the crime of concubinage. A married
woman who has sexual intercourse with a man not her husband, and the man who has carnal
knowledge of her knowing her to be married, commit the crime of adultery.8 Abandonment by
the legal husband without justification does not exculpate the offender; it merely mitigates the
penalty.
The concubine with whom a married man cohabits suffers the penalty of destierro.9 It is
true that criminal proceedings cannot be instituted against persons charged with adultery or
concubinage except upon complaint of the offended party.10 This does not mean that no
actionable offense has been committed if the offended party does not press charges. It simply
cannot be prosecuted. The conduct is not thereby approved, endorsed or commended. It is
merely tolerated.
The inescapable fact in this case is that acts defined as criminal under penal law have been
committed.
There are experts in Criminal Law who believe that the codal provisions on adultery and
concubinage are terribly outmoded and should be drastically revised. However, the task of
amendment or revision belongs to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to constitute a criminal act is “grossly
immoral.”11 It is not merely “immoral.” Respondent now asks the Court to go all the way to
the opposite extreme and condone her illicit relations with not even an admonition or a slight
tap on the wrist.
I do not think the Court is ready to render a precedentsetting decision to the effect that,
under exceptional circumstances, employees of the judiciary may live in a relationship of
adultery or concubinage with no fear of any penalty or sanction and that after being
discovered and charged, they may continue the adulterous relationship until death ends it.
Indeed, the decision in this case is not limited to court interpreter Soledad Escritor. It is not
a pro hac vice ruling. It applies to court employees all over the country and to everybody in
the civil service. It is not a private ruling but one which is public and far-reaching in its
consequences.
In the 1975 case of De Dios v. Alejo,12 the Court applied compassion and empathy but
nonetheless recognized as most important a mending of ways through a total breaking of
relationships. The facts in that case are strikingly similar to those in this case. Yet, the Court
required a high degree of morality even in the presence of apparently exculpating
circumstances. It was stated:
“While it is permissible to view with human understanding and compassion a situation like that
in which respondents find themselves, the good of the service and the degree of morality
which every official and employee in the public service must observe, if respect and
confidence are to be maintained by the government in the enforcement of the law, demand
that no untoward conduct on his part, affecting morality, integrity and efficiency, while holding
office should be left without proper and commensurate sanction, all attendant circumstances
taken into account. In the instant case, We cannot close our eyes to the important
considerations that respondents have rendered government service for more than thirty-three
and twenty-five years, respectively, and that there is no showing that they have ever been
found guilty of any administrative misconduct during all those periods. In the case of
respondent Alejo, it seems rather sadistic to make her suffer the extreme penalty of dismissal
from the service after she had taken care of her corespondent’s four children, giving them the
needed love and attention of a foster mother after they were completely abandoned by their
errant and unfaithful natural mother. Even respondent Marfil, if to a lesser degree, is
deserving of compassion. Most importantly, respondents have amply demonstrated
that they recognize their mistake and have, therefore, actually mended their ways
by totally breaking their relationship complained of, in order to conform with the
imperatives of public interest.” (Emphasis supplied)
The standards for those in the judicial service are quite exacting.
The Court has ruled that in the case of public servants who are in the judiciary, their
conduct and behavior, from the presiding judge to the lowliest clerk, must not only be
characterized by propriety and decorum, but above all else, must be above suspicion.13
In Burgos v. Aquino,14 it was ruled:
“The Code of Judicial Ethics mandates that the conduct of court personnel must be free from
any whiff of impropriety, not only with respect to his duties in the judicial branch but also to
his behavior outside the court as a private individual. There is no dichotomy of morality; a
court employee is also judged by his private morals. These exacting standards of morality and
decency have been strictly adhered to and laid down by the Court to those in the service of
the judiciary. Respondent, as a court stenographer, did not live up to her commitment to lead
a moral life. Her act of maintaining relations with Atty. Burgos speaks for itself.”
Respondent Aquino was a court stenographer who was suspended for six months for
maintaining illicit relations with the husband of complainant Virginia E. Burgos. The Court
therein stated that a second offense shall result in dismissal.
We should not lose sight of the fact that the judicial system over which it presides is
essentially composed of human beings who, as such, are naturally prey to weakness and
prone to errors. Nonetheless, in Ecube-Badel v. Badel,15 we imposed on respondent a
suspension for six months and one day to one year with warning of dismissal should the illicit
relations be repeated or continued.
In Nalupta v. Tapec,16 a deputy sheriff was suspended, also for six months, for having
illicit relations with a certain Cristian Dalida who begot a son by him. His wife complained and
neighbors confirmed that Tapec was frequently seen leaving the house of Consolacion
Inocencio in the morning and returning to it in the afternoon. Tapec and Inocencio begot two
children. Consistently with the other cases, we imposed the penalty of suspension for the first
offense with the graver penalty of dismissal for a second offense.
The earlier case of Aquino v. Navarro17 involved an officer in the Ministry of Education,
Culture and Sports who was abandoned by her husband a year after their marriage and who
lived alone for eighteen years with their child. Pretending that she sincerely believed her
husband to have died, she entered into a marital relationship with Gonzalo Aquino and had
children by him in 1968 and 1969. Eighteen days before their third child was born on May 25,
1975, the two decided to get married. Notwithstanding the illicit relationship which blossomed
into a bigamous marriage, the full force of the law was not applied on her, “considering the
exceptional circumstances that befell her in her quest for a better life.” Still, a penalty of six
months suspension was imposed with a warning that “any moral relapse on her part will be
severely dealt with.”
Times are changing. Illicit sex is now looked upon more kindly. However, we should not
completely disregard or overlook a relationship of adultery or concubinage involving a court
employee and not order it to be terminated. It should not ignore what people will say about
our moral standards and how a permissive approach will be used by other court employees to
freely engage in similarly illicit relationship with no fear of disciplinary punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing marriages
with their respective legitimate spouses when they decided to live together. To give an aura of
regularity and respectability to what was undeniably an adulterous and, therefore, immoral
relationship, the two decided to acquire through a religious ceremony what they could not
accomplish legally. They executed on July 28, 1991 the “Declaration of Pledging Faithfulness”
to make their relationship what they alleged it would be—a binding tie before Jehovah God.
In this case, respondent is charged not as a Jehovah’s Witness but in her capacity as a
court employee. It is contended that respected elders of the Jehovah’s Witnesses sanction “an
informal conjugal relationship” between respondent and her marital partner for more than two
decades, provided it is characterized by faithfulness and devotion to one another. However,
the “informal conjugal relationship” is not between two single and otherwise eligible persons
where all that is missing is a valid wedding ceremony. The two persons who started to live
together in an ostensible marital relationship are married to other persons.

We must be concerned not with the dogmas or rules of any church or religious sect but
with the legal effects under the Civil Service Law of an illicit or adulterous relationship
characterized by the facts of this case.
There is no conflict in this case between the dogmas or doctrines of the Roman Catholic
Church and those of the Jehovah’s Witnesses or any other church or denomination. The
perceived conflict is non-existing and irrelevant.
The issue is legal and not religious. The terms “disgraceful” and “immoral” may be
religious concepts, but we are concerned with conduct which under the law and jurisprudence
is proscribed and, if perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by showing that it was morally right by the
standards of the congregation to which she belongs. Her defense of freedom of religion is
unavailing. Her relationship with Mr. Quilapio is illicit and immoral, both under the Revised
Administrative Code18 and the Revised Penal Code,19 notwithstanding the
supposed imprimatur given to them by their religion.
The peculiar religious standards alleged to be those of the sect to which respondent
belongs can not shield her from the effects of the law. Neither can her illicit relationship be
condoned on the basis of a written agreement approved by their religious community. To
condone what is inherently wrong in the face of the standards set by law is to render nugatory
the safeguards set to protect the civil service and, in this case, the judiciary.
The Court cannot be the instrument by which one group of people is exempted from the
effects of these laws just because they belong to a particular religion. Moreover, it is the
sworn mandate of the Court to supervise the conduct of an employee of the judiciary, and it
must do so with an even hand regardless of her religious affiliation.
I find that respondent’s “Declaration of Pledging Faithfulness” does nothing for her insofar
as this administrative matter is concerned, for written therein are admissions regarding the
legal impediments to her marrying Quilapio. In the said document, she even pledged to seek
all avenues to obtain legal recognition by civil authorities of her union with
Quilapio.20 However, the record is silent as to any effort on respondent’s part to effect this
covenant.
The evidence shows that respondent repeatedly admitted the existence of the legal
infirmities that plague her relationship with Quilapio.21 As a court interpreter, she is an
integral member of the judiciary and her service as such is crucial to the administration of
justice. Her acts and omissions constitute a possible violation of the law—the very same law
that she is sworn to uphold as an employee of the judiciary. How can she work under the
pretense of being a contributing force to the judicial system if she herself is committing acts
that may constitute breaking the law?
Respondent invokes her constitutional right to religious freedom. The separation of church
and state has been inviolable in this jurisdiction for a century. However, the doctrine is not
involved in this case.22 Furthermore, the legislature made cohabitation with a woman who is
not one’s wife a crime through the enactment of the Revised Penal Code.23 The legislative
power has also seen fit to enact the Civil Service Law and has given said law general
application.
The argument that a marital relationship is the concern of religious authorities and not the
State has no basis.
In Reynolds v. United States,24 the U.S. Supreme Court stated:
“It is impossible to believe that the constitutional guaranty of religious freedom was intended
to prohibit legislation in respect to this most important feature of social life. Marriage, while
from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said to be built, and out of its
fruits spring social relations and social obligations and duties, with which government is
necessarily required to deal.”
The strengthening of marriage ties and the concomitant hostility to adulterous or illicit marital
relations is a primary governmental concern. It has nothing to do with the particular religious
affiliations of those affected by legislation in this field.
The relations, duties, obligations and consequences of marriage are important to the
morals and civilization of a people and to the peace and welfare of society.25 Any attempt to
inject freedom of religion in an effort to exempt oneself from the Civil Service rules relating to
the sanctity of the marriage tie must fail.
The U.S. Supreme Court in the above-cited case of Reynolds v. United States26 upheld
federal legislation prohibiting bigamy and polygamy in territories of the United States, more
specifically Utah. Members of the Mormon Church asserted that the duty to practice polygamy
was an accepted doctrine of their church. In fact, Mormons had trekked from the regular
States of the Union to what was then a mere Territory in order to practice their religious
beliefs, among them polygamy. The Court declared that while it protected religious belief and
opinion, it did not deprive Congress of the power to reach actions violative of social duties or
subversive of good order. Polygamy was outlawed even for Mormons who considered it a
religious obligation.
We must not exempt illegal conduct or adulterous relations from governmental regulation
simply because their practitioners claim it is part of their free exercise of religious profession
and worship.
 Indeed, the Court distinguishes between religious practices, including the seemingly
bizarre, which may not be regulated, and unacceptable religious conduct which should be
prevented despite claims that it forms part of religious freedom.
In Ebralinag v. Division Superintendent of Schools ,27 we validated the exemption of
Jehovah’s Witnesses from coerced participation in flag ceremonies of public schools. Following
the ruling in West Virginia v. Barnette,28 we declared that unity and loyalty, the avowed
objectives of flag ceremonies, cannot be attained through coercion. Enforced unity and loyalty
is not a good that is constitutionally obtainable at the expense of religious liberty. A desirable
end cannot be promoted by prohibited means.
The exemption from participation in flag ceremonies cannot be applied to the tolerance of
adulterous relationships by court personnel in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to public morals, is a ground
for the reasonable regulation of the free exercise and enjoyment of religious profession.29 In
addition to the destruction of public morals, the substantive evil in this case is the tearing
down of morality, good order, and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in the civil service has been consistent.
There is nothing in this case that warrants a departure from precedents. We must not sanction
or encourage illicit or adulterous relations among government employees.
Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah’s Witness.
Exemptions granted under our Muslim Laws to legitimate followers of Islam do not apply to
them.30 The Court has no legislative power to place Jehovah’s Witness in the same legal
category as Muslims.
In Bucatcat v. Bucatcat,31 it was held that conduct such as that demonstrated by the
respondent is immoral and deserving of punishment. For such conduct, the respondent,
another court interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of integrity, uprightness and honesty.
Like any public servant, he must exhibit the highest sense of honesty and integrity not only in
the performance of his official duties but in his personal and private dealings with other
people, to preserve the court’s good name and standing. It cannot be overstressed that the
image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel
who work thereat, from the judge to the lowest of its personnel. Court employees have been
enjoined to adhere to the exacting standards of morality and decency in their professional and
private conduct in order to preserve the good name and integrity of courts of justice.
All those who work in the judiciary are bound by the most exacting standards of ethics and
morality to maintain the people’s faith in the courts as dispensers of justice. In Liguid v.
Camano,32 it was ruled:
“Surely, respondent’s behavior of living openly and scandalously for over two (2) decades with
a woman not his wife and siring a child by her is representative of the gross and serious
misconduct penalized by the ultimate penalty of dismissal under Section 22 (c), Rule XIV of
the Omnibus Rules Implementing Book IV of Executive Order No. 292 otherwise known as the
Revised Administrative Code of 1987. As defined, misconduct is a transgression of some
established or definite rule of action, more particularly, unlawful behavior or gross negligence
by the public officer. Respondent’s conduct is an example of the kind of gross and flaunting
misconduct that so quickly and surely corrodes the respect for the courts without which
government cannot continue and that tears apart the bonds of our polity.”
Earlier, in Navarro v. Navarro,33 the penalty of suspension was imposed on a court employee
for maintaining illicit relations with a woman not his wife, thus:
“Time and again we have stressed adherence to the principle that public office is a public
trust. All government officials and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and
justice, and lead modest lives. This constitutional mandate should always be in the minds of all
public servants to guide them in their actions during their entire tenure in the government
service. The good of the service and the degree of morality which every official and employee
in the public service must observe, if respect and confidence are to be maintained by the
Government in the enforcement of the law, demand that no untoward conduct on his part,
affecting morality, integrity and efficiency while holding office should be left without proper
and commensurate sanction, all attendant circumstances taken into account.”
The exacting standards of ethics and morality imposed upon court judges and court
employees are required to maintain the people’s faith in the courts as dispensers of justice,
and whose image is mirrored by their actuations. As the Court eloquently stated through
Madame Justice Cecilia Muñoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the conduct, official or otherwise,
of the men and woman who work thereat, from the judge to the least and lowest of its
personnel—hence, it becomes the imperative sacred duty of each and everyone in the court to
maintain its good name and standing as a true temple of justice.34
The high degree of moral uprightness that is demanded of employees of the government
entails many sacrifices that are peculiar to the civil service. By aspiring to these positions,
government employees are deemed to have submitted themselves to greater scrutiny of their
conduct, all in the pursuit of a professional civil service. The Court has repeatedly applied
these principles in analogous cases.35
Immorality is punishable by suspension of six (6) months and one day to one (1) year for
the first offense and dismissal for the second offense.36 Considering that respondent’s
misconduct is in the nature of a continuing offense, it must be treated as a first offense, and
her continued cohabitation with Luciano E. Quilapio, Jr. must be deemed a second offense,
which will warrant the penalty of dismissal.
ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality and
disgraceful conduct and should be SUSPENDED for a period of Six (6) months and One day
without pay, with a warning that the continuance of her illicit cohabitation with Luciano D.
Quilapio, Jr. shall be deemed a second offense which shall warrant the penalty of dismissal.
DISSENTING OPINION
CARPIO, J.:
I maintain my dissent from the majority opinion as it now orders the dismissal of the
administrative complaint filed by petitioner Alejandro Estrada against respondent Soledad S.
Escritor.
The majority opinion relies heavily on Sherbert v. Verner1 in upholding Escritor’s claim of
exemption from administrative liability grounded on her religious belief as a member of the
Jehovah’s Witnesses. This religious sect allows Escritor’s cohabitation with Luciano D. Quilapio,
Jr., who has a subsisting marriage with another woman.
The compelling state interest test espoused in Sherbert has been abandoned more
than 15 years ago by the U.S. Supreme Court in the Employment Division v. Smith 2 cases.
In the Smith cases, the U.S. Supreme Court set aside the balancing test for religious minorities
laid down in Sherbert. Instead, the U.S. Supreme Court ruled categorically in the Smith cases
that the guarantee 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.
In the first Employment Division v. Smith  (Smith I),3 petitioner denied respondents’
application for unemployment compensation benefits under an Oregon statute declaring
ineligible for benefits employees discharged for work-related misconduct. The misconduct for
which respondents were discharged from their jobs consisted of their ingesting peyote, a
hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church.
The Oregon Supreme Court ruled that although the denials of benefits were proper under
Oregon law, Sherbert required the Oregon Supreme Court to hold that the denials significantly
burdened respondents’ religious freedom in violation of the Free Exercise Clause. The Oregon
Supreme Court did not attach significance to the fact that peyote possession is a felony in
Oregon.
The U.S. Supreme Court vacated the Oregon Supreme Court’s judgment and ordered the
remand of the case for a definitive ruling on whether the religious use of peyote is legal in
Oregon. The U.S. Supreme Court deemed the legality or illegality of the questioned
conduct critical in its analysis of respondents’ claim for protection under the Free
Exercise Clause.
In Smith I, the U.S. Supreme Court distinguished respondents’ conduct with that involved
in Sherbert, thus:
x x x In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm’n of
Fla.,4 the conduct that gave rise to the termination of employment was perfectly
legal; indeed, the Court assumed that it was immune from state regulation.5 The results we
reached in Sherbert, Thomas and Hobbie might well have been different if the
employees had been discharged for engaging in criminal conduct. x x x The
protection that the First Amendment provides to “ legitimate claims to the free
exercise of religion” does not extend to conduct that a State has validly
proscribed.6 (Emphasis supplied)
In the second Employment Division v. Smith  (Smith II),7 the Oregon Supreme Court held
on remand that respondents’ religiously inspired use of peyote fell within the prohibition of the
Oregon statute classifying peyote as a “controlled substance” and punishing its possession as
a felony. Although the Oregon Supreme Court noted that the statute makes no exception for
the sacramental use of peyote, it still concluded that the prohibition was not valid under the
Free Exercise Clause.
The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S. Supreme Court
ruled that a claim of exemption from a generally applicable law grounded on the right of free
exercise could not be evaluated under the compelling state interest test of Sherbert,
particularly where such law does not violate other constitutional protections. The U.S.
Supreme Court expressly declared:
x x x We 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. x x x8
xxxx
The only decisions in which we have held that the First Amendment bars application of a
neutral, generally applicable law to religiously motivated action have involved not the Free
Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press. x x x9
Respondents argue that even though exemption from generally applicable criminal laws
need not automatically be extended to religiously motivated conduct, at least the claim for a
religious exemption must be evaluated under the balancing test set forth in Sherbert v.
Verner. x x x In recent years we have abstained from applying the Sherbert test
(outside the unemployment compensation field) at all. x x x10
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions
from a generally applicable criminal law. x x x11 (Emphasis supplied)
What the Smith cases teach us is that the compelling state interest test in Sherbert is not
the correct test in determining the legitimacy of a claim of exemption from generally
applicable, religion-neutral laws that have the incidental effect of burdening particular religious
practice. Any such claim for exemption should be analyzed by considering whether the
conduct in question is one that “the State has validly proscribed,” irrespective of the sincerity
or centrality of an individual’s religious beliefs.
Here, Escritor is indisputably engaged in criminal conduct. Escritor’s continued cohabitation
with Quilapio is patently in violation of Article 334 of the Revised Penal Code on concubinage.
Article 334 makes no exception for religiously sanctioned cohabitation such as that existing
between Escritor and Quilapio. The majority opinion in fact concedes that the present case
involves a claim of exemption “from a law of general applicability that inadvertently burdens
religious exercise.”12 The majority opinion even concedes further that the conduct in question
is one “which Philippine law and jurisprudence consider both immoral and illegal.”13 And yet,
the majority opinion expediently brushes aside the illegality of Escritor’s questioned conduct
using the obsolete compelling state interest test in Sherbert.
The majority opinion mentions two “opposing strains of jurisprudence on the religion
clauses” in U.S. history, namely, separation or strict neutrality and benevolent
neutrality or accommodation. The majority opinion asserts that the framers of our 1935,
1973, and 1987 Constitutions intended to adopt a benevolent neutrality approach in
interpreting the religion clauses, i.e., the Establishment and Free Exercise Clauses. The
majority opinion then reasons that in determining claims of exemption based on freedom of
religion, this Court must adopt the compelling state interest test laid down by the U.S.
Supreme Court in Sherbert, which according to the majority, best exemplifies the benevolent
neutrality approach. Hence, even as the majority opinion acknowledges that the U.S. Supreme
Court in the Smith cases has abandoned the compelling state interest test espoused
in Sherbert, the majority opinion dismisses this abandonment in its analysis of Escritor’s free
exercise exemption claim by simply labeling the Smith cases as exemplifying the strict
neutrality approach.
The majority opinion blatantly ignores that whatever theory may be current in
the United States—whether strict neutrality, benevolent neutrality or some other
theory—the undeniable fact is what is clearly stated in Smith II:
“x x x We 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. x x x”14
Thus, from the 1879 case of Reynolds v. U.S.15 on the practice of polygamy by
Mormons to the 1988 and 1990 Smith cases on the use of prohibited drugs by
native American Indians, the U.S. Supreme Court has consistently held that
religious beliefs do not excuse any person from liability for violation of a valid
criminal law of general application. The majority opinion simply refuses to face and
accept this reality.
The present case involves conduct that violates Article 334 of the Revised Penal Code, a
provision of law that no one challenges as unconstitutional. Clearly, the theories invoked in the
majority opinion have no application to the present case based on an unbroken line of U.S.
Supreme Court decisions. In any event, we shall discuss for academic purposes the merits
of the theories advanced in the majority opinion. While the majority opinion only mentions
separation and benevolent neutrality, a close reading of the major U.S. Supreme Court
opinions specifically relating to the religion clauses presents three principal theories at play,
namely, (a) the strict separation or “no aid” theory, (b) the governmental neutrality
theory, and (c) the accommodation or benevolent neutrality theory.16
The strict separation or “no aid” theory holds that the establishment clause viewed in
conjunction with the free exercise clause requires a strict separation of church and state and
that government can do nothing which involves governmental support of religion or which is
favorable to the cultivation of religious interests.17 This theory found its first expression in the
case of Everson v. Board of Education ,18 which espoused the “no aid” principle. Thus, the
government cannot by its programs, policies, or laws do anything to aid or support religion or
religious activities.19
Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement to
parents of parochial, as well as public school children. Apparently, the strict interpretation or
“no aid” theory prohibits state benefits to a particular sect or sects only, but does not prohibit
benefits that accrue to all, including one or more sects. Everson did not involve religiously
motivated conduct that constituted a violation of a criminal statute.
Under the governmental neutrality theory, the establishment clause requires
government to be neutral on religious matters.20 This theory was articulated by Mr. Justice
Clark in the case of Abington School District v. Schempp ,21 where he stated that what the
Constitution requires is “wholesome neutrality,” i.e., laws and governmental programs must be
directed to secular ends and must have a primary effect that neither advances nor inhibits
religion.22 This test as stated by Mr. Justice Clark embodies a theory of strict neutrality23
—thus, the government may not use the religious factor as a basis for classification with the
purpose of advancing or inhibiting religion:
The place of religion in our society is an exalted one, achieved through a long tradition of
reliance on the home, the church and the inviolable citadel of the individual heart and mind.
We have come to recognize through bitter experience that it is not within the power of
government to invade that citadel, whether its purpose or effect be to aid or oppose, to
advance or retard. In the relationship between man and religion, the state is firmly committed
to a position of neutrality.24 (Italics supplied)
However, the concept of governmental neutrality can be interpreted in various ways—to some,
anything but total neutrality is anathema; to others, “neutrality can only mean that
government policy must place religion at neither a special advantage nor a special
disadvantage.”25
Schempp struck down a Pennsylvania law allowing the recitation of the Lord’s Prayer and
the reading of the Bible without comment in public schools, although the recitation and
reading were voluntary and did not favor any sect. Schempp did not involve religiously
motivated conduct that constituted a violation of a criminal statute.
The accommodation theory provides that any limitation derived from the establishment
clause on cannot be rigidly applied so as to preclude all aid to religion and that in some
situations government must, and in other situations may, accommodate its policies
and laws in the furtherance of religious freedom.26 The accommodation theory found
its first expression in Zorach v. Clauson.27 The U.S. Supreme Court held in Zorach that a state
could authorize an arrangement whereby public school children could be released one hour a
week for religious instruction off the school premises. Zorach did not involve religiously
motivated conduct that constituted a violation of a criminal statute.
In his book Religion and the Constitution published in 1964, Professor Paul G. Kauper used
the term “benevolent neutrality” in the following context:
It would be a mistake, however, to suggest that the theory of accommodation x x x is
unrelated to other ideas and theories that have been developed, notably the no-aid and
neutrality concepts. Rather, accommodation, instead of being viewed as a wholly
independent theory of interpretation, should be seen as a modification of the no-
aid or neutrality concepts. x x x
These ideas cannot be pressed to their absolute limit. Not only must the no-aid or
neutrality concept be subordinated to the necessities of free exercise, but an area of
legislative discretion must be allowed where a state may choose to advance the
cause of religious freedom even at the expense of not being completely neutral.
Indeed, this may be described as the larger or benevolent neutrality.28 (Emphasis and
italics supplied)
Six years later, the U.S. Supreme Court used the term “benevolent neutrality” for the first time
in Walz v. Tax Commission.29 In Walz, the U.S. Supreme Court sustained the constitutionality
of tax exemption of property used exclusively for religious purposes on the basis of
“benevolent neutrality,” as follows:
The Court has struggled to find a neutral course between the two Religion Clauses, both of
which are cast in absolute terms, and either of which, if expanded to a logical extreme, would
tend to clash with the other. x x x
xxxx
The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to insure that no
religion be sponsored or favored, none commanded, and none inhibited. The general principle
deducible from the First Amendment and all that has been said by the Court is this: that we
will not tolerate either governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is room for play in
the joints productive of a benevolent neutrality which will permit religious exercise
to exist without sponsorship and without interference.30 (Emphasis and italics
supplied)
At issue in Walz was a provision in New York’s Constitution authorizing property tax
exemptions to religious organizations for religious properties used solely for religious
worship. Walz did not involve religiously motivated conduct that constituted a violation of a
criminal statute.
The majority opinion cited the case of Walz in support of its assertion that the framers of
the 1935 Constitution intended to adopt the benevolent neutrality approach in the
interpretation of the religion clauses, viz.:
“x x x With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution, the benevolent
neutrality referred to in the Walz case was given constitutional imprimatur under the regime of
the 1935 Constitution. x x x”
The U.S. Supreme Court decided Walz only in 1970, more than three decades after the
adoption of our 1935 Constitution. It is certainly doubtful whether the framers of our 1935
Constitution intended to give “constitutional imprimatur” to a theory of interpretation
espoused in a case that was yet to be formulated. Moreover, when the U.S. Supreme Court
upheld the constitutionality of church property tax exemption on the basis of “benevolent
neutrality,” it did so on grounds that no particular religion is singled out for favorable
treatment, and partly on historical grounds that church tax exemptions have been accepted
without challenge in all states for most of the nation’s history.31
The majority opinion vigorously argues the merits of adopting the theory of
accommodation in the interpretation of our Constitution’s religion clauses. However, the
majority opinion fails to mention that a distinction is often drawn by courts and commentators
between mandatory accommodation and permissive accommodation. Mandatory
accommodation is exemplified by the key idea in Sherbert that exemptions from generally
applicable laws are required by force of the Free Exercise Clause,32 which the majority opinion
adheres to in granting Escritor’s claim of free exercise exemption.
Permissive accommodation refers to exercises of political discretion that benefit religion,
and that the Constitution neither requires nor forbids.33 The U.S. Supreme Court recognized
in Smith II that although the Free Exercise Clause did not require permissive accommodation,
the political branches could shield religious exercise through legislative
accommodation,34 for example, by making an exception to proscriptive drug laws for
sacramental peyote use.
Professor Michael W. McConnell, whose views on the accommodation theory were
frequently quoted by the majority opinion, defends mandatory accommodation.35 However,
Prof. Kauper, likewise an accommodationist, favors permissive accommodation, stating that
“as a general proposition, no person should be allowed to claim that because of his religion he
is entitled as a matter of constitutional right to claim an exemption from general regulatory
and tax laws.”36Prof. Kauper further explains his position that religious liberty furnishes no
ground for claiming immunity to laws which place reasonable restrictions on overt conduct in
the furtherance of public interests protected by the state’s police power,37 as follows:
Where the issue is not the use of governmental power to sanction religious belief and
practices by some positive program but the granting of exemption on religious grounds
from laws of general operation, what determines whether the government is
required, or permitted, to make the accommodation? While a state may
appropriately grant exemptions from its general police and tax laws, it should not
be constitutionally required to do so unless this immunity can properly be claimed
as part of the constitutional guarantee of religious liberty. Thus, exemptions from
property tax and military service, health and labor laws should be at the discretion of
government. Whether Sherbert carried the principle of required accommodation too far is
debatable. It may well be that the court here undertook a determination of questions better
left to the legislature and that in this area, x x x the policy of granting exemptions on
religious grounds should be left to legislative discretion.38 (Emphasis supplied)
It 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. The compelling state interest test
in Sherbert pushes the limits of religious liberty too far, and so too does the majority opinion
insofar as it grants Escritor immunity to a law of general operation on the ground of religious
liberty. Making a distinction between permissive accommodation and mandatory
accommodation is more critically important in analyzing free exercise exemption claims. Such
limitations 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 cases) just because it does not espouse the theory
selected.
Theories are only guideposts and “there is no magic formula to settle all disputes between
religion and the law, no legal pill to ease the pain of perceived injustice and religious
oppression, and certainly no perfect theory to bind judges or legislators.”39 The Smith cases,
particularly Smith II, cannot be so easily dismissed by the majority opinion and labeled as
“best exemplifying the strict neutrality approach.” The Smith Court affirmed the power and the
discretion of legislatures to enact statutory protection beyond what the Free Exercise Clause
required. The U.S. Supreme Court indicated in Smith II that legislatures could enact
accommodations to protect religion beyond the Free Exercise Clause minimum without
“establishing” religion and thereby running afoul of the Establishment Clause.40 What
the Smith cases espouse, therefore, is not really the strict neutrality approach, but more of
permissive accommodation.41
Even assuming that the theory of benevolent neutrality and the compelling state interest
test are applicable, the State has a compelling interest in exacting from everyone connected
with the dispensation of justice, from the highest magistrate to the lowest of its personnel, the
highest standard of conduct. This Court has repeatedly held that “the image of a court of
justice is necessarily mirrored in the conduct, official or otherwise, of the men and women
who work thereat.”42 While arguably not constituting “disgraceful and immoral
conduct,”43 Escritor’s cohabitation with Quilapio is a patent violation of our penal law on
concubinage that vitiates “the integrity of court personnel and the court itself.”44 The public’s
faith and confidence in the administration of justice would certainly be eroded and
undermined if tolerated within the judiciary’s ranks are court employees blatantly violating our
criminal laws.
I therefore maintain that Escritor’s admitted cohabitation with Quilapio is sufficient basis to
hold her guilty of conduct prejudicial to the best interest of the service and to impose upon
her the appropriate penalty.
Equally compelling is the State’s interest in the preservation of marriage and the family as
basic social institutions,45 which is ultimately the public policy underlying Articles 334 and 349
of the Revised Penal Code. This Court has recognized in countless cases that marriage and the
family are basic social institutions in which the State is vitally interested46 and in the
protection of which the State has the strongest interest.47 In Domingo v. Court of
Appeals,48 the Court stressed that:
Marriage, a sacrosanct institution, declared by the Constitution as an “inviolable social
institution, is the foundation of the family”; as such, it “shall be protected by the
State.” x x x So crucial are marriage and the family to the stability and peace of the
nation that their “nature, consequences, and incidents are governed by law and not subject
to stipulation.”
The same sentiment has been expressed in Article 149 of the Family Code:
The family, being the foundation of the nation, is a basic social institution which public
policy cherishes and protects. Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be recognized or
given effect. (Emphasis supplied)
And yet, notwithstanding the foregoing compelling state interests at stake, the majority all too
willingly and easily places them in jeopardy by upholding Escritor’s claim of exemption. On this
point, Professor William P. Marshall aptly observes that one of the problems involved in free
exercise exemption analysis is that it requires the Court to weigh the state interest against the
interest of the narrower class comprised only of those seeking exemption. On the other hand,
in other doctrinal areas, the Court balances the state interest in the regulation at issue against
the interests of the regulated class taken as a whole. Prof. Marshall persuasively argues that
this leads to both unpredictability in the exemption balancing process and potential
inconsistency in result “as each regulation may be subject to limitless challenges based upon
the peculiar identity of the challenger.”49 Moreover, Prof. Marshall notes that the exemption
balancing process necessarily leads to underestimating the strength of the countervailing state
interest.50 Indeed, the state interest in a challenged regulation will seldom be seriously
threatened if only a few persons seek exemption from it.51
In dismissing the administrative complaint against Escritor, the majority opinion effectively
condones and accords a semblance of legitimacy to her patently unlawful cohabitation with
Quilapio, while in the eyes of the law, Quilapio remains married to his legal wife. This
condonation in fact facilitates the circumvention by Escritor and Quilapio of Articles 334 and
349 of the Revised Penal Code on concubinage and bigamy.52 Without having his first
marriage legally dissolved, Quilapio can now continue to cohabit with Escritor with impunity.
How do we reconcile this scenario with the Constitution’s emphatic declaration that marriage is
“an inviolable social institution”? By choosing to turn a blind eye to Escritor’s criminal conduct, questioned conduct of Escritor in this case. Clearly, even assuming for the sake of argument
the majority is in fact recognizing and according judicial imprimatur to a practice, custom or that Sherbert remains good law in the United States and thus has some persuasive force here,
agreement that subverts marriage, albeit one that is sanctioned by a particular religious sect. still Sherbert is patently inapplicable to the present case.
The majority’s opinion here bestows “a credibility and legitimacy upon the religious belief in
question simply by its being judicially recognized as constitutionally sacrosanct.”54 This is
another problem that arises in free exercise exemption analysis—the benevolent neutrality
approach fails to take into account the role that equality plays in free exercise theory.55 While
The positive law and the institutions of government are concerned not with correct belief
the text of the Free Exercise Clause is consistent with protecting religion from discrimination, it
but with overt conduct related to good order, peace, justice, freedom, and community
does not compel discrimination in favor of religion.56 However, the benevolent neutrality
welfare.58 Hence, while there are times when government must adapt to, or acquiesce to
approach promotes its own form of inequality when under it, exemptions are granted only to
meet the needs of religious exercise, there are also times when the exercises a religion wishes
religious claimants like Escritor, whose religiously-sanctioned but otherwise illegal conjugal
to pursue must be adapted or even prohibited in order to meet the needs of public
arrangement with Quilapio acquires a veneer of “special judicial reinforcement.”57
policy.59 For indeed, even religious liberty has its limits. And certainly, “there is a price to be
paid, even by religion, for living in a constitutional democracy.”60
Catholics may secure a church annulment of their marriage. A church annulment does not
exempt Catholics from criminal or administrative liability if they cohabit with someone other
Certainly, observance of provisions of the Revised Penal Code, whose validity or
than their legal spouse before their marriage is finally annulled by a civil court. Catholics
constitutionality are not even challenged, is a price that all religions in the Philippines must
cannot legally justify before civil courts such act of concubinage on the ground that the act
willingly pay for the sake of good order and peace in the community. To hold otherwise would,
conforms to their religious beliefs because they have a secured a church annulment which
as aptly stated in Reynolds v. U.S.,61 “make the professed doctrines of religious belief
freed them from their marital vows. If this Court condones Escritor’s act of concubinage on
superior to the law of the land,” and in effect “permit every citizen to become a law unto
religious grounds, then it will have to condone acts of concubinage by Catholics who have
himself.” The majority opinion will make every religion a separate republic, making religion a
secured church annulment of their marriage even without a final annulment from a civil court.
haven for criminal conduct that otherwise would be punishable under the laws of the land.
The majority pushes their opinion on a slippery slope.
Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the
new doctrine foisted by the majority opinion.

It may well be asked how, under a well-meaning but overly solicitous grant of exemption
based on the Freedom of Exercise Clause of our Constitution, an individual can be given the
private right to ignore a generally applicable, religion-neutral law. For this is what the majority
opinion has effectually granted Escritor in dismissing the administrative complaint against her.
The accommodation of Escritor’s religious beliefs under the benevolent neutrality
approach is too high a price to pay when weighed against its prejudicial effect on the sound
administration of justice and the protection of marriage and the family as basic social
institutions.
Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one day
without pay for conduct prejudicial to the best interest of the service. However, the
suspension shall be lifted immediately upon Escritor’s manifestation to this Court that she has
ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent Escritor is warned that
her continued cohabitation with Quilapio, during or after her suspension and while Quilapio’s
marriage with his legal wife still subsists, shall merit the penalty of dismissal from the service.
Administrative complaint dismissed.

Finally, there is even no claim here that concubinage is central to the religious belief of the
Jehovah’s Witnesses, or even a part of the religious belief of the Jehovah’s Witnesses. Escritor
merely claims that her live-in arrangement with a married man is, in the words of the majority
opinion, “in conformity with her and her partner’s religious belief.” This case is not an issue of
a statute colliding with centrally or vitally held beliefs of a religious denomination, as in the
case of Sherbert. This case is about a religious cover for an obviously criminal act.
In Sherbert, the conduct in question was the refusal of a member of the Seventh Day
Adventist Church to work on the Sabbath Day or on Saturdays, which prevented prospective
employers from giving petitioner in Sherbert employment. Petitioner in Sherbert then claimed
unemployment benefits, which the State denied because the law withheld benefits to those
who failed without good cause to accept available suitable work. In Sherbert, the questioned
conduct—the refusal to work on Saturdays—was part of the religious tenets of the Seventh
Day Adventists. The questioned conduct in Sherbert was not a criminal conduct, unlike the
Notes.—The Free Exercise of Religion Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of religious materials by a religious organization.
(Tolentino vs. Secretary of Finance, 235 SCRA 630 [1994])
In the case of a regulation which appears to abridge a right to which the fundamental law
accords high significance, it is the regulation, not the act (or refusal to act), which is the
exception and which requires the court’s strictest scrutiny. (Ebralinag vs. Division
Superintendent of Schools of Cebu, 251 SCRA 569 [1995])
Judicial declarations that an activity constitutes “disgraceful and immoral” behavior under
the contemplation of the Civil Service Law cannot be mere effectuations of personal bias,
notably those colored by particular religious mores. The constitutional protections afforded
under the Bill of Rights should be observed, to the extent that they protect behavior that may
be frowned upon by the majority. (Concerned Employee vs. Mayor, 443 SCRA 448 [2004])
 ——o0o——

126
 G.R. No. 164785.  April 29, 2009.*
ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity
as Chairperson of the Movie and Television Review and Classification Board, MOVIE
AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON,
ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO
SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A.
GAVINO, respondents.
G.R. No. 165636.  April 29, 2009.*
ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of
the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA,
JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants
before the MTRCB, respondents.
Administrative Law; Movie and Television Review and Classification Board (MTRCB);
Powers of an administrative agency is ascertained from the law itself which is liberally
construed. Movie and Television Review and Classification Board (MTRCB) has the power to
issue a preventive suspension order.—Administrative agencies have powers and functions
which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a
mix of the five, as may be conferred by the Constitution or by statute. They have in fine only
such powers or authority as are granted or delegated, expressly or impliedly, by law. And in
determining whether an agency has certain powers, the inquiry should be from the law itself.
But once ascertained as existing, the authority given should be liberally construed. A perusal
of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this
authority stems naturally from, and is necessary for the exercise of, its power of regulation
and supervision.
Same; Same; Jurisdiction; Administrative Agencies. —But the mere absence of a
provision on preventive suspension in PD 1986, without more, would not work to deprive the
MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise television programs to obviate the
exhibition or broadcast of, among others, indecent or immoral materials and to impose
sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary
to petitioner’s assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor
extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension was
actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB’s duty of
regulating or supervising television programs, pending a determination of whether or not there
has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely
formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Same; Same; Same; Movie and Television Review and Classification Board’s (MTRCB’s)
power to issue a preventive suspension order includes TV programs.—We cannot agree with
petitioner’s assertion that the aforequoted IRR provision on preventive suspension is
applicable only to motion pictures and publicity materials. The scope of the MTRCB’s authority
extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with
the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be
rendered ineffective should it be subject to the restrictions petitioner envisages.
Same; Same; Due Process; Movie and Television Review and Classification Board
(MTRCB) issued the assailed order after a hearing.—Just as untenable is petitioner’s argument
on the nullity of the preventive suspension order on the ground of lack of hearing. As it were,
the MTRCB handed out the assailed order after petitioner, in response to a written notice,
appeared before that Board for a hearing on private respondents’ complaint. No less than
petitioner admitted that the order was issued after the adjournment of the hearing, proving
that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD
1986, preventive suspension shall issue “[a]ny time during the pendency of the case.” In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly
violated PD 1986 and of administrative complaints that had been filed against him for such
violation.
Evidence; Constitutional Law; Petitioner has not been denied the equal protection of the
law as the Iglesia Ni Cristo (INC) ministers he criticized are not facing any administrative
charges.—Petitioner’s position does not persuade. The equal protection clause demands that
“all persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed.” It guards against undue
favor and individual privilege as well as hostile discrimination. Surely, petitioner cannot, under
the premises, place himself in the same shoes as the INC ministers, who, for one, are not
facing administrative complaints before the MTRCB. For another, he offers no proof that the
said ministers, in their TV programs, use language similar to that which he used in his own,
necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive
suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need
not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one
hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the
purview of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
      Same; Same; Religious Freedom; Plain and simple insults to another person cannot
be elevated to the status of a religious speech. —There is nothing in petitioner’s statements
subject of the complaints expressing any particular religious belief, nothing furthering his
avowed evangelical mission. The fact that he came out with his statements in a televised bible
exposition program does not automatically accord them the character of a religious discourse.
Plain and simple insults directed at another person cannot be elevated to the status of
religious speech. Even petitioner’s attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language used in
retaliation as religious speech. We cannot accept that petitioner made his statements in
defense of his reputation and religion, as they constitute no intelligible defense or refutation of
the alleged lies being spread by a rival religious group. They simply illustrate that petitioner
had descended to the level of name-calling and foul-language discourse. Petitioner could have
chosen to contradict and disprove his detractors, but opted for the low road.
Same; Same; Same; A TV program rated “G” or for general viewership reaches adults
and children alike. What may not be obscene speech to adults may be considered obscene for
children.—A cursory examination of the utterances complained of and the circumstances of
the case reveal that to an average adult, the utterances “Gago ka talaga x x x, masahol ka pa
sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay
Michael ang gumagana ang itaas, o di ba!”  may not constitute obscene but merely indecent
utterances. They can be viewed as figures of speech or merely a play on words. In the context
they were used, they may not appeal to the prurient interests of an adult. The problem with
the challenged statements is that they were uttered in a TV program that is rated “G” or for
general viewership, and in a time slot that would likely reach even the eyes and ears of
children.
Same; Same; Same; Words and Phrases.—While adults may have understood that the
terms thus used were not to be taken literally, children could hardly be expected to have the
same discernment. Without parental guidance, the unbridled use of such language as that of
petitioner in a television broadcast could corrupt impressionable young minds. The term
“putang babae” means “a female prostitute,” a term wholly inappropriate for children, who
could look it up in a dictionary and just get the literal meaning, missing the context within
which it was used. Petitioner further used the terms, “ang gumagana lang doon yung
ibaba,”  making reference to the female sexual organ and how a female prostitute uses it in
her trade, then stating that Sandoval was worse than that by using his mouth in a similar
manner. Children could be motivated by curiosity and ask the meaning of what petitioner said,
also without placing the phrase in context. They may be inquisitive as to why Sandoval is
different from a female prostitute and the reasons for the dissimilarity. And upon learning the
meanings of the words used, young minds, without the guidance of an adult, may, from their
end, view this kind of indecent speech as obscene, if they take these words literally and use
them in their own speech or form their own ideas on the matter. In this particular case, where
children had the opportunity to hear petitioner’s words, when speaking of the average person
in the test for obscenity, we are speaking of the average child, not the average adult. The
average child may not have the adult’s grasp of figures of speech, and may lack the
understanding that language may be colorful, and words may convey more than the literal
meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its
function as such. In this sense, we find petitioner’s utterances obscene and not entitled to
protection under the umbrella of freedom of speech.
Same; Same; Same; Freedom of Speech; As a standard of limitation on freedom of
speech and press, the clear and present danger test is not a magic incantation. —It was
originally designed to determine the latitude which should be given to speech that espouses
anti-government action, or to have serious and substantial deleterious consequences on the
security and public order of the community. The clear and present danger rule has been
applied to this jurisdiction. As a standard of limitation on free speech and press, however, the
clear and present danger test is not a magic incantation that wipes out all problems and does
away with analysis and judgment in the testing of the legitimacy of claims to free speech and
which compels a court to release a defendant from liability the moment the doctrine is
invoked, absent proof of imminent catastrophic disaster. As we observed in Eastern
Broadcasting Corporation vs. Dans, Jr., 137 SCRA 628 (1985), the clear and present danger
test “does not lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums.”
Same; Same; Same; Same; The State has a compelling interest to protect minors,
against offensive language in TV programs.—The State has a compelling interest in extending
social protection to minors against all forms of neglect, exploitation, and immorality which may
pollute innocent minds. It has a compelling interest in helping parents, through regulatory
mechanisms, protect their children’s minds from exposure to undesirable materials and
corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated,
to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the
youth to better prepare them fulfill their role in the field of nation-building. In the same way,
the State is mandated to support parents in the rearing of the youth for civic efficiency and
the development of moral character. Petitioner’s offensive and obscene language uttered in a
television broadcast, without doubt, was easily accessible to the children. His statements could
have exposed children to a language that is unacceptable in everyday use. As such, the
welfare of children and the State’s mandate to protect and care for them, as parens patriae,
constitute a substantial and compelling government interest in regulating petitioner’s
utterances in TV broadcast as provided in PD 1986.
Same; Same; Same; The assailed order penalized petitioner for past speech, not future
speeches in a TV program. —Neither can petitioner’s virtual inability to speak in his program
during the period of suspension be plausibly treated as prior restraint on future speech. For
viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension
meted was simply part of the duties of the MTRCB in the enforcement and administration of
the law which it is tasked to implement. Viewed in its proper context, the suspension sought
to penalize past speech made on prime-time “G” rated TV program; it does not bar future
speech of petitioner in other television programs; it is a permissible subsequent administrative
sanction; it should not be confused with a prior restraint on speech. While not on all fours, the
Court, in MTRCB, sustained the power of the MTRCB to penalize a broadcast company for
exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of
PD 1986.
Same; Same; Same; Jurisdiction; Presidential Decree No. 1986 is constitutional; The
investiture of supervisory power would be meaningless if it did not carry with it the power to
penalize the supervised as may be proportionate to the offense proved. —Complementing this
provision is Sec. 3(k) of the decree authorizing the MTRCB “to exercise such powers and
functions as may be necessary or incidental to the attainment of the purpose and objectives of
[the law].” As earlier explained, the investiture of supervisory, regulatory, and disciplinary
power would surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged, and
proved.
Same; Same; Same; Same; Administrative regulation or subordinate legislation to
promote public interest is a necessity in modern life.—The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers. Administrative regulations or
“subordinate legislation” calculated to promote the public interest are necessary because of
“the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law.” Allowing the MTRCB some
reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary
functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending
mitigating or aggravating circumstances, as the case may be, would be consistent with its
mandate to effectively and efficiently regulate the movie and television industry.
Same; Same; Same; Same; Movie and Television Review and Classification Board
(MTRCB) may suspend a TV program but not its host.—But even as we uphold the power of
the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend
petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec.
3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the
Board empowered to suspend the program host or even to prevent certain people from
appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such
television programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise
of regulation beyond what the law provides. Only persons, offenses, and penalties clearly
falling clearly within the letter and spirit of PD 1986 will be considered to be within the
decree’s penal or disciplinary operation. And when it exists, the reasonable doubt must be
resolved in favor of the person charged with violating the statute and for whom the penalty is
sought. Thus, the MTRCB’s decision in Administrative Case No. 01-04 dated September 27,
2004 and the subsequent order issued pursuant to said decision must be modified. The
suspension should cover only the television program on which petitioner appeared and uttered
the offensive and obscene language, which sanction is what the law and the facts obtaining
call for.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and Prohibition.
   The facts are stated in the opinion of the Court.
  Leonard De Vera  for petitioner.
  Lazaro, Tuazon, Santos & Associates Law Offices  for private respondents.
VELASCO, JR., J.:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and Television
Review and Classification Board (MTRCB) in connection with certain utterances he made in his
television show, Ang Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating
Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O,
masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito.”1 x x x
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were
lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia
ni Cristo (INC),2 against petitioner in connection with the above broadcast. Respondent
Michael M. Sandoval, who felt directly alluded to in petitioner’s remark, was then a minister of
INC and a regular host of the TV program Ang Tamang Daan.3 Forthwith, the MTRCB sent
petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some
cuss words in the August 10, 2004 episode of Ang Dating Daan.4
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of
August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20
days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the
MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations
(IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.5 The same order also
set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication
board recuse themselves from hearing the case.6 Two days after, however, petitioner sought
to withdraw7 his motion for reconsideration, followed by the filing with this Court of a petition
for certiorari and prohibition,8 docketed as G.R. No. 164785, to nullify the preventive
suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing
as follows:
“WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
respondent Soriano liable for his utterances and thereby imposing on him a penalty of three
(3) months suspension from his program, “Ang Dating Daan”.
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.
SO ORDERED.”9
 Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No.
165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED
16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL
AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED
WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
I as are granted or delegated, expressly or impliedly, by law. 13 And in determining whether an
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS
IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER
THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSU-
ANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF
LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR
VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND
OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER
2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and veritably
been rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner’s threshold posture that the preventive suspension imposed against him and
the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly
authorize the MTRCB to issue preventive suspension.
Petitioner’s contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be
conferred by the Constitution or by statute. 12 They have in fine only such powers or authority
agency has certain powers, the inquiry should be from the law itself. But once ascertained as
existing, the authority given should be liberally construed.14
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise of, its
power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
“Section 3. Powers and Functions.—The BOARD shall have the following functions,
powers and duties:
xxxx
 c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x
production, x x x exhibition and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding paragraph, which, in the judgment
of the board applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed,
sold, leased, exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the
attainment of the purposes and objectives of this Act x x x.” (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB’s
authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d),
as quoted above, which empowers the MTRCB to “supervise, regulate, and grant, deny or
cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures,
television programs and publicity materials, to the end that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in accordance with paragraph
(c) hereof shall be x x x exhibited and/or broadcast by television.”
Surely, the power to issue preventive suspension forms part of the MTRCB’s express
regulatory and supervisory statutory mandate and its investigatory and disciplinary authority
subsumed in or implied from such mandate. Any other construal would render its power to
regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
preliminary step in an administrative investigation.15 And the power to discipline and impose
penalties, if granted, carries with it the power to investigate administrative complaints and,
during such investigation, to preventively suspend the person subject of the complaint.16
To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to
impose preventive suspension through the medium of the IRR of PD 1986. It is true that the
matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3,
Chapter XIII of the IRR provides:
“Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case,
and in order to prevent or stop further violations or for the interest and welfare of the public,
the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive
x x x suspension of the permit/permits involved, and/or closure of the x x x television network,
cable TV station x x x provided that the temporary/preventive order thus issued shall have a
life of not more than twenty (20) days from the date of issuance.
 
But the mere absence of a provision on preventive suspension in PD 1986, without more,
would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension.
Recall that the MTRCB is expressly empowered by statute to regulate and supervise television
programs to obviate the exhibition or broadcast of, among others, indecent or immoral
materials and to impose sanctions for violations and, corollarily, to prevent further violations
as it investigates. Contrary to petitioner’s assertion, the aforequoted Sec. 3 of the IRR neither
amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the
assailed preventive suspension, outrun its authority under the law. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCB’s duty of regulating or supervising television programs, pending a determination of
whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of
the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on
MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to
functions within the literal confines of the law, would give the agency little leeway to operate,
stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB
a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, “To exercise such
powers and functions as may be necessary or incidental to the attainment of the purposes and
objectives of this Act x x x.” Indeed, the power to impose preventive suspension is one of the
implied powers of MTRCB. As distinguished from express powers, implied powers are those
that can be inferred or are implicit in the wordings or conferred by necessary or fair
implication of the enabling act.17 As we held in Angara v. Electoral Commission, when a
general grant of power is conferred or a duty enjoined, every particular power necessary for
the exercise of one or the performance of the other is also conferred by necessary
implication.18 Clearly, the power to impose preventive suspension pending investigation is one
of the implied or inherent powers of MTRCB.
We cannot agree with petitioner’s assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The scope
of the MTRCB’s authority extends beyond motion pictures. What the acronym MTRCB stands
for would suggest as much.
And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with
the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be
rendered ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner’s argument on the nullity of the preventive suspension order
on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after
petitioner, in response to a written notice, appeared before that Board for a hearing on private
respondents’ complaint. No less than petitioner admitted that the order was issued after the
adjournment of the hearing,19 proving that he had already appeared before the MTRCB. Under
Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue “[a]ny time
during the pendency of the case.” In this particular case, it was done after MTRCB duly
apprised petitioner of his having possibly violated PD 1986 20 and of administrative complaints
that had been filed against him for such violation.21
At any event, that preventive suspension can validly be meted out even without a
hearing.22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer the
criticisms coming from the INC ministers.
Petitioner’s position does not persuade. The equal protection clause demands that “all
persons subject to legislation should be treated alike, under like circumstances and conditions
both in the privileges conferred and liabilities imposed.” 23 It guards against undue favor and
individual privilege as well as hostile discrimination. 24 Surely, petitioner cannot, under the
premises, place himself in the same shoes as the INC ministers, who, for one, are not facing
administrative complaints before the MTRCB. For another, he offers no proof that the said
ministers, in their TV programs, use language similar to that which he used in his own,
necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive
suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need
not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one
hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the
purview of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was
religious speech, adding that words like “putang babae” were said in exercise of his religious
freedom.
The argument has no merit.
The Court is at a loss to understand how petitioner’s utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section
reads as follows:
“No law shall be made respecting the establishment of a 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.”
There is nothing in petitioner’s statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The fact that he
came out with his statements in a televised bible exposition program does not automatically
accord them the character of a religious discourse. Plain and simple insults directed at another
person cannot be elevated to the status of religious speech. Even petitioner’s attempts to
place his words in context show that he was moved by anger and the need to seek retribution,
not by any religious conviction. His claim, assuming its veracity, that some INC ministers
distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious speech. We cannot accept that
petitioner made his statements in defense of his reputation and religion, as they constitute no
intelligible defense or refutation of the alleged lies being spread by a rival religious group.
They simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.
 Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue dovetails
with those challenging the three-month suspension imposed under the assailed September 27,
2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and
arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating
Daan for three months on the main ground that the decision violates, apart from his religious
freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the
Constitution, which reads:
“No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievance.”
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional
for reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion
pictures come within the broad protection of the free speech and expression clause. 25 Each
method though, because of its dissimilar presence in the lives of people and accessibility to
children, tends to present its own problems in the area of free speech protection, with
broadcast media, of all forms of communication, enjoying a lesser degree of protection.26 Just
as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial
injunction against publication or threat of cancellation of license/franchise, or subsequent
liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings,
are anathema to the freedom of expression. Prior restraint means official government
restrictions on the press or other forms of expression in advance of actual publication or
dissemination.27 The freedom of expression, as with the other freedoms encased in the Bill of
Rights, is, however, not absolute. It may be regulated to some extent to serve important
public interests, some forms of speech not being protected. As has been held, the limits of the
freedom of expression are reached when the expression touches upon matters of essentially
private concern.28 In the oft-quoted expression of Justice Holmes, the constitutional guarantee
“obviously was not intended to give immunity for every possible use of
language.”29 From Lucas v. Royo  comes this line: “[T]he freedom to express one’s sentiments
and belief does not grant one the license to vilify in public the honor and integrity of another.
Any sentiments must be expressed within the proper forum and with proper regard for the
rights of others.”30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 “there are certain well-
defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which  has never been thought to raise any Constitutional problems.” In net
effect, some forms of speech are not protected by the Constitution, meaning that restrictions
on unprotected speech may be decreed without running afoul of the freedom of speech
clause.32 A speech would fall under the unprotected type if the utterances involved are “no
essential part of any exposition of ideas, and are of such slight social value as a step of truth
that any benefit that may be derived from them is clearly outweighed by the social interest in
order and morality.”33 Being of little or no value, there is, in dealing with or regulating them,
no imperative call for the application of the clear and present danger rule or the balancing-of-
interest test, they being essentially modes of weighing competing values,34 or, with like effect,
determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography, false
or misleading advertisement, insulting or “fighting words,” i.e., those which by their very
utterance inflict injury or tend to incite an immediate breach of peace and expression
endangering national security.
The Court finds that petitioner’s statement can be treated as obscene, at least with respect
to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of
Appeals, the Court expressed difficulty in formulating a definition of obscenity that would
apply to all cases, but nonetheless stated the ensuing observations on the matter:
“There is no perfect definition of “obscenity” but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a
serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is “patently offensive.” x x x What remains clear is that obscenity is an issue
proper for judicial determination and should be treated on a case to case basis and on the
judge’s sound discretion.”35
Following the contextual lessons of the cited case of Miller v. California,36 a patently
offensive utterance would come within the pale of the term obscenity should it appeal to the
prurient interest of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case
reveal that to an average adult, the utterances “ Gago ka talaga x x x, masahol ka pa sa
putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay
Michael ang gumagana ang itaas, o di ba! ”  may not constitute obscene but merely indecent
utterances. They can be viewed as figures of speech or merely a play on words. In the context
they were used, they may not appeal to the prurient interests of an adult. The problem with
the challenged statements is that they were uttered in a TV program that is rated “G” or for
general viewership, and in a time slot that would likely reach even the eyes and ears of
children.
While adults may have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without parental guidance,
the unbridled use of such language as that of petitioner in a television broadcast could corrupt
impressionable young minds. The term “putang babae” means “a female prostitute,” a term
wholly inappropriate for children, who could look it up in a dictionary and just get the literal
meaning, missing the context within which it was used. Petitioner further used the terms,
“ang gumagana lang doon yung ibaba ,”  making reference to the female sexual organ and how
a female prostitute uses it in her trade, then stating that Sandoval was worse than that by
using his mouth in a similar manner. Children could be motivated by curiosity and ask the
meaning of what petitioner said, also without placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a female prostitute and the reasons for the
dissimilarity. And upon learning the meanings of the words used, young minds, without the
guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if
they take these words literally and use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the opportunity to hear petitioner’s
words, when speaking of the average person in the test for obscenity, we are speaking of the
average child, not the average adult. The average child may not have the adult’s grasp of
figures of speech, and may lack the understanding that language may be colorful, and words
may convey more than the literal meaning. Undeniably the subject speech is very suggestive
of a female sexual organ and its function as such. In this sense, we find petitioner’s utterances
obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioner’s remarks are not obscene but merely indecent speech,
still the Court rules that petitioner cannot avail himself of the constitutional protection of free
speech. Said statements were made in a medium easily accessible to children. With respect to
the young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different mediums
has emerged, this case is veritably one of first impression, it being the first time that indecent
speech communicated via television and the applicable norm for its regulation are, in this
jurisdiction, made the focal point. Federal Communications Commission  (FCC) v. Pacifica
Foundation,37 a 1978 American landmark case cited in Eastern Broadcasting Corporation v.
Dans, Jr.38 and Chavez v. Gonzales,39 is a rich source of persuasive lessons. Foremost of these
relates to indecent speech without prurient appeal component coming under the category of
protected speech depending on the context within which it was made, irresistibly suggesting
that, within a particular context, such indecent speech may validly be categorized as
unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered “filthy” words40 earlier recorded in a monologue by
a satiric humorist later aired in the afternoon over a radio station owned by Pacifica
Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as “patently offensive” and
“indecent” under a prohibiting law, though not necessarily obscene. FCC added, however,
that its declaratory order was issued in a “special factual context,” referring, in gist, to an
afternoon radio broadcast when children were undoubtedly in the audience. Acting on the
question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled
in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a
pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court,
however, hastened to add that the monologue would be protected speech in other contexts,
albeit it did not expound and identify a compelling state interest in putting FCC’s content-
based regulatory action under scrutiny.
The Court in Chavez41 elucidated on the distinction between regulation or restriction of
protected speech that is content-based and that which is content-neutral. A content-based
restraint is aimed at the contents or idea of the expression, whereas a content-neutral
restraint intends to regulate the time, place, and manner of the expression under well-defined
standards tailored to serve a compelling state interest, without restraint on the message of the
expression. Courts subject content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the backdrop
of the following interplaying factors: First, the indecent speech was made via television, a
pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,42 easily “reaches every
home where there is a set [and where] [c]hildren will likely be among the avid viewers of the
programs therein shown”; second, the broadcast was aired at the time of the day when there
was a reasonable risk that children might be in the audience; and third, petitioner uttered his
speech on a “G” or “for general patronage” rated program. Under Sec. 2(A) of Chapter IV of
the IRR of the MTRCB, a show for general patronage is “[s]uitable for all ages,” meaning that
the “material for television x x x in the judgment of the BOARD, does not contain anything
unsuitable for children and minors, and may be viewed without adult guidance or supervision.”
The words petitioner used were, by any civilized norm, clearly not suitable for children. Where
a language is categorized as indecent, as in petitioner’s utterances on a general-patronage
rated TV program, it may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography,43 false or
misleading advertisement,44 advocacy of imminent lawless action, and expression endangering
national security. But this list is not, as some members of the Court would submit, exclusive or
carved in stone. Without going into specifics, it may be stated without fear of contradiction
that US decisional law goes beyond the aforesaid general exceptions. As the Court has been
impelled to recognize exceptions to the rule against censorship in the past, this particular case
constitutes yet another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech, petitioner’s
utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be grave and
imminent. 45
Petitioner’s invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test is
uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords
protection for utterances so that the printed or spoken words may not be subject to prior
restraint or subsequent punishment unless its expression creates a clear and present danger
of bringing about a substantial evil which the government has the power to prohibit. 46 Under
the doctrine, freedom of speech and of press is susceptible of restriction when and only when
necessary to prevent grave and immediate danger to interests which the government may
lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion
and other crimes involving the overthrow of government.47 It was originally designed to
determine the latitude which should be given to speech that espouses anti-government action,
or to have serious and substantial deleterious consequences on the security and public order
of the community. 48 The clear and present danger rule has been applied to this
jurisdiction.49 As a standard of limitation on free speech and press, however, the clear and
present danger test is not a magic incantation that wipes out all problems and does away with
analysis and judgment in the testing of the legitimacy of claims to free speech and which
compels a court to release a defendant from liability the moment the doctrine is invoked,
absent proof of imminent catastrophic disaster.50 As we observed in Eastern Broadcasting
Corporation, the clear and present danger test “does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.”51
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of
the government and even other evils which do not clearly undermine national security. Since
not all evils can be measured in terms of “proximity and degree” the Court, however, in
several cases—Ayer Productions v. Capulong52 and Gonzales v. COMELEC,53 applied the
balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC,
elucidated in his Separate Opinion that “where the legislation under constitutional attack
interferes with the freedom of speech and assembly in a more generalized way and where the
effect of the speech and assembly in terms of the probability of realization of a specific danger
is not susceptible even of impressionistic calculation,” 54 then the “balancing of interests” test
can be applied.
The Court explained also in Gonzales v. COMELEC  the “balancing of interests” test:
 “When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the greater protection under the
particular circumstances presented. x x x We must, therefore, undertake the “delicate and
difficult task x x x to weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of rights x x x.”
In enunciating standard premised on a judicial balancing of the conflicting social values
and individual interests competing for ascendancy in legislation which restricts expression, the
court in Douds laid the basis for what has been called the “balancing-of-interests” test which
has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the
“balancing” test requires a court to take conscious and detailed consideration of the interplay
of interests observable in a given situation or type of situation.
xxxx
Although the urgency of the public interest sought to be secured by Congressional power
restricting the individual’s freedom, and the social importance and value of the freedom so
restricted, “are to be judged in the concrete, not on the basis of abstractions,” a wide range of
factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these
are (a) the social value and importance of the specific aspect of the particular freedom
restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the
restriction is direct or indirect, whether or not the persons affected are few; (c) the value and
importance of the public interest sought to be secured by the legislation––the reference here
is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably appropriate and necessary for the
protection of such public interest; and (e) whether the necessary safeguarding of the public
interest involved may be achieved by some other measure less restrictive of the protected
freedom.55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory that
it is the court’s function in a case before it when it finds public interests served by legislation,
on the one hand, and the free expression clause affected by it, on the other, to balance one
against the other and arrive at a judgment where the greater weight shall be placed. If, on
balance, it appears that the public interest served by restrictive legislation is of such nature
that it outweighs the abridgment of freedom, then the court will find the legislation valid. In
short, the balance-of-interests theory rests on the basis that constitutional freedoms are not
absolute, not even those stated in the free speech and expression clause, and that they may
be abridged to some extent to serve appropriate and important interests. 57 To the mind of the
Court, the balancing of interest doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech is ranged against the duty of the
government to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in
support of his claim to free speech, the Court rules that the government’s interest to protect
and promote the interests and welfare of the children adequately buttresses the reasonable
curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang
Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the
freedom of speech or expression, for without the enjoyment of such right, a free, stable,
effective, and progressive democratic state would be difficult to attain. Arrayed against the
freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social
being which the State is constitutionally tasked to promote and protect. Moreover, the State is
also mandated to recognize and support the vital role of the youth in nation building as laid
down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by the
Constitutional Commission, explained that the State shall “extend social protection to minors
against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster
racial, religious or other forms of discrimination.”58
Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It
has a compelling interest in helping parents, through regulatory mechanisms, protect their
children’s minds from exposure to undesirable materials and corrupting experiences. The
Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the
physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare
them fulfill their role in the field of nation-building. 59 In the same way, the State is mandated
to support parents in the rearing of the youth for civic efficiency and the development of
moral character.60
Petitioner’s offensive and obscene language uttered in a television broadcast, without
doubt, was easily accessible to the children. His statements could have exposed children to a
language that is unacceptable in everyday use. As such, the welfare of children and the State’s
mandate to protect and care for them, as parens patriae,61 constitute a substantial and
compelling government interest in regulating petitioner’s utterances in TV broadcast as
provided in PD 1986.
FCC  explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by
offensive language, thus:
“[B]roadcasting is uniquely accessible to children, even those too young to read. Although
Cohen’s written message, [“Fuck the Draft”], might have been incomprehensible to a first
grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms
of offensive expression may be withheld from the young without restricting the expression at
its source. Bookstores and motion picture theaters, for example, may be prohibited from
making indecent material available to children. We held in Ginsberg v. New York that the
government’s interest in the “well-being of its youth” and in supporting “parents’ claim to
authority in their own household” justified the regulation of otherwise protected expression.
The ease with which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.”
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to
the welfare of the young:
“x x x It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the patrons
have to pay their way, television reaches every home where there is a set. Children then will
likely will be among the avid viewers of the programs therein shown. As was observed by
Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with
the sexual fantasies of the adult population. It cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the
young.”62
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the
TV broadcast grounded on the following considerations: (1) the use of television with its
unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2)
the time of broadcast; and (3) the “G” rating of the Ang Dating Daan  program. And in
agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts
from FCC:
“It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case
does not involve a two-way radio conversation between a cab driver and a dispatcher, or a
telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either
setting would justify any sanction. x x x The [FFC’s] decision rested entirely on a nuisance
rationale under which context is all important. The concept requires consideration of a host of
variables. The time of day was emphasized by the [FFC]. The content of the program in which
the language is used will affect the composition of the audience x x x. As Mr. Justice
Sutherland wrote a ‘nuisance may be merely a right thing in the wrong place, like a pig in the
parlor instead of the barnyard.’ We simply hold that when the [FCC] finds that a pig has
entered the parlor, the exercise of its regulatory power does not depend on proof that the pig
is obscene.” (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986
proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind
of speech that the State has the inherent prerogative, nay duty, to regulate and prevent
should such action served and further compelling state interests. One who utters indecent,
insulting, or offensive words on television when unsuspecting children are in the audience is,
in the graphic language of FCC, a “pig in the parlor.” Public interest would be served if the
“pig” is reasonably restrained or even removed from the “parlor.”
Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language
in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are
movies, television, and radio broadcast censorship in view of its access to numerous people,
including the young who must be insulated from the prejudicial effects of unprotected speech.
PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now
MTRCB) and which requires prior permit or license before showing a motion picture or
broadcasting a TV program. The Board can classify movies and television programs and can
cancel permits for exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
“We thus reject petitioner’s postulate that its religious program is per se beyond review by
the respondent Board. Its public broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches even the eyes and ears of
children. The Court iterates the rule that the exercise of religious freedom can be regulated by
the State when it will bring about the clear and present danger of some substantive evil which
the State is duty bound to prevent,  i.e., serious detriment to the more overriding interest of
public health, public morals, or public welfare. x x x
x x x x”
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview
and classify TV programs and enforce its decision subject to review by our courts. As far back
as 1921, we upheld this setup in Sotto vs. Ruiz, viz.:
“The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail
anything they please, regardless of its character.”63
Bernas adds:
“Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what movies
are “immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people,” and what “tend to incite subversion, insurrection,
rebellion or sedition,” or “tend to undermine the faith and confidence of the people in their
government and/or duly constituted authorities,” etc. Moreover, its decisions are executory
unless stopped by a court.”64
 Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of
review and prior approval of MTRCB extends to all television programs and is valid despite the
freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated
by the MTRCB since they are required to get a permit before they air their television
programs. Consequently, their right to enjoy their freedom of speech is subject to that
requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through
the MTRCB became “a necessary evil” with the go
vernment taking the role of assigning bandwidth to individual broadcasters. The stations
explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television
broadcast industry as competing broadcasters will interfere or co-opt each other’s signals. In
this scheme, station owners and broadcasters in effect waived their right to the full enjoyment
of their right to freedom of speech in radio and television programs and impliedly agreed that
said right may be subject to prior restraint—denial of permit or subsequent punishment, like
suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued
to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible
administrative sanction or subsequent punishment for the offensive and obscene remarks he
uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a
sanction that the MTRCB may validly impose under its charter without running afoul of the
free speech clause. And the imposition is separate and distinct from the criminal action the
Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by
the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches,
the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting
does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is
not per se for petitioner’s exercise of his freedom of speech via television, but for the indecent
contents of his utterances in a “G” rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his
freedom of speech to regulation under PD 1986 and its IRR as television station owners,
program producers, and hosts have impliedly accepted the power of MTRCB to regulate the
broadcast industry.
Neither can petitioner’s virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its proper
perspective, the suspension is in the nature of an intermediate penalty for uttering an
unprotected form of speech. It is definitely a lesser punishment than the permissible
cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was
simply part of the duties of the MTRCB in the enforcement and administration of the law which
it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past
speech made on prime-time “G” rated TV program; it does not bar future speech of petitioner
in other television programs; it is a permissible subsequent administrative sanction; it should
not be confused with a prior restraint on speech. While not on all fours, the Court,
in MTRCB,66 sustained the power of the MTRCB to penalize a broadcast company for
exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of
PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of indecent
or obscene speech in a “G” rated program is not acceptable. As made clear in Eastern
Broadcasting Corporation, “the freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and print media.” The MTRCB, as a
regulatory agency, must have the wherewithal to enforce its mandate, which would not be
effective if its punitive actions would be limited to mere fines. Television broadcasts should be
subject to some form of regulation, considering the ease with which they can be accessed,
and violations of the regulations must be met with appropriate and proportional disciplinary
action. The suspension of a violating television program would be a sufficient punishment and
serve as a deterrent for those responsible. The prevention of the broadcast of petitioner’s
television program is justified, and does not constitute prohibited prior restraint. It behooves
the Court to respond to the needs of the changing times, and craft jurisprudence to reflect
these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the
very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his
freedom of religion. The Court has earlier adequately explained why petitioner’s undue
reliance on the religious freedom cannot lend justification, let alone an exempting dimension
to his licentious utterances in his program. The Court sees no need to address anew the
repetitive arguments on religious freedom. As earlier discussed in the disposition of the
petition in G.R. No. 164785, what was uttered was in no way a religious speech.
Parenthetically, petitioner’s attempt to characterize his speech as a legitimate defense of his
religion fails miserably. He tries to place his words in perspective, arguing evidently as an
afterthought that this was his method of refuting the alleged distortion of his statements by
the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television
program, the word simply came out as profane language, without any warning or guidance for
undiscerning ears.
As to petitioner’s other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar arguments in
G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded
due process when he attended the hearing of the MTRCB, and that he was unable to
demonstrate that he was unjustly discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD
1986 does not provide for the range of imposable penalties that may be applied with respect
to violations of the provisions of the law.
The argument is without merit.
 In Edu v. Ericta,  the Court discussed the matter of undue delegation of legislative power in
the following wise:
“It is a fundamental principle flowing from the doctrine of separation of powers that
Congress may not delegate its legislative power to the two other branches of the government,
subject to the exception that local governments may over local affairs participate in its
exercise. What cannot be delegated is the authority under the Constitution to make laws and
to alter and repeal them; the test is the completeness of the statute in all its term and
provisions when it leaves the hands of the legislature. To determine whether or not there is an
undue delegation of legislative power, the inquiry must be directed to the scope and
definiteness of the measure enacted. The legislature does not abdicate its functions when it
describes what job must be done, who is to do it, and what is the scope of his authority. For a
complex economy, that may indeed be the only way in which the legislative process can go
forward. A distinction has rightfully been made between delegation of power to make laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be
done, and delegation of authority or discretion as to its execution to be exercised under and in
pursuance of the law, to which no valid objection can be made. The Constitution is thus not to
be regarded as denying the legislature the necessary resources of flexibility and practicability.”
To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down fundamental
policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus
defines legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the
executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioner’s
protestation about undue delegation of legislative power for the sole reason that PD 1986
does not provide for a range of penalties for violation of the law is untenable. His thesis is that
MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation
of the provisions of the decree, went beyond the terms of the law.
Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB
to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by
express and direct conferment of power and functions, is charged with supervising and
regulating, granting, denying, or canceling permits for the exhibition and/or television
broadcast of all motion pictures, television programs, and publicity materials to the end that
no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast
by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB
“to exercise such powers and functions as may be necessary or incidental to the attainment of
the purpose and objectives of [the law].” As earlier explained, the investiture of supervisory,
regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with
it the power to penalize the supervised or the regulated as may be proportionate to the
offense committed, charged, and proved. As the Court said in Chavez v. National Housing
Authority:
“x x x [W]hen a general grant of power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance of the other is also conferred.
x x x [W]hen the statute does not specify the particular method to be followed or used by a
government agency in the exercise of the power vested in it by law, said agency has the
authority to adopt any reasonable method to carry out its function.”68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily implies the
authority to take effective punitive action for violation of the law sought to be enforced. And
would it not be logical too to say that the power to deny or cancel a permit for the exhibition
of a TV program or broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power “[to] promulgate such rules and regulations as
are necessary or proper for the implementation of this Act, and the accomplishment of its
purposes and objectives x x x.” And Chapter XIII, Sec. 1 of the IRR providing:
“Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the
immediate filing of the appropriate criminal action and the immediate seizure of the pertinent
articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules
and Regulations governing motion pictures, television programs, and related
promotional materials shall be penalized with suspension or cancellation of
permits and/or licenses issued by the Board and/or with the imposition of fines and
other administrative penalty/penalties. The Board recognizes the existing Table of
Administrative Penalties attached without prejudice to the power of the Board to amend it
when the need arises. In the meantime the existing revised Table of Administrative Penalties
shall be enforced.” (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does
not expand the mandate of the MTRCB under the law or partake of the nature of an
unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate
the public airwaves and employ such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The
MTRCB may evaluate motion pictures, television programs, and publicity materials “applying
contemporary Filipino cultural values as standard,” and, from there, determine whether these
audio and video materials “are objectionable for being immoral, indecent, contrary to law
and/or good customs, [etc.] x x x” and apply the sanctions it deems proper. The lawmaking
body cannot possibly provide for all the details in the enforcement of a particular
statute.69 The grant of the rule-making power to administrative agencies is a relaxation of the
principle of separation of powers and is an exception to the non-delegation of legislative
powers.70 Administrative regulations or “subordinate legislation” calculated to promote the
public interest are necessary because of “the growing complexity of modern life, the SO ORDERED.
multiplication of the subjects of governmental regulations, and the increased difficulty of
administering the law.”71 Allowing the MTRCB some reasonable elbow-room in its operations Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, Morales, Tinga, Chico-Nazario, Nachura, Leonardo-De Castro, Brion  and Peralta, JJ.,  concur.
by way of an appropriate issuance, administrative penalties with due regard for the severity of
the offense and attending mitigating or aggravating circumstances, as the case may be, would
be consistent with its mandate to effectively and efficiently regulate the movie and television
industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that
issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative
Penalties effective January 1, 1999 is the Board empowered to suspend the program host or
even to prevent certain people from appearing in television programs. The MTRCB, to be sure,
may prohibit the broadcast of such television programs or cancel permits for exhibition, but it
may not suspend television personalities, for such would be beyond its jurisdiction. The
MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons,
offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be
considered to be within the decree’s penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating the statute
and for whom the penalty is sought. Thus, the MTRCB’s decision in Administrative Case No.
01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision
must be modified. The suspension should cover only the television program on which
petitioner appeared and uttered the offensive and obscene language, which sanction is what
the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in

which absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply utter
gutter profanity on television without adverse consequences, under the guise of free speech,
does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and
expression are not absolute freedoms. To say “any act that restrains speech should be greeted
with furrowed brows” is not to say that any act that restrains or regulates speech or
expression is per se  invalid. This only recognizes the importance of freedoms of speech and
expression, and indicates the necessity to carefully scrutinize acts that may restrain or
regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27,
2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the
program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:

“WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a

penalty of THREE (3) MONTHS SUSPENSION on the television program,   Ang Dating
Daan, subject of the instant petition.”

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.”

Costs against petitioner.

 A.M. No. 02-2-10-SC. December 14, 2005.*
RE: REQUEST OF MUSLIM EMPLOYEES IN THE DIFFERENT COURTS IN ILIGAN CITY
(RE: OFFICE HOURS)
Court Personnel; Public Offices; Freedom of Religion; The recommendation of the Court
Administrator with respect to the matter of allowing the Muslim employees in the Judiciary to
hold flexible office hours from 7:30 a.m. to 3:30 p.m. without break during the month of
Ramadan is well taken.—The recommendation of the Court Administrator with respect to the
matter of allowing the Muslim employees in the Judiciary to hold flexible office hours from
7:30 a.m. to 3:30 p.m. without break during the month of Ramadan is well taken. The same
has statutory basis in Section 3(a) of P.D. No. 291, as amended by P.D. No. 322, which
categorically states that “[d]uring the fasting season in the month of Ramadan, all Muslim
employees in the national government, government-owned or controlled corporations,
provinces, cities, municipalities and other instrumentalities shall observe office hours from
seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without
lunch break or coffee breaks, and that there shall be no diminution of salary or wages . . .”
Same; Same; Same; The Court is constrained to deny for lack of statutory basis the
request of the Muslim employees to be excused from work from 10:00 a.m. to 2:00 p.m.
every Friday to allow them to attend the Muslim Prayer Day .—The Court, however, is
constrained to deny for lack of statutory basis the request of the Muslim employees to be
excused from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to attend the
Muslim Prayer Day. As correctly observed by Atty. Edna Diño, Chief, Office of the Court
Attorney, in her Report dated May 13, 2005, the CSC exceeded its authority insofar as it
declared in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim employees are
excused from work from 10:00 a.m. to 2:00 p.m. every Friday subject to certain conditions.
CSC Resolution No. 81-1277 was purportedly issued pursuant to Sections 2 and 5 of P.D. No.
291, as amended by P.D. No. 322, but neither of the two decrees mention “Friday, the Muslim
Prayer Day” as one of the recognized holidays.
Same; Same; Same; The right to religious profession and worship has a two-fold
aspect, viz., freedom to believe and freedom to act on one’s beliefs—the first is absolute as
long as the belief is confined within the realm of thought but the second is subject to
regulation where belief is translated into external acts that affect the public welfare.—The
Court is not unmindful that the subject requests are grounded on Section 5, Article III of the
Constitution: No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The 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 and political rights. This provision contains two aspects: (1) the non-
establishment clause; and (2) the free exercise clause. The subject requests are based on the
latter and in interpreting this clause (the free exercise clause) embodied in the Constitution,
the Court has consistently adhered to the doctrine that: The right to religious profession and
worship has a two-fold aspect, viz., freedom to believe and freedom to act on one’s beliefs.
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.
Same; Same; Same; The need of the State to prescribe government office hours as well
as to enforce them uniformly to all civil servants cannot be disregarded.—The Court
recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is integral to
the Islamic faith. However, while the observance of Ramadan and allowing the Muslim
employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without
any break during the month of Ramadan finds support in Section 3 (a) of P.D. No. 291, as
amended by P.D. No. 322, there is no such basis to excuse them from work from 10:00 a.m.
to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire calendar year. On the
other hand, the need of the State to prescribe government office hours as well as to enforce
them uniformly to all civil servants, Christians and Muslims alike, cannot be disregarded.
Underlying Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.O. No. 292 is
the interest of the general public to be assured of continuous government service during office
hours every Monday through Friday. The said rule enjoins all civil servants, of whatever
religious denomination, to render public service of no less than eight hours a day or forty (40)
hours a week.
Same; Same; Same; To allow the Muslim employees in the Judiciary to be excused from
work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire
calendar year would mean a diminution of the prescribed government working hours—the
performance of religious practices, whether by the Muslim employees or those belonging to
other denominations, should not prejudice the court and the public .—To allow the Muslim
employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every
Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the
prescribed government working hours. For then, they would be rendering service twelve (12)
hours less than that required by the civil service rules for each month. Further, this would
encourage other religious denominations to request for similar treatment. The performance of
religious practices, whether by the Muslim employees or those belonging to other religious
denominations, should not prejudice the courts and the public. Indeed, the exercise of
religious freedom does not exempt anyone from compliance with reasonable requirements of
the law, including civil service laws.
Same; Same; Same; Separation of Powers; The remedy of the Muslim employees, with
respect to their request to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday
during the entire calendar year, is legislative .—The remedy of the Muslim employees, with
respect to their request to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday
during the entire calendar year, is legislative, which is to ask Congress to enact a legislation
expressly exempting them from compliance with the prescribed government working hours.
ADMINISTRATIVE MATTER in the Supreme Court. Request to be Allowed to Hold Office from
7:30 a.m. to 3:30 p.m. Without Lunch Break or Coffee Break During the Month of Ramadan
and to be Excused from Work from 10:00 a.m. to 2:00 p.m. Every Friday During the Entire
Calendar Year.
The facts are stated in the resolution of the Court.
RESOLUTION
CALLEJO, SR., J.:
In their Letter dated November 19, 2001 addressed to Executive Judge Valerio M. Salazar,
Regional Trial Court of Iligan City, several Muslim employees in the different courts in the said
city request that they be allowed to enjoy the following privileges:
1.to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee
breaks during the month of Ramadan;
2.to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer
Day) during the entire calendar year.
Judge Salazar forwarded the said letter-request to the Office of the Court Administrator (OCA).
Judge Salazar expressed his conformity with the first request, i.e., allowing them to hold office
from 7:30 a.m. to 3:30 p.m. without any break during the month of Ramadan. However, he
expressed some misgivings about the second request, i.e., excusing them from work from
10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year.
In support of their requests, the Muslim employees invoke Presidential Decree (P.D.) No.
2911 as amended by P.D. No. 3222 enacted by then President Ferdinand E. Marcos. The
avowed purpose of P.D. No. 291 was to reinforce national unity by recognizing Muslim
holidays and making them part of our national holidays. Section 2 thereof, as amended by
P.D. No. 322, provides that the following are recognized Muslim holidays:
a.Eid-ul-Fitr (Hariraya Puasa)—which falls on the 1st day of the lunar month of Shawwal
commemorating the end of the fasting season;
b.Eid-ul-Adha (Hariraya Haj)—which falls on the 10th day of the 12th Lunar month of Zul
Hajj;
c.Mauledan Nabi—Birthday of Prophet Mohammad (P.B.U.H), which falls on the 12th day
of the 3rd Lunar month of Rabbiol-Awwal;
d.Lailatul Isra Wal Miraj—(Ascension) which falls on the 27th day of the 8th Lunar month
of Rajjab;
e.Muharram (Ashura)—which falls on the 10th Lunar month of Muharram; and
f.Amon Jaded (New Year)—which falls on the 1st day of the 1st Lunar month of
Muharram.
Muslims employees in the government are excused from reporting to office during these
holidays in order that they may be able to properly observe them.
Section 3 of the same law, as amended by P.D. No. 322, further provides that:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the
national government, government-owned or controlled corporations, provinces, cities,
municipalities and other instrumentalities shall observe office hours from seven-thirty in the
morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee
breaks, and that there shall be no diminution of salary or wages, provided, that the employee
who is not fasting is not entitled to the benefit of this provision.
(b) Regulations for the implementation of this section shall be issued together with the
implementing directives on Muslim holidays.
Pursuant thereto, the Civil Service Commission (CSC) promulgated Resolution No. 81-1277
dated November 13, 1981 which states in part:
2.During “Ramadan” the Fasting month (30 days) of the Muslims, the Civil Service official
time of 8 o’clock to 12 o’clock and 1 o’clock to 5 o’clock is hereby modified to 7:30 A.M.
to 3:30 P.M. without noon break and the difference of 2 hours is not counted as
undertime;
3.During Friday, the Muslim pray day, Muslims are excused from work from 10 o’clock in
the morning to 2 o’clock in the afternoon.
Moreover, in its Resolution No. 00-0227 dated January 26, 2000, the CSC clarified that the
term “Friday” in the above resolution is not limited to the Fridays during the month
of Ramadan, but refers to “all Fridays of the calendar year.” However, in order not to run afoul
of Section 5,3 Rule XVII of the Omnibus Rules Implementing Book V of Executive Order (E.O.)
No. 2924 which enjoins civil servants to render public service not less than eight hours a day
or forty (40) hours a week, the CSC prescribes the adoption of a flexible working schedule to
accommodate the Muslims’ Friday Prayer Day subject to certain conditions, e.g., the flexible
working hours shall not start earlier than 7:00 a.m. and end not later than 7:00 p.m.
In the Resolution dated October 1, 2002, the Court required the Court Administrator to
study the matter. In compliance therewith, Court Administrator Presbitero J. Velasco, Jr.
recommends that the Muslim employees in the Judiciary be allowed to hold flexible office
hours from 7:30 a.m. to 3:30 p.m. without break during the month of Ramadan. Further, that
they be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to attend
the Muslim Prayer Day. However, to compensate for the lost hours, they should be required to
observe flexible working schedule which should start from 7:00 a.m. to 10:00 a.m. and from
2:00 p.m. to 7:00 p.m. every Friday. In that way, the working hours mandated by the civil
service rules is complied with.
The recommendation of the Court Administrator with respect to the matter of allowing the
Muslim employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m.
without break during the month of Ramadan is well taken. The same has statutory basis in
Section 3 (a) of P.D. No. 291, as amended by P.D. No. 322, which categorically states that
“[d]uring the fasting season in the month of Ramadan, all Muslim employees in the national
government, government-owned or controlled corporations, provinces, cities, municipalities
and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30
a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and
that there shall be no diminution of salary or wages. . .”
The Court, however, is constrained to deny for lack of statutory basis the request of the
Muslim employees to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to
allow them to attend the Muslim Prayer Day. As correctly observed by Atty. Edna Diño, Chief,
Office of the Court Attorney, in her Report dated May 13, 2005, the CSC exceeded its authority
insofar as it declared in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim
employees are excused from work from 10:00 a.m. to 2:00 p.m. every Friday subject to
certain conditions. CSC Resolution No. 81-1277 was purportedly issued pursuant to Sections 2
and 5 of P.D. No. 291, as amended by P.D. No 322, but neither of the two decrees mention
“Friday, the Muslim Prayer Day” as one of the recognized holidays.
The Court is not unmindful that the subject requests are grounded on Section 5, Article III
of the Constitution:
“No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The 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 and political rights.”
This provision contains two aspects: (1) the non-establishment clause; and (2) the free
exercise clause. The subject requests are based on the latter and in interpreting this clause
(the free exercise clause) embodied in the Constitution, the Court has consistently adhered to
the doctrine that:
“The right to religious profession and worship has a two-fold aspect, viz., freedom to believe
and freedom to act on one’s beliefs. 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.”6
Justice Isagani A. Cruz explained these two concepts in this wise:
. (1)Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may
indulge his own theories about life and death; worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the divinity of God or of any being that appeals
to his reverence; recognize or deny the immortality of his soul—in fact, cherish any religious
conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if
they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He
may not be required to prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. “Men may believe what they cannot prove.” Every one
has a right to his beliefs and he may not be called to account because he cannot prove what
he believes.
. (2)Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public,
his freedom to do so becomes subject to the authority of the State. As great as this liberty
may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed
only with a proper regard for the rights of others. It is error to think that the mere invocation
of religious freedom will stalemate the State and render it impotent in protecting the general
welfare. The inherent police power can be exercised to prevent religious practices inimical to
society. And this is true even if such practices are pursued out of sincere religious conviction
and not merely for the purpose of evading the reasonable requirements or prohibitions of the
law.
Justice Frankfurter put it succinctly: The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.”7
The Court recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is
integral to the Islamic faith. However, while the observance of Ramadan and allowing the
Muslim employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m.
without any break during the month of Ramadan finds support in Section 3 (a) of P.D. No.
291, as amended by P.D. No. 322, there is no such basis to excuse them from work from
10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire calendar year.
On the other hand, the need of the State to prescribe government office hours as well as
to enforce them uniformly to all civil servants, Christians and Muslims alike, cannot be
disregarded. Underlying Section 5,8 Rule XVII of the Omnibus Rules Implementing Book V of
E.O. No. 292 is the interest of the general public to be assured of continuous government
service during office hours every Monday through Friday. The said rule enjoins all civil
servants, of whatever religious denomination, to render public service of no less than eight
hours a day or forty (40) hours a week.
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m.
to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then, they would be rendering
service twelve (12) hours less than that required by the civil service rules for each month.
Further, this would encourage other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or those
belonging to other religious denominations, should not prejudice the courts and the public.
Indeed, the exercise of religious freedom does not exempt anyone from compliance with
reasonable requirements of the law, including civil service laws.
In fine, the remedy of the Muslim employees, with respect to their request to be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year, is
legislative, which is to ask Congress to enact a legislation expressly exempting them from
compliance with the prescribed government working hours.
 ACCORDINGLY, the Court resolved to:

1.GRANT the request to allow the Muslim employees in the Judiciary to hold office hours from
7:30 a.m. to 3:30 p.m. without break during the month of Ramadan pursuant to Section 3 (a)
of Presidential Decree No. 291, as amended by Presidential Decree No. 322; and

2.DENY for lack of legal basis the request that the Muslim employees in the Judiciary be
excused from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during
the entire calendar year.

SO ORDERED.

     Davide, Jr. (C.J.), Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario an
d Garcia, JJ., concur.

Request of Muslim employees in the Judiciary: (1) to hold office from 7:30 a.m. to 3:30
p.m. without break during the month of Ramadan granted; (2) request to be excused from
work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year denied for
lack of basis.

Notes.—The Free Exercise of Religion Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of religious materials by a religious organization.
(Tolentino vs. Secretary of Finance, 235 SCRA 630 [1994])

The entire history of church-state relations in Europe up to the time the United States
Constitution was adopted shows two salient features—first, with minor exceptions, the history
of church-state relationships was characterized by persecution, oppression, hatred, bloodshed,
and war, all in the name of the God of Love and of the Prince of Peace, and 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. (Estrada vs.
Escritor, 408 SCRA 1 [2003])

——o0o——

659
 G.R. No. 14639. March 25, 1919.] 10.ID.; RESTRAINT OF LIBERTY.—A prime specification of an application for a writ of
habeas corpus is restraint of liberty. The essential objects and purpose of the writ of
habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
ZACARIAS VILLAVICENCIO ET AL., petitioners, vs. JUSTO LUKBAN ET AL.,
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which
respondents.
will preclude freedom of action is sufficient.
1.CONSTITUTIONAL LAW; RlGHT OF DOMICILE; LlBERTY; HABEAS CORpus; CONTEMPT.
11.ID.; ID.—The forcible taking of these women from Manila by officials of that city, who
—One hundred and seventy women, who had lived in the segregated district for women
handed them over to other parties, who deposited them in a distant region, deprived
of ill repute in the city of Manila, were by orders of the Mayor of the city of Manila and
these women of freedom of locomotion just as effectively as if they had been imprisoned.
the chief of police of that city isolated from society and then at night, without their
The restraint of liberty which began in Manila continued until the aggrieved parties were
consent and without any opportunity to consult with friends or to defend their rights,
returned to Manila and released or until they freely and truly waived this right.
were forcibly hustled on board steamers for transportation to regions unknown. No law,
order, or regulation authorized the Mayor of the city of Manila or the chief of the police of
12.ID.; ID.—The true principle should be that if the respondent is within the jurisdiction
that city to force citizens of the Philippine Islands to change their domicile from Manila to
of the court and has it in his power to obey the order of the court, and thus to undo the
another locality. Held: That the writ of habeas corpus was properly granted, and that the
wrong that he has inflicted, he should be compelled to do so.
Mayor of the city of Manila who was primarily responsible for the deportation, is in
contempt of court for his failure to comply with the order of the court.
13.ID.; ID.—Even if the party to whom the writ is addressed has illegally parted with the
custody of a person before the application for the writ, is no reason why the writ should
2.ID.; ID.; ID.; ID.—The remedies of the unhappy victims of official oppression are three:
not issue.
(1) Civil action; (2) criminal action, and (3) habeas corpus. A civil action was never
intended effectively and promptly to meet a situation in which there is restraint of liberty.
14.ID. ; ID.—The place of confinement is not important to the relief if the guilty party is
That the act may be a crime and that the person may be proceeded against is also no bar
within the reach of process so that by the power of the court he can be compelled to
to the institution of habeas corpus proceedings. Habeas corpus is the proper remedy.
release his grasp.
3.ID.; ID.; ID.; ID.—These women, despite their being in a sense lepers of society, are
15.ID.; COMPLIANCE WITH WRIT.—For respondents to fulfill the order of the court
nevertheless not chattles, but Philippine citizens protected by the same constitutional
granting the writ of habeas corpus, three courses were open: (1) They could have
guaranties as are other citizens.
produced the bodies of the persons according to the command of the writ; (2) they could
have shown by affidavit that on account of sickness or infirmity these ,persons could not
4.ID.; ID.—The privilege of domicile is a principle often protected by constitutions and
safely be brought before the Court; or (3) they could have. presented affidavits to show
deeply imbedded in American jurisprudence.
that the parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.)
5.HABEAS CORPUS; NATURE.—The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from unlawful restraint, and as the best
16.CONTEMPT OF COURT.—The power to punish for contempt of court should be
and only sufficient defense of personal freedom.
exercised on the preservative and not on the vindictive principle. . Only occasionally
should a court invoke its inherent power in order to retain that respect without which the
6.ID. ; PARTIES.—Where it is impossible for a party to sign an application for the writ of
administration of justice must falter or fail.
habeas corpus, it is proper for the writ to be submitted by some person in his behalf.

17.ID.—When one is commanded to produce a certain person and does not do

7.ID.; JURISDICTION.—It is a general rule of good practice that, to avoid unnecessary
so, and does not offer a valid excuse, a court must, to vindicate its authority,
expense and inconvenience, petitions for habeas corpus should be presented to the
adjudge the respondent to be guilty of contempt, and must order him either
nearest judge of the Court of First Instance.
imprisoned or fined.
8.ID. ; ID.—The writ of habeas corpus may be granted by the Supreme Court or any
18.ID.—An officer's failure to produce the body of a person in obedience to a writ -of
judge thereof enforcible anywhere in the Philippine Islands.
habeas corpus, when he has power to do so, is contempt committed in the face of the
9.ID.; ID.—Whether the writ shall be made returnable before the Supreme Court or court.
before an inferior court rests in the discretion of the Supreme Court and is
19.GOVERNMENT OF THE PHILIPPINE ISLANDS; A GOVERNMENT OF LAWS.—The
dependent on the particular circumstances.
Government of the Philippine Islands is a. government of laws. The court will assist in
retaining it as a government of laws and not of men.
 20.ID, ; ID.—No official, however high, is above the law.
21.ID.; ID.—The courts are the forum which functionate to safeguard individual liberty
and to punish official transgressors.
ORIGINAL ACTION in the Supreme Court. Habeas Corpus.
The facts are stated in the opinion of the court.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with
in this modern epoch of triumphant democracy, yet, after all, the cause presents no great
difficulty if there is kept in the forefront of our minds the basic principles of popular
government,. and if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary question is—Shall
the judiciary permit a government of men instead of a government of laws to be set up in the
Philippine Islands ?
Omitting much extraneous matter, of no moment to these proceedings, but which might
prove profitable reading for other departments of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice,
ordered the segregated district for women of ill repute, which had been permitted for a
number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the
women were kept confined to their houses in the district by the police. Presumably, during this
period, the city authorities quietly perfected arrangements with the Bureau of Labor for
sending the women to Davao, Mindanao, as laborers; with some government office for the use
of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of
soldiers,. At any rate, about midnight of October 25, the police, acting pursuant to orders from
the. chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken
to a police station for an investigation. They had no knowledge that they were destined for a
lif e in Mindanao. They had not been asked if they wished to depart from that region and had
neither directly nor indirectly given their consent to the deportation. The involuntary guests
were received on board the steamers by a representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed
for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed
and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by
Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as
parties in the case, had no previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings to these women and the serious
charges growing out of alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the women married, others
assumed more or less clandestine relations with men, others went to work in different
capacities, others assumed a life unknown and disappeared, and a goodly portion found
means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number of the
deportees presented an application f or habeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was made to include all of
the women who were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women were illegally
restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief
of police of the city of Manila, and by certain unknown parties. The writ was made returnable
before the full court. The city fiscal appeared f or the respondents, Lukban and Hohmann,
admitted certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties, because the action
should have been begun in the Court of First Instance for Davao, Department of Mindanao
and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of.
Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were
destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In
open court, the fiscal admitted, in answer to a question of a member of the court, that these
women had been sent out of Manila without their consent. The court awarded the writ, in an
order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Yñigo, an hacendero of Davao, to bring bef ore the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the clerk of
the Supreme Court sitting as commissioner. On the day named in the order, December 2d,
1918, none of the persons in whose behalf the writ was issued were produced in court by the
respondents. It has since been shown that three of those who had been able to come back to
Manila through their own efforts, were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the
stand taken by him when pleading to the original petition. copied a telegram f rom the Mayor
of the city of Manila to the provincial governor of Davao and the answer thereto, and
telegrams that had passed between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the women were contented with
their life in Mindanao and did not wish to return to Manila. Respondent Sales answered
alleging that it was not possible to fulfill the order of the Supreme Court because the women
had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yñigo answered
alleging that he did not have any of the women under his control and that therefore it was
impossible for him to obey the mandate. The court, after due deliberation, on December 10,
1918, promulgated a second order, which related that the respondents had not complied with
the original order to the satisfaction of the court nor explained their failure to do so, and
therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first instance of Davao or
the clerk of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would later be decided and
the reasons for the order announced in the final decision.
Before January 13, 1919, f urther testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken before
the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First
Instance of Davao acting in the same capacity. On January 13, 1919, the respondents
technically presented before the Court the women who had returned to the city through their
own efforts and eight others who had been brought to Manila by the respondents. Attorneys
for the respondents, by their returns, once again recounted the facts and further endeavored
to account for all of the persons involved in the habeas corpus. In subStance, it was stated
that the respondents, through their representatives and agents, had succeeded in bringing
from Davao with their consent eight women; that eighty-one women were found in Davao
who, on notice that if they desired they could return to Manila, transportation free, renounced
the right through sworn statements; that fiftynine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel
for petitioners and the city fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police f orce
of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney
for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court.
The city fiscal requested that the réplica, al memorandum de los recurridos, (reply to
respondents' memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do so.
One f act, and one fact only, need be recalled—these one hundred and seventy women
were isolated from society, and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble attempt to prove that the
women left voluntarily and gladly, that such was not the case is shown by the mere fact that
the presence of the police and the constabulary was deemed necessary and that these officers
of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a
fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question—By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress these
persons from Manila to another distant locality within the Philippine Islands? We turn to the
statutes and we find—
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
Congress. The Governor-General can order the eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and punishment by a court of
justice of any person who is a common prostitute. Act No, 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New
York and other States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the health
authorities compel vaccination, or establish a quarantine, or place a leprous person in the
Culion leper colony, it is done pursuant to some law or order. But one can search in vain for
any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila
or the chief of police of that city to force citizens of the Philippine Islands—and these women
despite their being in a sense lepers of society are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are other citizens—to change their
domicile from Manila to another locality. On the contrary, Philippine penal law specifically
punishes any public officer who, not being expressly authorized by law or regulation, compels
any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important
as to be found in the Bill of Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so
elementary in nature as not even to require a constitutional sanction. Even the Governor-
General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the executive of a municipality, who acts
within a sphere of delegated powers. If the mayor and the chief of police could, at their mere
behest or even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to themselves such power, then
any other official can do the same. And if any official can exercise the power, then all persons
would have just as much right to do so. And if a prostitute could be sent against her wishes
and under no law f rom one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that—"No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him,
but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will
not deny or def er to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap.
29; 1 Eng. Stat. at Large, 7.) No official, no matter how high, is above the law. The courts are
the forum which functionate to safeguard individual liberty and to punish official transgressors.
"The law," said Justice Miller, delivering the opinion of the Supreme Court of the United
States, "is the only supreme power in our system of government, and every man who by
accepting office participates in its functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations which it imposes upon the exercise of the authority
which it gives." (U. S. vs. Lee [1882], 106 U. S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man may be compelled to hold
his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being
the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U. S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the
very beginning that the primary question was whether the courts should permit a government
of men or a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but it
was never intended effectively and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
"Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas" (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find
that any public officer has violated this provision of law, these prosecutors will institute and
press a criminal prosecution just as vigorously as they have defended the same official in this
action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be
proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley
in a case which will later be referred to—"It would be a monstrous anomaly in the law if to an
application by one unlawfully confined, to be restored to his liberty, it could be a sufficient
answer that the confinement was a crime, and therefore might be continued indefinitely until
the guilty party was tried and punished therefor by the slow process of criminal procedure."
(In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised
and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as
the best and only sufficient defense of personal freedom. Any further rights of the parties are
left untouched by decision on the writ, whose principal purpose is to set the individual at
liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (1) that there is a defect in
parties petitioners, (2) that the Supreme Court should not assume jurisdiction, and (3) that
the persons in question are not restrained of their liberty by respondents, It was finally
suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only
extends to the city limits and that perf orce they could not bring the women from Davao.
The first defense was not pressed with any vigor by counsel. The petitioners were relatives
and friends of the deportees. The way the expulsion was conducted by the city officials made
it impossible for the women to sign a petition for habeas corpus. It was consequently proper
for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78;
Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even
makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that
within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty,
though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had
standing in court.
The fiscal next contended that the writ should have been asked f or in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general rule
of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas
corpus should be presented to the nearest judge of the court of first instance. But this is not a
hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is
dependent on the particular circumstances. In this instance it was not shown that the Court of
First Instance of Davao was in session, or that the women had any means by which to
advance their plea bef ore that court. On the other hand, it was shown that the petitioners
with their attorneys, and the two original respondents with their attorney, were in Manila; it
was shown that the case involved parties situated in different parts of the Islands; it was
shown that the women might still be imprisoned or restrained of their liberty; and it was
shown that if the writ was to accomplish its purpose, it must be taken cognizance of and
decided immediately by the appellate court. The failure of the superior court to consider the
application and then to grant the writ would have amounted to a denial of the benefits of the
writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and
the chief of police did not extend beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such dictum is f ound to be perversive of the
first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them over to other
parties, who deposited them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned. Placed in Davao without either
money or personal belongings, they were prevented from exercising the liberty of going when
and where they pleased. The restraint of liberty which began in Manila continued until the
aggrieved parties were returned to Manila and released or until they freely and truly waived
this right.
Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and then, when called upon to
defend his official action, could calmly fold his hands and claim that the person was under no
restraint and that he, the official, had no jurisdiction over this other municipality. We believe
the true principle should be that, if the respondent is within the jurisdiction of the court and
has it in his power to obey the order of the court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has
illegally parted with the custody of a person before the application for the writ is no reason
why the writ should not issue. If the mayor and the chief of police, acting under no authority
of law, could deport these women from the city of Manila to Davao, these same officials must
necessarily have the same means to return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by
forcing her to change her domicile and to avow the act with impunity in the courts, while the
person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities f ails to
reveal any analogous case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ of habeas corpus would issue from the Supreme Court to a person
within the jurisdiction of the State to bring into the State a minor child under guardianship in
the State, who has been and continues to be detained in another State. The membership of
the Michigan Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court
was equally divided. Campbell, J,, with whom concurred Martin, C. J., held that the writ should
be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the English decisions, and
since, as will hereafter appear, the English courts have taken a contrary view, only the f
ollowing eloquent passages from the opinion of Justice Cooley are quoted:
"I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on .the petition which was laid before us. * * *
"It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on the
petition of right that 'Magna Charta was such a fellow that he will have no sovereign,' and
after the extension of its benefits and securities by the petition of right, bill of rights and
habeas corpus acts, it should now be discovered that evasion of that great clause for the
protection of personal liberty, which is; the life and soul of the whole instrument, is so easy as
is claimed here. If it is so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they would, on the subject being
brought to their notice. * * *
"The second proposition—that the statutory provisions are confined to the case of
imprisonment within the state—seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. * * *
"The important f act to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not reach
the former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor
to release his constraint The whole force of the writ is spent upon the respondent, and if he
fails to obey it, the means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp.  The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where is the power of control
exercised? And I am aware of no other remedy." (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs, People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been
taken out of England by the respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her husband directing the defendant to
produce the child. The judge at chambers gave defendant until a certain date to produce the
child, but he did not do so. His return stated that the child before the issuance of the writ had
been handed over by him to another; that it was no longer in his custody or control, and that
it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the
court, through Lord Esher, M. R., said:
"A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the
child. If it could be shown that by reason of his having lawfully parted with the possession of
the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period f or the purpose of showing that what was done at some
time prior to the writ cannot be 'a contempt. But the question is not as to what was done bef
ore the issue of the writ. The question is whether there has been a contempt in disobeying the
writ after it was issued by not producing the child in obedience to its commands." (The
Queen vs. Barnardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In
re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to
'the defendant to have before the circuit court of the District of Columbia three colored
persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that
he had purchased the negroes as slaves in the city of Washington; that, as he believed, they
were removed beyond the District of Columbia before the service of the writ of habeas corpus,
and that they were then beyond his control and out of his custody. The evidence tended to
show that Davis had removed the negroes because he suspected they would apply for a writ
of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was
bound to produce the negroes, and Davis being present in court, and refusing to produce
them, ordered that he be committed to the custody of the marshall until he should produce
the negroes, or be otherwise discharged in due course of law. The court afterwards ordered
that Davis be released upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day
of the term. (United States vs. Davis [1839], 5 Cranch C. C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U. S., 624; Church on Habeas Corpus, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defenses offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondents complied with the two orders of
the Supreme Court awarding the writ of habeas corpus, 'and if it be found that they did not,
whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ bef ore the court on December
2,1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record discloses, the Mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought bef ore
the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of the
writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court; or (3) they could have presented
affidavits to show ,that the parties in question or their attorney waived the right to be present.
(Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in
whose behalf the writ was granted; they did not show impossibility of performance; and they
did not present writings that waived the right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were contented with their life in
Davao, some of which have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated by the fact that during this time they
were easily to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to jail
until they obeyed the order. Their excuses for the non-production of the persons were far
from sufficient. The authorities cited herein pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought
that, having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child back; that
he must do much more than write letters for the purpose; that he must advertise in America,
and even if necessary himself go after the child, and do everything that mortal man could do
in the matter; and that the court would only accept clear proof of an absolute impossibility by
way of excuse." In other words, the return did not show that every possible effort to produce
the women was made by the respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it. Our finding to this effect may be
influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any
wrong is now being perpetrated in Davao, it should receive an executive investigation. If any
particular individual is still restrained of her liberty, it can be made the object of separate
habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with
it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force of the city. of Manila, Modesto
Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and
Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent power in
order to retain that respect without which the administration of justice must falter or fail. In concluding this tedious and disagreeable task, may we not be permitted to express the
Nevertheless when one is commanded to produce a certain person and does not do so, and hope that this decision may serve to bulwark the f ortifications of an orderly government of
does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent laws and to protect. individual liberty from illegal encroachment.
to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ of habeas corpus when he has power to
do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., Arellano, C. J., Avanceña, and Moir, JJ., concur.
156; In re Patterson [1888], 99 N. C., 407.)

Johnson, and Street, JJ., concur in the result.

With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of the
first named, has flatly disobeyed the court by acting in opposition to its authority,
TORRES, J., dissenting:
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been The undersigned does not entirely agree to the opinion of the majority in the decision of
drawn into the case through a misconstruction by counsel of telegraphic communications. The the habeas corpus proceeding against Just Lukban, the mayor of this city.
city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of any disrespect to the court, his There is nothing in the record that shows the motive which impelled Mayor Lukban to
counter-motion to strike from the record the memorandum of attorney for the petitioners, oblige a great number of women of various ages, inmates of the houses of prostitution
which brings him into this undesirable position, must be granted. When all is said and done, as situated in Gardenia Street, district of Sampaloc, to change their residence.
far as this record discloses, the official who was primarily responsible for the unlawful
deportation, who ordered the police to accomplish the same, who made arrangements for the We know no express law, regulation, or ordinance which clearly prohibits the opening of
steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason,
who later, as the head of the city government, had it within his power to facilitate the return when more than one hundred and fifty women were assembled and placed aboard a steamer
of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His and transported to Davao, considering that the existence of the said houses of prostitution has
intention to suppress the social evil was commendable. His methods were unlawful. His regard been tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in
for the writ of habeas corpus issued by the court was only tardily and reluctantly the manner shown, acted without authority of any legal provision which constitutes an
acknowledged. It would be possible to turn to the provisions of section 546 of the Code of exception to the laws guaranteeing the liberty and the individual rights of the residents of the
Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof city of Manila.
to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which
would reach to many thousands of pesos, and in addition to deal with him as for a contempt.
We do not believe in the pomp and ostentation of force displayed by the police in
Some members of the court are inclined to this stern view. It would also be possible to find
complying with the order of the mayor of the city; neither do we believe in the necessity of
that since respondent Lukban did comply substantially with the second order of the court, he
taking them to the distant district of Davao. The said governmental authority, in carrying out
has purged his contempt of the first order. Some members of the court are inclined to this
his intention to suppress the segregated district or the community formed by those women in
merciful view. Between the two extremes appears to lie the correct finding. The failure of
Gardenia Street, could have obliged the said women to return to their former residences in
respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the
this city or in the provinces, without the necessity of transporting them to Mindanao; hence
administration of justice to such an extent that his later activity may be considered only as
the said official is obliged to bring back the women who are still in Davao so that they may
extenuating his conduct. A nominal fine will at once command such respect without being
return to the places in which they lived prior to their becoming inmates of certain houses in
unduly oppressive—such an amount is P100.
Gardenia Street.

In résumé—as before stated, no further action on the writ of habeas corpus is necessary.
As regards the manner whereby the mayor complied with the orders of this court, we do
The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
not find any apparent disobedience and marked absence of respect in the steps taken by the
contempt of court. Respondent Lukban is found in contempt of court and shall pay into the
mayor of the city and his subordinates, if we take into account the difficulties encountered in
office of the clerk of the Supreme Court within five days the sum of one hundred pesos
bringing the said women who were free at Davao and presenting them before this court within
(P100). The motion of the fiscal of the city of Manila to strike from the record the Réplica al
the time fixed, inasmuch as it does not appear that the said women were living together in a
Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
given place. It was not because they were really detained, but because on the first days there
respondents! So ordered.
were no houses in which they could live with a relative independent from one another, and as
a proof that they were free a number of them returned to Manila and the others succeeded in
living separate from their companions who continued living together.
 To determine whether or not the mayor acted with a good purpose and legal object and
whether he has acted in good or bad faith in proceeding to dissolve the said community of
prostitutes and to oblige them to change their domicile, it is necessary to consider not only the
rights and interests of the said women and especially of the patrons who have been directing
and conducting such a reproachable enterprise and shameful business in one of the suburbs
of this city, but also the rights and interests of the very numerous people of Manila where
relatively a few transients accidentally and for some days reside, the inhabitants thereof being
more than three hundred thousand (300,000) who can not, with indifference and without
repugnance, live in the same place with so many unfortunate women dedicated to
prostitution.
If the material and moral interests of the community as well as the demands of social
morality are to be taken into account, it is not possible to sustain that it is legal and
permissible to establish a house of pandering or prostitution in the midst of an enlightened
population, for, although there were no positive laws prohibiting the existence of such houses
within a district of Manila, the dictates of common sense and dictates of conscience of its
inhabitants are sufficient to warrant the public administration, acting correctly, in exercising
the inevitable duty of ordering the closing and abandonment of a house of prostitution
ostensibly open to the public, and of obliging the inmates thereof to leave it, although such a
house is inhabited by its true owner who invokes in his behalf the protection of the
constitutional law guaranteeing his liberty, ,his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease
cannot invoke in his favor the constitutional law which guarantees his liberty and individual
rights, should the administrative authority order his hospitalization, reclusion, or concentration
in a certain island or distant point in order to free from contagion the great majority of the
inhabitants of the country who fortunately do not have such diseases. The same reasons exist
or stand good with respect to the unfortunate women dedicated to prostitution, and such
reasons become stronger because the first persons named have contracted their diseases
without their knowledge and even against their will, whereas the unfortunate prostitutes
voluntarily adopted such manner of living and spontaneously accepted all its consequences,
knowing positively that their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to the spread or
multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species
in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid,
and other contagious diseases which produce great mortality and very serious prejudice to
poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex,
which can give her sufficient remuneration for her subsistence, prefers to put herself under
the will of another woman who is usually older than she is and who is the manager or owner
of a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is
undeniable that she voluntarily and with her own knowledge renounces her liberty and
individual rights guaranteed by the Constitution, because it is evident that she can not join the
society of decent women nor can she expect to get the same respect that is due to the latter,
nor is it possible for her to live within the community or society with the same liberty and
rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should
therefore be comprised within that class which is always subject to the police and sanitary
regulations conducive to the maintenance of public decency and morality and to the
conservation of public health, and for this reason it should not be permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by
the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but
those who have been worrying so much about the prejudice resulting from a governmental
measure, which being a very drastic remedy may be considered arbitrary, have failed to
consider with due reflection the interests of the inhabitants of this city in general and
particularly the duties and responsibilities weighing upon the authorities which administer and
govern it; they have forgotten that many of those who criticize and censure the mayor are
fathers of families and are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of
the abnormal life they assumed, were obliged to change their residence not by a private
citizen but by the mayor of the city who is directly responsible for the conservation of public
health and social morality, the latter could take the step he had taken, availing himself of the
services of the police in good faith and only with the purpose of protecting the immense
majority of the population from the social evils and diseases which the houses of prostitution
situated in Gardenia Street have been producing, which houses have been constituting for
years a true center for the propagation of veneral diseases and other evils derived therefrom.
Hence, in ordering the dissolution and abandonment of the said houses of prostitution and the
change of the domicile of the inmates thereof, the mayor did not in bad faith violate the
constitutional law which guarantees the liberty and the individual rights of every Filipino,
inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the free practice of their
shameful profession.
In very highly advanced and civilized countries, there have been adopted by the
administrative authorities similar measures, more or less rigorous, respecting prostitutes,
considering them prejudicial to the people, although it is true that in the execution of such
measures more humane :and less drastic procedures, fortiter in re et suaviter in forma, have
been adopted, but such procedures have always had in view the ultimate object of the
Government for the sake of the community, that is, putting an end to the living together in a
certain place of women dedicated to prostitution and changing their domicile, with the
problematical hope that they adopt another manner of living which is better and more useful
to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the said women who are at present found in
Davao, and who desire to return to their former respective residences, not in Gardenia Street,
Sampaloc District, with the exception of the prostitutes who should expressly make known to
the clerk of court their preference to reside in Davao, which manifestation must be made
under oath. This resolution must be transmitted to the mayor within the shortest time possible
f or its due compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
1 regret to dissent from the respectable opinion of the majority in the decision rendered in
these proceedings, with respect to the finding as to the importance of the contempt
committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila, and
the consequent imposition upon him of a nominal fine of ?100.
In the said decision, it is said:
"The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on December
2,1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record discloses, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named."
In accordance with section 87 of General Orders No. 58, as is said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1)
produced the bodies of the persons according to the command of the writ; (2) shown by
affidavits that on account of sickness or infirmity the said women could not safely be brought
before this court; and (3) presented affidavits to show that the parties in question or their
lawyers waived their right to be present. According to the same decision, the said respondents
"* * * did not produce the bodies of the persons in whose behalf the writ was granted; did not
show impossibility of performance; and did not present writings that waived the right to be
present by those interested. Instead, a few stereotyped affidavits purporting to show that the
women were contented with their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila is demonstrated
by the fact that during this time they were easily to be found in ,the municipality of Davao,
and that about this number either returned at their own expense or were produced at the
second hearing by the respondents."
The majority opinion also recognized that, "The court, at the time the return to its first
order was made, would have been warranted summarily in finding the respondent guilty of
contempt of court, and in sending them to jail until they obeyed the order. Their excuses for
the non production of the persons were far from sufficient." To corroborate this, the majority
decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283)
and added "that the return did not show that every possible effort to produce the women was
made by the respondents."
When the said return by the respondents was made to this court in banc and the case
discussed, my opinion was that Mayor Lukban should have been immediately punished for
contempt. Nevertheless, a second order referred to in the decision was issued on December
10, 1918, requiring the respondents to produce before the court, on January 13, 1919, the
women who were not in Manila, unless they could show that it was impossible to comply with
the said order on the two grounds previously mentioned. With respect to this second order,
the same decision has the following to say:
"In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfilment with our mandate, we come to conclude that there is
a substantial compliance with it."
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the
date of the issuance of the first order on November 4th till the 21st of the same month bef ore
taking the first step f or compliance with the mandate of the said order; he waited till the 21st
of November, as the decision says, before he sent a telegram to the provincial governor of
Davao and naturally this half-hearted effort, as is so qualified in the decision, resulted in that
none of the women appeared before this court on December 2d. Thus, the said order was not
complied with, and in addition to this noncompliance there was the circumstance that seven of
the said women having returned to Manila at their own expense before the said second day of
December and being in the antechamber of the court room, which fact was known to Chief of
Police Hohmann, who was then present at the trial and to the attorney for the respondents,
were not produced before the court by the respondents nor did the latter show any effort to
present them, in spite of the fact that their attention was called to this particular by the
undersigned.
The result of the said second order was, ,as is said in the same decision, that the
respondents, on January 13th, the day fixed for the production of the women before this
court, presented technically the seven (7) women above-mentioned who had returned to the
city at their own expense and the other eight (8) women whom the respondents themselves
brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing
them from Davao with their consent; that in Davao they found eighty-one (81) women who,
when asked if they desired to return to Manila with free transportation, renounced such a
right, as is shown in the affidavits presented by the respondents to this effect; that, through
other means, fifty-nine (59) women have already returned to Manila, but notwithstanding the
efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of
them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann
and transported to Davao against their will, only eight (8) have been brought to Manila and
presented before this court by the respondents in compliance with the said two orders. Fifty-
nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza,
on his return from Davao. The said attorney paid out of his own pocket the transportation of
the said twenty-six women. Adding to these numbers the other seven (7) women who
returned to this city at their own expense before January 13 we have a total of sixty-six (66),
which evidently proves, on the one hand, the falsity of the allegation by the respondents in
their first answer at the trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content with their life in
Mindanao and did not desire to return to Manila; and, on the other,.that the respondents,
especially the first named, that is Mayor Justo Lukban, who acted as chief and principal in all
that refers to the compliance with the orders issued by this court, could bring before
December 2d, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women
already indicated, at least a great number of them, or at least sixty (60) of them, as is said in
the majority decision, inasmuch as the said respondent could count upon the aid of the
Constabulary forces and the municipal police, and had transportation facilities for the purpose.
But the said respondent mayor brought only eight (8) of the women before this court on
January 13th. This fact can not, in my judgment, with due respect to the majority opinion,
justify the conclusion that the said respondent has substantially complied with the second
order of this court, but on the other hand demonstrates that he has not complied with the
mandate of this court in its first and second orders; that neither of the said orders has been
complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is, according
to the majority decision, principally responsible f or the contempt, to which conclusion I agree.
The conduct of the said respondent with respect to the second order confirms the contempt
committed by non-compliance with the first order and constitutes a new contempt because of
non-compliance with the second, because the production of only eight (8) of the one hundred
and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not
be found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case
which deals with the remedy of habeas corpus, presented by the petitioners and involving the
question whether they should or not be granted their liberty, the respondent has not given
due attention to the same nor has he made any effort to comply with the second order. In
other words, he has disobeyed the said two orders; has despised the authority of this court;
has failed to give the respect due to justice; and lastly, he has created and placed obstacles to
the administration of justice in the said habeas corpus proceeding, thus preventing, because
of his notorious disobedience, the resolution of the said proceeding with the promptness which
the nature of the same required.
"Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. * * *" (Ruling Case Law, vol. 6, p. 488.)
"It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith." (Ruling Case Law vol. 6, p.
502.)
"It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct
or attempt to obstruct the service of legal process. If a person hinders or prevents the service
of process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means." (Ruling Case Law, vol. 6, p. 503.)
"While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the power
to enforce decorum in the courts and obedience to their orders and just measures is so
essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect f or the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice." /Ruling
Case Law, vol. 6, p. 487.)
"The power to punish for contempt is as old as the law itself, and has been exercised from
the earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, :the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so f ar as the legislative department is concerned, is
obsolete. but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a necessary
incident to every court of justice, whether of record or not; and the authority for issuing
attachments in a proper case for contempts out of court, it has been declared, stands upon
the same immemorial usage as supports the whole fabric of the common law. * * *" (Ruling
Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of
the prestige of the authority of the court which issued the said orders, which loss might have
been caused by noncompliance with the. same orders on the part of the respondent Justo
Lukban; the damages which might have been suffered by some of the women illegally
detained, in view of the f act that they were not brought to Manila by the respondents to be
presented before the court and of the further fact that some of them were obliged to come to
this city at their own expense while still others were brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the transportation of the said women; and the
delay which was necessarily incurred in the resolution of the petition interposed by the said
petitioners and which was due to the fact that the said orders were not opportunely and duly
obeyed and complied with, are circumstances which should be taken into account in imposing
upon the respondent Justo Lukban the penalty corresponding to the contempt committed by
him, a penalty which, according to section 236 of the Code of Civil Procedure, should consist
of a fine not exceeding P1,000 or imprisonment not exceeding six months, or both such fine
and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority,
the mayor of the city of Manila, the first executive authority of the city, and consequently, the
person obliged to be the first in giving an example of obedience and respect for the laws and
the valid and just orders of the duly constituted authorities as well as for the orders emanating
from the courts of justice, and in giving help and aid to the said courts in order that justice
may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the
costs should be charged against him. Lastly, I believe it to be my duty to state here that the
records of this proceeding should be transmitted to the AttorneyGeneral in order that, after a
study of the same and deduction from the testimony which he may deem necessary, and the
proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the corresponding informations for the prosecution and
punishment of the crimes which have been committed on the occasion when the illegal
detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila
and Chief of Police Anton Hohmann, and also of those crimes committed by reason of the
same detention and while the women were in Davao. This will be one of the means whereby
the just hope expressed in the majority decision will be realized, that is, that in the Philippine
Islands there should exist a government of laws and not a government of men and that this
decision may serve to bulwark the fortifications of an orderly Government of laws and to
protect individual liberty from illegal encroachments.

Writ granted.

_____________
 No. L-62100. May 30, 1986.*
RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS, HONS.
SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of
First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the
SECURITIES & EXCHANGE COMMISSION, HON. EDMUNDO M. REYES, as
Commissioner of Immigration, and the Chief of the Aviation Security Command
(AVSECOM), respondents.
Constitutional Law; Criminal Procedure; Bails; A court may prohibit an accused from
leaving the Philippines even if he was admitted to bail.— A court has the power to prohibit a
person admitted to bail from leaving the Philippines. This is a necessary consequence of the
nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as
the security required and given for the release of a person who is in the custody of the law,
that he will appear before any court in which his appearance may be required as stipulated in
the bail bond or recognizance.
Same; Same; Same; Same.—The condition imposed upon petitioner to make himself
available at all times whenever the court requires his presence operates as a valid restriction
on his right to travel. As we have held in People v. Uy Tuising, 61 Phil. 404 (1935).
Same; Same; Same; Same; An accused person desiring to leave the Philippines must
show to the court’s satisfaction that the same is justified, including the conformity of his
sureties.—Petitioner has not specified the duration of the proposed travel or shown that his
surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he
had posted cash indemnities. The court cannot allow the accused to leave the country without
the assent of the sure-ty because in accepting a bail bond or recognizance, the government
impliedly agrees “that it will not take any proceedings with the principal that will increase the
risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail
bond or recognizance may be discharged by a stipulation inconsistent with the conditions
thereof, which is made without his assent. This result has been reached as to a stipulation or
agreement to postpone the trial until after the final disposition of other cases, or to permit the
principal to leave the state or country.” Thus, although the order of March 26, 1982 issued by
Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the
criminal cases pending before said judge, We see the rationale behind said order.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
FERNAN, J.:
The issue posed for resolution in this petition for review may be stated thus: Does a person
facing a criminal indictment and provisionally released on bail have an unrestricted right to
travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having
transferred the management of the latter into the hands of professional men, he holds no
officer-position in said business, but acts as president of the former corporation.
Following the “run” on stock brokerages caused by stock broker Santamaria’s flight from
this jurisdiction, petitioner, who was then in the United States, came home, and together with
his co-stockholders, filed a petition with the Securities and Exchange Commission for the
appointment of a management committee, not only for Manotoc Securities, Inc., but likewise
for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc.,
docketed as SEC Case No. 001826, entitled, “In the Matter of the Appointment of a
Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc,
Jr., Petitioners”, was granted and a management committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission
requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for
departure and a memorandum to this effect was issued by the Commissioner on February 4,
1980 to the Chief of the Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected
to be a fake, six of its clients filed six separate criminal complaints against petitioner and one
Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In
due course, corresponding criminal charges for estafa were filed by the investigating fiscal
before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and
45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545,
raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in the total
amount of P105,000.00, with FGU Insurance Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, “motion
for permission to leave the country”, stating as ground therefor his desire to go to the United
States, “relative to his business transactions and opportunities.”1 The prosecution opposed
said motion and after due hearing, both trial judges denied the same. The order of Judge
Camilon dated March 9, 1982, reads:
“Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing
ground that his trip is ‘x x x relative to his business transactions and opportunities.’
“The Court sees no urgency from this statement. No matter of any magnitude is discerned
to warrant judicial imprimatur on the proposed trip.
“In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in
the future until these two (2) cases are terminated.”2
On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:
“6.—Finally, there is also merit in the prosecution’s contention that if the Court would allow
the accused to leave the Philippines the surety companies that filed the bail bonds in his
behalf might claim that they could no longer be held liable in their undertakings because it
was the Court which allowed the accused to go outside the territorial jurisdiction of the
Philippine Court, should the accused fail or decide not to return.
“WHEREFORE, the motion of the accused is DENIED.”3
It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the
recall or withdrawal of the latter’s memorandum dated February 4, 1980, but said request was
also denied in a letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of
Appeals4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and
Pronove, respectively, as well as the communication-request of the Securities and Exchange
Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the
appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation
Security Command (AVSECOM) to clear him for departure.
On October 5, 1982, the appellate court rendered a decision5 dismissing the petition for
lack of merit.
Dissatisfied with the appellate court’s ruling, petitioner filed the instant petition for review
on certiorari. Pending resolution of the petition to which we gave due course on April 14,
19836 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite.7 In
his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection
“with the obtention of foreign investment in Manotoc Securities, Inc.”8 He attached the letter
dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana,
Inc., Mr. Marsden W. Miller9 requesting his presence in the United States to “meet the people
and companies who would be involved in its investments.” Petitioner, likewise manifested that
on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati
(formerly Nos. 45542-45545) had been dismissed as to him “on motion of the prosecution on
the ground that after verification of the records of the Securities and Exchange Commission x
x x (he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the
commission of the offenses imputed to him.”10 Criminal Cases Nos. 45399 and 45400 of the
Regional Trial Court of Makati, however, remained pending as Judge Camilon, when notified of
the dismissal of the other cases against petitioner, instead of dismissing the cases before him,
ordered merely the informations amended so as to delete the allegation that petitioner was
president and to substitute that he was “controlling/majority stockholder,”11 of Manotoc
Securities, Inc.
On September 20, 1984, the Court in a resolution en banc denied petitioner’s motion for
leave to go abroad pendente lite.12
Petitioner contends that having been admitted to bail as a matter of right, neither the
courts which granted him bail nor the Securities and Exchange Commission which has no
jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel.
Petitioner’s contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1
of the Rules of Court defines bail as the security required and given for the release of a person
who is in the custody of the law, that he will appear before any court in which his appearance
may be required as stipulated in the bail bond or recognizance.
“Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much under the
power of the court as if he were in custody of the proper officer, and to secure the
appearance of the accused so as to answer the call of the court and do what the law may
require of him.”13
The condition imposed upon petitioner to make himself available at all times whenever the
court requires his presence operates as a valid restriction on his right to travel. As we have
held in People v. Uy Tuising, 61 Phil. 404 (1935).
“x x x the result of the obligation assumed by appellee (surety) to hold the accused amenable
at all times to the orders and processes of the lower court, was to prohibit said accused from
leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will
be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not
extend beyond that of the Philippines they would have no binding force outside of said
jurisdiction.”
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may
be placed beyond the reach of the courts.
“The effect of a recognizance or bail bond, when fully executed or filed of record, and the
prisoner released thereunder, is to transfer the custody of the accused from the public officials
who have him in their charge to keepers of his own selection. Such custody has been
regarded merely as a continuation of the original imprisonment. The sureties become invested
with full authority over the person of the principal and have the right to prevent the principal
from leaving the state.”14
If the sureties have the right to prevent the principal from leaving the state, more so then
has the court from which the sureties merely derive such right, and whose jurisdiction over
the person of the principal remains unaffected despite the grant of bail to the latter. In fact,
this inherent right of the court is recognized by petitioner himself, notwithstanding his
allegation that he is at total liberty to leave the country, for he would not have filed the
motion for permission to leave the country in the first place, if it were otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals’ ruling
in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the
following passage:
“x x x The law obliges the bondsmen to produce the person of the appellants at the pleasure
of the Court. x x x The law does not limit such undertaking of the bondsmen as demandable
only when the appellants are in the territorial confines of the Philippines and not demandable
if the appellants are out of the country. Liberty, the most important consequence of bail, albeit
provisional, is indivisible. If granted at all, liberty operates as fully within as without the leave the country, in much the same way, albeit with contrary results, that We found no
boundaries of the granting state. This principle perhaps accounts for the absence of any law reversible error to have been committed by the appellate court in allowing Shepherd to leave
or jurisprudence expressly declaring that liberty under bail does not transcend the territorial the country after it had satisfied itself that she would comply with the conditions of her bail
boundaries of the country.” bond.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is
misplaced. The rather broad and generalized statement suffers from a serious fallacy; for
while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under bail
does not transcend the territorial boundaries of the country, it is not for the reason suggested
by the appellate court.
The constitutional right to travel being invoked by petitioner is not an absolute right.
Section 5, Article IV of the 1973 Constitution states:
“The liberty of abode and of travel shall not be impaired except upon lawful order of the court,
or when necessary in the interest of national security, public safety or public health.”

Also, petitioner’s case is not on all fours with the Shepherd case. In the latter case, the To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful
accused was able to show the urgent necessity for her travel abroad, the duration thereof and order as contemplated by the above-quoted constitutional provision.
the conforme of her sureties to the proposed travel thereby satisfying the court that she would
comply with the conditions of her bail bond. In contrast, petitioner in this case has not
Finding the decision of the appellate court to be in accordance with law and jurisprudence,
satisfactorily shown any of the above. As aptly observed by the Solicitor General in his
the Court finds that no gainful purpose will be served in discussing the other issues raised by
comment:
petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

“A perusal of petitioner’s ‘Motion for Permission to Leave the Country’ will show that it is
SO ORDERED.
solely predicated on petitioner’s wish to travel to the United States where he will, allegedly
attend to some business transactions and search for business opportunities. From the tenor
and import of petitioner’s motion, no urgent or compelling reason can be discerned to justify
     Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez,
the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is
Jr., Cruz and Paras, JJ., concur.
absolute necessity for him to travel abroad. Petitioner’s motion bears no indication that the
alleged business transactions could not be undertaken by any other person in his behalf.
Neither is there any hint that petitioner’s absence from the United States would absolutely      Feria, J., no part.
preclude him from taking advantage of business opportunities therein, nor is there any
showing that petitioner’s non-presence in the United States would cause him irreparable
damage or prejudice.”15 Petition dismissed.

Petitioner has not specified the duration of the proposed travel or shown that his surety has ——o0o——
agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted
cash indemnities. The court cannot allow the accused to leave the country without the assent 158
of the surety because in accepting a bail bond or recognizance, the government impliedly
agrees “that it will not take any proceedings with the principal that will increase the risks of
the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or
recognizance may be discharged by a stipulation inconsistent with the conditions thereof,
which is made without his assent. This result has been reached as to a stipulation or
agreement to postpone the trial until after the final disposition of other cases, or to permit the
principal to leave the state or country.”16 Thus, although the order of March 26, 1982 issued
by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of
the criminal cases pending before said judge, We see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of
his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We
find no abuse of judicial discretion in their having denied petitioner’s motion for permission to
 G.R. No. 141529. June 6, 2001.*
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF APPEALS and
the PEOPLE OF THE PHILIPPINES, respondents.
Criminal Procedure; Bail; Imposing bail in an excessive amount could render
meaningless the right to bail.—The prohibition against requiring excessive bail is enshrined in
the Constitution. The obvious rationale, as declared in the leading case of De la Camara vs.
Enage, is that imposing bail in an excessive amount could render meaningless the right to bail.
Thus, in Villaseñor vs. Abano, this Court made the pronouncement that it will not hesitate to
exercise its supervisory powers over lower courts should the latter, after holding the accused
entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting
unreasonable conditions.
Same; Same; Factors to be considered in the setting of the amount of bail. —At the
same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to
consider the following factors in the setting of the amount of bail: (a) Financial ability of the
accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense
charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f)
Weight of the evidence against the accused; (g) Probability of the accused appearing at the
trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when
arrested; and (j) Pendency of other cases where the accused is on bail.
Same; Same; Court finds that the setting of the amount at P5,500,000.00 is
unreasonable, excessive, and constitutes an effective denial of petitioner’s right to bail. —
Under the circumstances of this case, we find that appropriate conditions have been imposed
in the bail bond to ensure against the risk of flight, particularly, the combination of the
holddeparture order and the requirement that petitioner inform the court of any change of
residence and of his whereabouts. Although an increase in the amount of bail while the case is
on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is
unreasonable, excessive, and constitutes an effective denial of petitioner’s right to bail.
Same; Same; The amount should be high enough to assure the presence of the accused
when required but no higher than is reasonably calculated to fulfill this purpose.—The purpose
for bail is to guarantee the appearance of the accused at the trial, or whenever so required by
the court. The amount should be high enough to assure the presence of the accused when
required but no higher than is reasonably calculated to fulfill this purpose. To fix bail at an
amount equivalent to the civil liability of which petitioner is charged (in this case,
P5,500,000.00) is to permit the impression that the amount paid as bail is an exaction of the
civil liability that accused is charged of; this we cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability which should necessarily await the judgment
of the appellate court.
Same; Same; Courts are advised that they must not only be aware but should also
consider the Bail Bond Guide due to its significance in the administration of criminal justice. —
True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for
the guidance of state prosecutors, although technically not binding upon the courts, “merits
attention, being in a sense an expression of policy of the Executive Branch, through the
Department of Justice, in the enforcement of criminal laws.” Thus, courts are advised that
they must not only be aware but should also consider the Bail Bond Guide due to its
significance in the administration of criminal justice. This notwithstanding, the Court is not
precluded from imposing in petitioner’s case an amount higher than P40,000.00 (based on the
Bail Bond Guide) where it perceives that an appropriate increase is dictated by the
circumstances.
Same; Same; Discretion to extend bail during the course of the appeal should be
exercised with grave caution and for strong reasons, considering that the accused had been in
fact convicted by the trial court.—It militates emphasis that petitioner is seeking bail on
appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although
the grant of bail on appeal in non-capital offenses is discretionary, when the penalty imposed
on the convicted accused exceeds six years and circumstances exist that point to the
probability of flight if released on bail, then the accused must be denied bail, or his bail
previously granted should be cancelled. In the same vein, the Court has held that the
discretion to extend bail during the course of the appeal should be exercised with grave
caution and for strong reasons, considering that the accused had been in fact convicted by the
trial court.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
     Nitorreda Law Office for petitioner.
     The Solicitor General for the People.
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and travel, are being invoked to set
aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed
conditions on change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of
estafa by the Regional Trial Court of Pasig City1 and was sentenced to four years and two
months of prision correccional, as minimum, to eight years of prision mayor as maximum, “in
addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case
shall it exceed twenty (20) years.”2 He filed a notice of appeal, and moved to be allowed
provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was
denied by the trial court in an order dated February 17, 1999.
After the records of the case were transmitted to the Court of Appeals, petitioner filed with
the said court a Motion to Fix Bail For the Provisional Liberty of Accused-Appellant Pending
Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court.
Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed
to post bail in the amount of P5,500,000.00 and be required to secure a certification/guaranty
from the Mayor of the place of his residence that he is a resident of the area and that he will
remain to be so until final judgment is rendered or in case he transfers residence, it must be
with prior notice to the court and private complainant.”3 Petitioner filed a Reply, contending
that the proposed bail of P5,500,000.00 was violative of his right against excessive bail.
The assailed resolution of the Court of Appeals,4 issued on October 6, 1999, upheld the
recommendation of the Solicitor General; thus, its dispositive portion reads:
WHEREFORE, premises considered, the “Motion to Fix Bail For Provisional Liberty of Accused-
Appellant Pending Appeal” is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a.
Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five Million Five Hundred
Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz.:
. (1)He (accused-appellant) secures a certification/guaranty from the Mayor of the
place of his residence that he is a resident of the area and that he will remain to be
a resident therein until final judgment is rendered or in case he transfers residence,
it must be with prior notice to the court;
. (2)The Commission of Immigration and Deportation (CID) is hereby directed to issue
a hold departure order against accusedappellant; and
. (3)The accused-appellant shall forthwith surrender his passport to the Division Clerk
of Court for safekeeping until the court orders its return;
. (4)Any violation of the aforesaid conditions shall cause the forfeiture of accused-
appellant’s bail bond, the dismissal of appeal and his immediate arrest and
confinement in jail.
SO ORDERED.5
A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by
respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this
petition.
Petitioner sets out the following assignments of error:
The respondent Court of Appeals committed grave abuse of discretion in fixing the bail for the
provisional liberty of petitioner pending appeal in the amount of P5.5 million.
The respondent Court of Appeals committed grave abuse of discretion in basing the bail for
the provisional liberty of the petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioners constitutional liberty of
abode and travel in imposing the other conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount,
effectively denied him his right to bail. He challenges the legal basis of respondent court for
fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private
complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court
never intended for the civil liability of the accused to be a guideline or basis for determining
the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum
amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or
P20,000.00, equivalent to the amount of bail he posted during the trial of the case.6
On the other hand, the Solicitor General maintains that no grave abuse of discretion could
be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering
the severity of the penalty imposed, the weight of the evidence against petitioner, and the
gravity of the offense of which petitioner was convicted by the RTC. He asserted that the
P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed
to petitioner. The Solicitor General further pointed out the probability of flight in case
petitioner is released on bail, it having been established that petitioner was in possession of a
valid passport and visa and had in fact left the country several times during the course of the
proceedings in the lower court. It was also shown that petitioner used different names in his
business transactions and had several abodes in different parts of the country.
As for the conditions imposed by the bail bond, the Solicitor General advanced that all that
the Court of Appeals requires is notice in case of change of address; it does not in any way
impair petitioner’s right to change abode for as long as the court is apprised of his change of
residence during the pendency of the appeal.
Petitioner’s case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of
Court which states:
SEC. 5. Bail, when discretionary.—Upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua or life imprisonment, the court, on application,
may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional liberty under
the same bail bond during the period to appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than
twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be
cancelled, upon a showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
(a)That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b)That the accused is found to have previously escaped from legal confinement, evaded
sentence, or has violated the conditions of his bail without valid justification;
(c)That the accused committed the offense while on probation, parole, or under
conditional pardon;
 (d)That the circumstances of the accused or his case indicate the probability of flight if
released on bail; or
(e)That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.
The appellate court may review the resolution of the Regional Trial Court, on motion and
with notice to the adverse party.7
There is no question that in the present case the Court of Appeals exercised its discretion in
favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for
“humanitarian reasons,” and despite a perceived high risk of flight, as by petitioner’s
admission he went out of the country several times during the pendency of the case, for which
reason the court deemed it necessary to peg the amount of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in the Constitution.8 The
obvious rationale, as declared in the leading case of De la Camara vs. Enage, 9 is that
imposing bail in an excessive amount could render meaningless the right to bail. Thus,
in Villaseñor vs. Abano,10 this Court made the pronouncement that it will not hesitate to
exercise its supervisory powers over lower courts should the latter, after holding the accused
entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting
unreasonable conditions.
x x x There is grim irony in an accused being told that he has a right to bail but at the same
time being required to post such an exorbitant sum. What aggravates the situation is that the
lower court judge would apparently yield to the command of the fundamental law. In reality,
such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely
verbal level. There is reason to believe that any person in the position of petitioner would
under the circumstances be unable to resist thoughts of escaping from confinement, reduced
as he must have been to a state of desperation. In the same breath as he was told he could
be bailed out, the excessive amount required could only mean that provisional liberty would be
beyond his reach. It would have been more forthright if he were informed categorically that
such a right could not be availed of. There would have been no disappointment of
expectations then. It does call to mind these words of Justice Jackson, “a promise to the ear
to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” x x
x11
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises
courts to consider the following factors in the setting of the amount of bail:
(a)Financial ability of the accused to give bail;
(b)Nature and circumstances of the offense;
(c)Penalty for the offense charged;
(d)Character and reputation of the accused;
(e)Age and health of the accused;
(f)Weight of the evidence against the accused;
(g)Probability of the accused appearing at the trial;
(h)Forfeiture of other bail;
(i)The fact that the accused was a fugitive from justice when arrested; and
(j)Pendency of other cases where the accused is on bail.
Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused
may jump bail, it is certainly not precluded from installing devices to ensure against the same.
Options may include increasing the bail bond to an appropriate level, or requiring the person
to report periodically to the court and to make an accounting of his movements.12 In the
present case, where petitioner was found to have left the country several times while the case
was pending, the Court of Appeals required the confiscation of his passport and the issuance
of a hold-departure order against him.
Under the circumstances of this case, we find that appropriate conditions have been
imposed in the bail bond to ensure against the risk of flight, particularly, the combination of
the holddeparture order and the requirement that petitioner inform the court of any change of
residence and of his whereabouts. Although an increase in the amount of bail while the case is
on appeal maybe meritorious, we find that the setting of the amount at P5,500,000.00 is
unreasonable, excessive, and constitutes an effective denial of petitioner’s right to bail.
The purpose for bail is to guarantee the appearance of the accused at the trial,13 or
whenever so required by the court.14 The amount should be high enough to assure the
presence of the accused when required but no higher than is reasonably calculated to fulfill
this purpose.15 To fix bail at an amount equivalent to the civil liability of which petitioner is
charged (in this case, P5,500,000.00) is to permit the impression that the amount paid as bail
is an exaction of the civil liability that accused is charged of; this we cannot allow because bail
is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily
await the judgment of the appellate court.
At the same time, we cannot yield to petitioner’s submission that bail in the instant case be
set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on
August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of
fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True,
the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the
guidance of state prosecutors, although technically not binding upon the courts, “merits
attention, being in a sense an expression of policy of the Executive Branch, through the
Department of Justice, in the enforcement of criminal laws.”16 Thus, courts are advised that
they must not only be aware but should also consider the Bail Bond Guide due to its
significance in the administration of criminal justice.17 This notwithstanding, the Court is not
precluded from imposing in petitioner’s case an amount higher than P40,000.00 (based on the
Bail Bond Guide) where it perceives that an appropriate increase is dictated by the guarantee that he will not escape. Thus, to require him to inform the court every time he
circumstances. changed his residence is already unnecessary.”22

It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the
Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal in non-
capital offenses is discretionary, when the penalty imposed on the convicted accused exceeds
six years and circumstances exist that point to the probability of flight if released on bail, then
the accused must be denied bail, or his bail previously granted should be cancelled.18 In the
same vein, the Court has held that the discretion to extend bail during the course of the
appeal should be exercised with grave caution and for strong reasons, considering that the
accused had been in fact convicted by the trial court.19 In an earlier case, the Court adopted
Senator Vicente J. Francisco’s disquisition on why bail should be denied after judgment of
conviction as a matter of wise discretion; thus:
The importance attached to conviction is due to the underlying principle that bail should be
granted only where it is uncertain whether the accused is guilty or innocent, and therefore,
where that uncertainty is removed by conviction it would, generally speaking, be absurd to
admit to bail. After a person has been tried and convicted the presumption of innocence which
may be relied upon in prior applications is rebutted, and the burden is upon the accused to
show error in the conviction. From another point of view it may be properly argued that the
probability of ultimate punishment is so enhanced by the conviction that the accused is much
more likely to attempt to escape if liberated on bail than before conviction. x x x20
The right to change abode and travel within the Philippines, being invoked by petitioner,
are not absolute rights. Section 6, Article III of the 1987 Constitution states:
The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided
by law.
The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as
contemplated by the above provision.23 The condition imposed by the Court of Appeals is
simply consistent with the nature and function of a bail bond, which is to ensure that
petitioner will make himself available at all times whenever the Court requires his presence.
Besides, a closer look at the questioned condition will show that petitioner is not prevented
from changing abode; he is merely required to inform the court in case he does so.
WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner’s bail pending appeal is
reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court
of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

     Melo (Chairman), Vitug, Panganiban and SandovalGutierrez, JJ., concur.

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by
the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for
twenty years—the maximum penalty for estafa by false pretenses or fraudulent acts allowed Petition partially granted, resolutions affirmed.
by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals,
despite the foregoing considerations and the possibility of flight still wielded its discretion to Note.—The issue of right to bail is rendered academic by the conviction of the accused.
grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having (People vs. Manes, 303 SCRA 231 [1999])
no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of
the evidence against petitioner, we believe that the amount of P200,000.00 is more ——o0o——
reasonable.

Petitioner also contests the condition imposed by the Court of Appeals that he secure “a
certification/guaranty from the Mayor of the place of his residence that he is a resident of the
area and that he will remain to be a resident therein until final judgment is rendered or in case
he transfers residence, it must be with prior notice to the court,” claiming that the same
violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him from
leaving the Philippines unless expressly permitted by the court which issued the order.21 In
fact, the petition submits that “the hold-departure order against petitioner is already sufficient

No. L-72119. May 29, 1987.*
VALENTIN L. LEGASPI, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.
Special Civil Action; Mandamus; The fundamental right to information on matters of
public concern recognized in the Bill of Rights, Article IV of the 1973 Constitution and
amplified in Article IV, Section 7 of the 1987 Constitution can be invoked in a Mandamus
proceeding.—These constitutional provisions are self-executing. They supply the rules by
means of which the right to information may be enjoyed (Cooley, A Treatise on the
Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to
afford access to sources of information. Hence, the fundamental right therein recognized may
be asserted by the people upon the ratification of the constitution without need for any
ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the Legislature
are reasonable conditions and limitations upon the access to be afforded which must, of
necessity, be consistent with the declared State policy of full public disclosure of all
transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the Legislature, the right and
the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the
adoption of the New Charter. Therefore, the right may be properly invoked in a Mandamus
proceeding such as this one.
Same; Same; Same; When a Mandamus proceeding involves the assertion of a public
right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen.—ln the case before Us, the respondent takes issue on the personality of the petitioner
to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano
Agas. At most there is a vague reference to an unnamed client in whose behalf he had
allegedly acted when he made inquiries on the subject (Petition, Rollo,p. 3). But what is clear
upon the face of the Petition is that the petitioner has firmly anchored his case upon the right
of the people to information on matters of public concern, which, by its very nature, is a public
right. It has been held that: * * * when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are regarded as the
real party in interest and the relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result, it being sufficient to show that
he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs.
Tuvera, et. al, G.R. No. L-63915, April 24, 1985, 136 SCRA 27, 36). From the foregoing, it
becomes apparent that when a Mandamus proceeding involves the assertion of a public right,
the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses the right.
Constitutional Law; Civil Service Commission; Government agencies in custody of public
records may regulate the manner of examination but the disclosure of information of public
concern and the access to public records cannot be discretionary on the part of said agencies.
—The authority to regulate the manner of examining public records does not carry with it the
power to prohibit. A distinction has to be made between the discretion to refuse outright the
disclosure of or access to a particular information and the authority to regulate the manner in
which the access is to be afforded. The first is a limitation upon the availability of access to
the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987
Constitution). The second pertains to the government agency charged with the custody of
public records. Its authority to regulate access is to be exercised solely to the end that
damage to, or loss of, public records may be avoided, undue interference with the duties of
said agencies may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaeta, supra). Thus, while
the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of Mandamus in a proper case.
Same; Same; Same; Constitutional guarantee to information on matters of public
concern is not absolute but subject to limitations as may be provided by law.—The
constitutional guarantee to information on matters of public concern is not absolute. It does
not open every door to any and all information. Under the Constitution, access to official
records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7,
second sentence). The law may therefore exempt certain types of information from public
scrutiny, such as those affecting national security (Journal No. 90, September 23, 1986, p. 10;
and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional Commission). It follows
that, in every case, the availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being of public concern or one
that involves public interest, and, (b) not being exempted by law from the operation of the
constitutional guarantee. The threshold question is, therefore, whether or not the information
sought is of public interest or public concern.
Same; Same; Same; Same; No rigid test to determine whether or not a particular
information is of public concern.—In determining whether or not a particular information is of
public concern there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the public. The information sought by the
petitioner in this case is the truth of the claim of certain government employees that they are
civil service eligibles for the positions to which they were appointed. Public office being a
public trust, [Const., Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that
government positions requiring civil service eligibility are occupied only by persons who are
eligibles. Public officers are at all times accountable to the people even as to their eligibilities
for their respective positions. But then, it is not enough that the information sought is of public
interest. For Mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee. In the instant, case while
refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any
provision in the Civil Service Law which would limit the petitioner's right to know who are, and
who are not, civil service eligibles.
We take judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various professions, are
released to the public. Hence, there is nothing secret about one's civil service eligibility, if
actually possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And
when, as in this case, the government employees concerned claim to be civil service eligibles,
the public, through any citizen, has a right to verify their professed eligibilities from the Civil
Service Commission. The civil service eligibility of a sanitarian being of public concern, and in
the absence of express limitations under the law upon access to the register of civil service
eligibles for said position, the duty of the respondent Commission to confirm or deny the civil
service eligibility of any person occupying the position becomes imperative. Mandamus,
therefore lies.
SPECIAL CIVIL ACTION for mandamus to review the decision of the Civil Service Commission.
The facts are stated in the opinion of the Court.
CORTES, J.:
The fundamental right of the people to information on matters of public concern is invoked in
this special civil action for Mandamus instituted by petitioner Valentin L. Legaspi against the
Civil Service Commission. The respondent had earlier denied Legaspi's request for information
on the civil service eligibilities of certain persons employed as sanitarians in the Health
Department of Cebu City. These government employees, Julian Sibonghanoy and Mariano
Agas, had allegedly represented themselves as civil service eligibles who passed the civil
service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano
Agas is guaranteed by the Constitution, and that he has no other plain, speedy and adequate
remedy to acquire the information, petitioner prays for the issuance of the extraordinary writ
of Mandamus to compel the respondent Commission to disclose said information.
This is not the first time that the writ of Mandamus is sought to enforce the fundamental
right to information. The same remedy was resorted to in the case of Tanada et. al. vs.
Tuvera et. al, (G.R. No. L-63915, April 24, 1985, 136 SCRA 27) wherein the people's right to
be informed under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel
the publication in the Official Gazette of various presidential decrees, letters of instructions and
other presidential issuances. Prior to the recognition of the right in said Constitution, the
statutory right to information provided for in the Land Registration/ Act (Section 56, Act 496,
as amended) was claimed by a newspaper editor in another Mandamus proceeding, this time
to demand access to the records of the Register of Deeds for the purpose of gathering data on
real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained recognition
in the Bill of Rights, Article IV, of the 1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizen subject to such limitations as may be
provided by law.
The foregoing provision has been retained and the right therein provided amplified in
Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to
government research data used as basis for policy development." The new provision reads:
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.
These constitutional provisions are self-executing. They supply the rules by means of which
the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations
167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of
information. Hence, the fundamental right therein recognized may be asserted by the people
upon the ratification of the constitution without need for any ancillary act of the
Legislature. (Id. at, p. 165) What may be provided for by the Legislature are reasonable
conditions and limitations upon the access to be afforded which must, of necessity, be
consistent with the declared State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that
whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III,
Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter.
Therefore, the right may be properly invoked in a Mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to this
Petition. He challenges the petitioner's standing to sue upon the ground that the latter does
not possess any clear legal right to be informed of the civil service eligibilities of the
government employees concerned. He calls attention to the alleged failure of the petitioner to
show his actual interest in securing this particular information. He further argues that there is
no ministerial duty on the part of the Commission to furnish the petitioner with the information
he seeks.
1. To be given due course, a Petition for Mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. (Anti-Chinese League of
the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be
an "aggrieved party" in the sense that he possesses a clear legal right to be enforced and a
direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner to
bring this suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's
actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano Agas. At most
there is a vague reference to an unnamed client in whose behalf he had allegedly acted when
he made inquiries on the subject (Petition, Rollo, p. 3). But what is clear upon the face of the
Petition is that the petitioner has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature, is a public right. It has
been held that:
* * * when the question is one of public right and the object of the mandamus is to procure
the enforcement of a public duty, the people are regarded as the real party in interest and the
relator at whose instigation the proceedings are instituted need not show that he has any legal
or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al, G.R. No. L-
63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a Mandamus proceeding involves the
assertion of a public right, the requirement of personal interest is satisfied by the mere fact
that the petitioner is a citizen, and therefore, part of the general "public" which possesses the
right.
The Court had opportunity to define the word "public" in the Subido case, supra, when it
held that even those who have no direct or tangible interest in any real estate transaction are
part of the "public" to whom "(a)ll records relating to registered lands in the Office of the
Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of
the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every
person. To say that only those who have a present and existing interest of a pecuniary
character in the particular information sought are given the right of inspection is to make an
unwarranted distinction. * * * (Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress for the
alleged obstruction of the exercise of the public right. We find no cogent reason to deny his
standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a corresponding duty
on the part of those who govern, to respect and protect that right. That is the very essence of
the Bill of Rights in a constitutional regime. Only governments operating under fundamental
rules defining the limits of their power so as to shield individual rights against its arbitrary
exercise can properly claim to be constitutional (Cooley, supra. at p. 5). Without a
government's acceptance of the limitations imposed upon it by the Constitution in order to
uphold individual liberties, without an acknowledgment on its part of those duties exacted by
the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the New
Charter expressly mandate the duty of the State and its agents to afford access to official
records, documents, papers and in addition, government research data used as basis for policy
development, subject to such limitations as may be provided by law. The guarantee has been
further enhanced in the New Constitution with the adoption of a policy of full public disclosure,
this time "subject to reasonable conditions prescribed by law," in Article II, Section 28 thereof,
to wit:
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest. (Art. II, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court
declared as an imperative duty of the government officials concerned to publish all important
legislative acts and resolutions of a public nature as well as all executive orders and
proclamations of general applicability. We granted Mandamus in said case, and in the process,
We found occasion to expound briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be informed on
matters of public concern is to be given substance and reality. The law itself makes a list of
what should be published in the Official Gazette. Such listing, to our mind, leaves respondents
with no discretion whatsoever as to what must be included or excluded from such
publication. (Tanada v. Tuvera, supra, at 39). (Italics supplied).
The absence of discretion on the part of government agencies in allowing the examination of
public records, specifically, the records in the Office of the Register of Deeds, is emphasized
in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle
curiosity, we do not believe it is the duty under the law of registration officers to concern
themselves with the motives, reasons, and objects of the person seeking access to the
records. It is not their prerogative to see that the information which the records contain is not
flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials having custody thereof which
is called upon to devise a remedy. * * * (Subido v. Ozaeta, supra at 388). (Italics supplied).
It is clear from the foregoing pronouncements of this Court that government agencies are
without discretion in refusing disclosure of, or access to, information of public concern. This is
not to lose sight of the reasonable regulations which may be imposed by said agencies in
custody of public records on the manner in which the right to information may be exercised by
the public. In the Subido case, We recognized the authority of the Register of Deeds to
regulate the manner in which persons desiring to do so, may inspect, examine or copy records
relating to registered lands. However, the regulations which the Register of Deeds may
promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or loss of,
the records may be avoided, that undue interference with the duties of the custodian of the
books and documents and other employees may be prevented, that the right of other persons
entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge,
to regulate the manner of inspection by the public of criminal docket records in the
case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said
administrative case was filed against the respondent judge for his alleged refusal to allow
examination of the criminal docket records in his sala. Upon a finding by the Investigating
Judge that the respondent had allowed the complainant to open and view the subject records,
We absolved the respondent. In effect, We have also held that the rules and conditions
imposed by him upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that the
authority to regulate the manner of examining public records does not carry with it the power
to prohibit. A distinction has to be made between the discretion to refuse outright the
disclosure of or access to a particular information and the authority to regulate the manner in
which the access is to be afforded. The first is a limitation upon the availability of access to
the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987
Constitution). The second pertains to the government agency charged with the custody of
public records. Its authority to regulate access is to be exercised solely to the end that
damage to, or loss of, public records may be avoided, undue interference with the duties of
said agencies may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaeta, supra).
Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the information
of public concern, and to afford access to public records cannot be discretionary on the part of
said agencies. Certainly, its performance cannot be made contingent upon the discretion of
such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory
by any whimsical exercise of agency discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ of Mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to
be enforced and the concomitant duty of the State are unequivocably set forth in the
Constitution. The decisive question on the propriety of the issuance of the writ of Mandamus
in this case is, whether the information sought by the petitioner is within the ambit of the
constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public
concern is a recognition of the essentiality of the free flow of ideas and information in a
democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the
same way that free discussion enables members of society to cope with the exigencies of their
time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information of general interest
aids the people in democratic decision-making (87 Harvard Law Review 1505 [1974] by giving
them a better perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern is not
absolute. It does not open every door to any and all information. Under the Constitution,
access to official records, papers, etc., are "subject to limitations as may be provided by law"
(Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information
from public scrutiny, such as those affecting national security (Journal No. 90, September 23,
1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional
Commission). It follows that, in every case, the availability of access to a particular public
record must be circumscribed by the nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not being exempted by law from the
operation of the constitutional guarantee. The threshold question is, therefore, whether or not
the information sought is of public interest or public concern.
a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access, the government agency has the
burden of showing that the information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the operation of the guarantee. To
hold otherwise will serve to dilute the constitutional right. As aptly observed, ". . . the
government is in an advantageous position to marshall and interpret arguments against
release ..." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to review by the courts, and
in the proper case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no rigid
test which can be applied. "Public concern" like "public interest" is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
in a case by case basis whether the matter at issue is of interest or importance, as it relates to Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez,
or affects the public. Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

The public concern invoked in the case of Tañada v. Tuvera, supra, was the need for
adequate notice to the public of the various laws which are to regulate the actions and Feliciano, J., on leave.
conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered by the
statutory right was the knowledge of those real estate transactions which some believed to Petition granted.
have been registered in violation of the Constitution.
——o0o——
The information sought by the petitioner in this case is the truth of the claim of certain
government employees that they are civil service eligibles for the positions to which they were
appointed. The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and except as to positions which are policy determining,
primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec. 2. [2]).

Public office being a public trust, [Const., Art. XI, Sec: 1] it is the legitimate concern of citizens
to ensure that government

positions requiring civil service eligibility are occupied only by persons who are eligibles. Public
officers are at all times accountable to the people even as to their eligibilities for their
respective positions.

b. But then, it is not enough that the information sought is of public interest. For
Mandamus to lie in a given case, the information must not be among the species exempted by
law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has f ailed to cite any provision in the Civil Service Law which would limit the
petitioner's right to know who are, and who are not, civil service eligibles. We take judicial
notice of the fact that the names of those who pass the civil service examinations, as in bar
examinations and licensure examinations for various professions, are released to the public.
Hence, there is nothing secret about one's civil service eligibility, if actually possessed.
Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case,
the government employees concerned claim to be civil service eligibles, the public, through
any citizen, has a right to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of
express limitations under the law upon access to the register of civil service eligibles for said
position, the duty of the respondent Commission to confirm or deny the civil service eligibility
of any person occupying the position becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for
the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian
Sibonghanoy and Mariano Agas for said position in the Health Department of Cebu City, as
requested by the petitioner Valentin L. Legaspi.
 G.R. No. 74930. February 13, 1989.* operation of the constitutional guarantee [Legaspi v. Civil Service Commission, supra, at p.
542.]
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
Same; Same; Same; Public Interest and Public Concern; The information sought by
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
herein petitioners as to the truth of reports that some opposition members were granted
“NINOY” ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
“clean loans” by the GSIS is a matter of public interest and concern.— The information sought
petitioners, vs. FELICIANO BELMONTE, JR., respondent.
by petitioners in this case is the truth of reports that certain Members of the Batasang
Pambansa belonging to the opposition were able to secure “clean” loans from the GSIS
Constitutional Law; Bill of Rights; Right to Information; Administrative Law; Exhaustion
immediately before the February 7, 1986 election through the intercession of the former First
of Administrative Remedies; As the issue involved herein is the interpretation of the scope of
Lady, Mrs. Imelda R. Marcos. The GSIS is a trustee of contributions from the government and
the constitutional right to information which is purely a legal question, the exception of this
its employees and the administrator of various insurance programs for the benefit of the
case from the application of the general rule on exhaustion of administrative remedies is
latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of
warranted.—Among the settled principles in administrative law is that before a party can be
P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for
allowed to resort to the courts, he is expected to have exhausted all means of administrative
annual appropriations to pay the contributions, premiums, interest and other amounts payable
redress available under the law. The courts for reasons of law, comity and convenience will
to GSIS by the government, as well as the obligations which the Republic of the Philippines
not entertain a case unless the available administrative remedies have been resorted to and
assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to
the appropriate authorities have been given opportunity to act and correct the errors
manage its resources with utmost prudence and in strict compliance with the pertinent laws or
committed in the administrative forum. However, the principle of exhaustion of administrative
rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law
remedies is subject to settled exceptions, among which is when only a question of law is
(CA. No. 186, as amended) was the necessity “to preserve at all times the actuarial solvency
involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No.
of the funds administered by the System” [Second Whereas Clause, P.D. No. 1146.]
L-30396, July 30, 1971,40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984,
Consequently, as respondent himself admits, the GSIS “is not supposed to grant ‘clean loans’.”
129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope
[Comment, p. 8.] It is therefore the ligitimate concern of the public to ensure that these funds
of the constitutional right to information, is one which can be passed upon by the regular
are managed properly with the end in view of maximizing the benefits that accrue to the
courts more competently than the GSIS or its Board of Trustees, involving as it does a purely
insured government employees. Moreover, the supposed borrowers were Members of the
legal question. Thus, the exception of this case from the application of the general rule on
defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were
exhaustion of administrative remedies is warranted. Having disposed of this procedural issue,
therefore expected to be the first to see to it that the GSIS performed its tasks with the
We now address ourselves to the issue of whether or not mandamus lies to compel
greatest degree of fidelity and that all its transactions were above board. In sum, the public
respondent to perform the acts sought by petitioners to be done, in pursuance of their right to
nature of the loanable funds of the GSIS and the public office held by the alleged borrowers
information.
make the information sought clearly a matter of public interest and concern.
Same; Same; Same; The right to information is meant to enhance the widening role of
Same; Same; Right to Privacy; The right to privacy belongs to the individual in his
the citizenry in governmental decision-making as well as in checking abuses in the
private capacity, it cannot be invoked by juridical entities like the GSIS.—When the information
government.—The right to information is an essential premise of a meaningful right to speech
requested from the government intrudes into the privacy of a citizen, a potential conflict
and expression. But this is not to say that the right to information is merely an adjunct of and
between the rights to information and to privacy may arise. However, the competing interests
therefore restricted in application by the exercise of the freedoms of speech and of the press.
of these rights need not be resolved in this case. Apparent from the above-quoted statement
Far from it. The right to information goes hand-in-hand with the constitutional policies of full
of the Court in Morfe is that the right to privacy belongs to the individual in his private
public disclosure and honesty in the public service. It is meant to enhance the widening role of
capacity, and not to public and governmental agencies like the GSIS. Moreover, the right
the citizenry in governmental decision-making as well as in checking abuse in government.
cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v.
Same; Same; Same; Remedial Law; Special Civil Actions; Mandamus; The constitutional Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
right to information is not an absolute right, hence, before mandamus may issue, it must be since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the
clear that the information sought is of “public interest” or “public concern” and that the same party and a corporation would have no such ground for relief.
is not exempted by law from the operation of such constitutional right.— Yet, likely all the
Same; Same; Same; The right to privacy may be invoked only by the person whose
constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the
privacy is claimed to have been violated.—Neither can the GSIS through its General Manager,
people’s right to information is limited to “matters of public concern”, and is further “subject to
the respondent, invoke the right to privacy of its borrowers. The right is purely personal in
such limitations as may be provided by law.” Similarly, the State’s policy of full disclosure is
nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.R.A. 219 (1899);
limited to “transactions involving public interest”, and is “subject to reasonable conditions
Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1985)], and hence may be
prescribed by law.” Hence, before mandamus may issue, it must be clear that the information
invoked only by the person whose privacy is claimed to be violated.
sought is of “public interest” or “public concern”, and is not exempted by law from the
 Same; Same; Right to Information; Adminstrative Law; Government
Corporations; GSIS; The government, whether carrying out its sovereign attributes or running
some business, discharges the same function of service to the people.— Respondent next
asserts that the documents evidencing the loan transactions of the GSIS are private in nature
and hence, are not covered by the Constitutional right to information on matters of public
concern which guarantees “(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions” only, xxx First of all, the “constituent—
ministrant” dichotomy characterizing government function has long been repudiated.
In ACCFA v. Confederation of Unions and Government Corporations and Offices  [G.R. Nos. L-
21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court said that the government,
whether carrying out its sovereign attributes or running some business, discharges the same
function of service to the people, consequently, that the GSIS, in granting the loans, was
exercising a proprietary function would not justify the exclusion of the transactions from the
coverage and scope of the right to information.
Same; Same; Same; Same; Same; Same; Transactions entered into by the GSIS are
within the ambit of the people’s right to be informed pursuant to the constitutional policy of
transparency in governmental dealings.—Considering the intent of the framers of the
Constitution which, though not binding upon the Court, are nevertheless persuasive, and
considering further that government-owned and controlled corporations, whether performing
proprietary or governmental functions are accountable to the people, the Court is convinced
that transactions entered into by the GSIS, a government-controlled corporation created by
special legislation are within the ambit of the people’s right to be informed pursuant to the
constitutional policy of transparency in government dealings.
Same; Same; Same; The right to information does not include the right to compel
custodians of official records to prepare lists, abstracts, summaries and the like.—However,
the same cannot be said with regard to the first act sought by petitioners, i.e., “to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO
and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos.” Although
citizens are afforded the right to information and, pursuant thereto, are entitled to “access to
official records,” the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern. It must be stressed that it is essential for a writ of
mandamus to issue that the applicant has a well-defined, clear and certain legal right to the
thing demanded and that it is the imperative duty of defendant to perform the act required.
The corresponding duty of the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November 29, 1968, 126 SCRA 203; Ocampo v.
Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails
to meet this standard, there being no duty on the part of respondent to prepare the list
requested.
SPECIAL CIVIL ACTION for mandamus with preliminary injunction to review the decision of the
GSIS General Manager.
The facts are stated in the opinion of the Court.
     Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
     The Solicitor General for respondent.
CORTÉS, J.:
Petitioners in this special civil action for mandamus with preliminary injunction invoke their
right to information and pray that respondent be directed:
. (a)to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of
the then First Lady Imelda Marcos; and/or
. (b)to furnish petitioners with certified true copies of the documents evidencing their
respective loans; and/or
. (c)to allow petitioners access to the public records for the subject information.
[Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the following
letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am requesting that
I be furnished with the list of names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2 million each on guarantty (sic) of
Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those
aforesaid MPs. Likewise, may we be furnished with the certified true copies of the
documents evidencing their loan. Expenses in connection herewith shall be borne by us.
If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the Freedom
Constitution of the present regime.
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions or decisions, shall be afforded the citizen subject to such limitation as may
be provided by law. (Art. W, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.
 Very truly yours,      Separate comments were filed by respondent Belmonte and the Solicitor General. After
(Sgd.) RICARDO C. VALMONTE
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Companero:
Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply
your letter to him of June 4,1986 requesting a list of “the opposition members of
Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty
of Mrs. Imelda Marcos.”
My opinion in this regard is that a confidential relationship exists between the GSIS
and all those who borrow from it, whoever they may be; that the GSIS has a duty to its
customers to preserve this confidentiality; and that it would not be proper for the GSIS
to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond positively to
your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Govenrment Service
and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent
another letter, saying that for failure to receive a reply, “(W)e are now considering ourselves
free to do whatever action necesary within the premises to pursue our desired objective in
pursuance of public interest.” [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10) opposition
members, were granted housing loans by the GSIS [Rollo, p. 41.]
petitioners filed a consolidated reply, the petition was given due course and the parties were
required to file their memoranda. The parties having complied, the case was deemed
submitted for decision.
In his comment respondent raises procedural objections to the issuance of a writ of
mandamus, among which is that petitioners have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the Board
of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of
Trustees. It is therefore asserted that since administrative remedies were not exhausted, then
petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz., whether
or not they are entitled to the documents sought, by virtue of their constitutional right to
information. Hence, it is argued that this case falls under one of the exceptions to the principle
of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be allowed to
resort to the courts, he is expected to have exhausted all means of administrative redress
available under the law. The courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have been resorted to and the
appropriate authorities have been given opportunity to act and correct the errors committed in
the administrative forum. However, the principle of exhaustion of administrative remedies is
subject to settled exceptions, among which is when only a question of law is involved [Pascual
v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30,
1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.]
The issue raised by petitioners, which requires the interpretation of the scope of the
constitutional right to information, is one which can be passed upon by the regular courts
more competently than the GSIS or its Board of Trustees, involving as it does a purely legal
question. Thus, the exception of this case from the application of the general rule on
exhaustion of administrative remedies is warranted. Having disposed of this procedural issue,
We now address ourselves to the issue of whether or not mandamus lies to compel
respondent to perform the acts sought by petitioners to be done, in pursuance of their right to
information.
We shall deal first with the second and third alternative acts sought to be done, both of
which involve the issue of whether or not petitioners are entitled to access to the documents
evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving
the constitutional right to information. In Tanada v. Tuvera, G.R. No. 63915, April 24,
1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No.
72119, May 29, 1987,150 SCRA 530, the Court upheld the people’s constitutional right to be
informed of matters of public interest and ordered the government agencies concerned to act
as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6
of which provided:
The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizen subject to such limitations as may be
provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic thought
and data relative to them, and the free exchange of ideas and discussion of issues thereon, is
vital to the democratic government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of the authority
conferred by the people. Denied access to information on the inner workings of government,
the citizenry can become prey to the whims and caprices of those to whom the power had
been delegated. The postulate of public office as a public trust, institutionalized in the
Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power,
would certainly be mere empty words if access to such information of public concern is
denied, except under limitations prescribed by implementing legislation adopted pursuant to
the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather and the
obligation to check the accuracy of information they disseminate. For them, the freedom of
the press and of speech is not only critical, but vital to the exercise of their professions. The
right of access to information ensures that these freedoms are not rendered nugatory by the
government’s monopolizing pertinent information. For an essential element of these freedoms
is to keep open a continuing dialogue or process of communication between the government
and the people. It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be responsive to the people’s
will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed
and thus able to formulate its will intelligently. Only when the participants in the discussion are
aware of the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the freedoms of speech and of the press.
Far from it. The right to information goes hand-in-hand with the constitutional policies of full
public disclosure** and honesty in the public service.*** It is meant to enhance the widening
role of the citizenry in governmental decision-making as well as in checking abuse in
government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people’s right to information is limited to “matters of public concern”,
and is further “subject to such limitations as may be provided by law.” Similarly, the State’s
policy of full disclosure is limited to “transactions involving public interest”, and is “subject to
reasonable conditions prescribed by law.”
Hence, before mandamus may issue, it must be clear that the information sought is of
“public interest” or “public concern”, and is not exempted by law from the operation of the
constitutional guarantee [Legaspi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms “public interest” and
“public concern”. As observed in Legaspi:
In determining whether or not a particular information is of public concern there is no rigid
test which can be applied. “Public concern” like “public interest” is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest or importance, as it relates
to or affects the public. [Ibid, at p. 541.]
In the Tañada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which are to
regulate the actions and conduct of citizens. In Legaspi, it was the “legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are occupied only
by persons who are eligibles” [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure “clean”
loans from the GSIS immediately before the February 7, 1986 election through the
intercession of the former First Lady, Mrs. Imelda R. Marcos.
The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its funds
assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the
Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay
the contributions, premiums, interest and other amounts payable to GSIS by the government,
as employer, as well as the obligations which the Republic of the Philippines assumes or
guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (CA. No.
186, as amended) was the necessity “to preserve at all times the actuarial solvency of the
funds administered by the System” [Second Whereas Clause, P.D. No. 1146.] Consequently,
as respondent himself admits, the GSIS “is not supposed to grant ‘clean loans’.” [Comment, p.
8.] It is therefore the legitimate concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that accrue to the insured
government employees. Moreover, the supposed borrowers were Members of the defunct
Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore
expected to be the first to see to it that the GSIS performed its tasks with the greatest degree
of fidelity and that all its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by
the alleged borrowers make the information sought clearly a matter of public interest and
concern.
A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those excluded
by law.
Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination
of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality
as regards the documents subject of this petition. His position is apparently based merely on
considerations of policy. The judiciary does not settle policy issues. The Court can only declare
what the law is, and not what the law should be. Under our system of government, policy
issues are within the domain of the political branches of the government, and of the people
themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark
case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through
then Mr. Justice Fernando, stated:
. . . The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson
is particularly apt: “The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This
is indeed one of the basic distinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute,
state. In contrast, a system of limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector—protection, in other words, of the dignity and integrity of the
individual—has become increasingly important as modern society has developed. All the forces
of technological age—industrialization, urbanization, and organization—operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society.” [at pp. 444-445.]
When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise. However, the
competing interests of these rights need not be resolved in this case. Apparent from the
above-quoted statement of the Court in Morfe is that the right to privacy belongs to the
individual in his private capacity, and not to public and governmental agencies like the GSIS.
Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the case
of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of
privacy in its name since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy
of its borrowers. The right is purely personal in nature [ Cf. Atkinson v. John Doherty & Co.,
121 Mich 372, 80 N.W. 285, 46 L.R.A. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E.
22, 31 L.R.A. 286 (1895)], and hence may be invoked only by the person whose privacy is
claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy, considering the
public offices they were holding at the time the loans were alleged to have been granted. It
cannot be denied that because of the interest they generate and their newsworthiness, public
figures, most especially those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their actions being subject to
closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398,
April 29,1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the GSIS
are private in nature and hence, are not covered by the Constitutional right to information on
matters of public concern which guarantees “(a)ccess to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions” only.
It is argued that the records of the GSIS, a government corporation performing proprietary
functions, are outside the coverage of the people’s right of access to official records.
It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional policy of
full public disclosure and the right to information which is applicable only to “official”
transactions.
First of all, the “constituent—ministrant” dichotomy characterizing government function
has long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations
and Offices [G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court
said that the government, whether carrying out its sovereign attributes or running some
business, discharges the same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function
would not justify the exclusion of the transactions from the coverage and scope of the right to
information.
 Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within
the coverage of the State policy of full public disclosure is manifest from the records of the
proceedings:
     x x x
THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE.   Very gladly.
MR. SUAREZ.   Thank you.
When we declare “a policy of full public disclosure of all its transactions”—referring to the
transactions of the State—and when we say the “State” which I suppose would include all of
the various agencies, departments, ministries and instrumentalities of the government. . . .
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR SUAREZ. Including government-owned and controlled corporations.
MR. OPLE.   That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say “transactions” which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
MR. OPLE. The “transactions” used here, I suppose, is generic and, therefore, it can cover
both steps leading to a contract, and already a consummated contract, Mr. Presiding
Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the
transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Italics
supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon the
Court, are nevertheless persuasive, and considering further that government-owned and
controlled corporations, whether performing proprietary or governmental functions are
accountable to the people, the Court is convinced that transactions entered into by the GSIS,
a government-controlled corporation created by special legislation are within the ambit of the
people’s right to be informed pursuant to the constitutional policy of transparency in
government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the records may be avoided,
that undue interference with the duties of the custodian of the records may be prevented and
that the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil
Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The
petition, as to the second and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
“to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos.”
Although citizens are afforded the right to information and, pursuant thereto, are entitled
to “access to official records,” the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their desire
to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant
has a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No.
L-20768, November 29, 1968, 126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August
27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being
no duty on the part of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager of
the Government Service Insurance System is ORDERED to allow petitioners access to
documents and records evidencing loans granted to Members of the former Batasang
Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and
manner of inspection, not incompatible with this decision, as the GSIS may deem necessary.
SO ORDERED.
     Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez,
Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grino-Aquino, Medialdea and Regal
ado, JJ., concur.
     Cruz, J., see concurrence
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this separate
opinion simply to say I have nothing to add to Justice Irene R. Cortes’ exceptionally eloquent
celebration of the right to information on matters of public concern.

Petition granted.

Notes.—Exhaustion of administrative remedies is not applicable when: (1) Section 2233 of

the Revised Administrative Code which provides for an appeal to the Office of the President
from an action of the provincial board is one that is available to the municipal council, but not
to the private respondents as in the case at bar; (2) Exhaustion of administrative remedies as
a condition before a litigant may resort to the courts is inapplicable in this case because it is
the petitioner and not the private respondents who initiated the litigations; (3) The issue
before the trial court, is purely a legal one in which case there is no need to exhaust
administrative remedies; and (4) resolution No. 68 is patently illegal because it was passed in
excess of jurisdiction and in such a case exhaustion of administrative remedies is not
necessary. (Velazco vs. Blas, 115 SCRA 540.)

——o0o——
 G.R. No. 92541. November 13, 1991.* individual members concerned, arrived at in an official capacity, be considered private?
Certainly not. As may be gleaned from the decree (PD 1986) creating the respondent
classification board, there is no doubt that its very existence is public in character; it is an
MA. CARMEN G. AQUINO-SARMIENTO, petitioner, vs. MANUEL L. MORATO (in his
office created to serve public interest. It being the case, respondents can lay no valid claim to
capacity as Chairman of the MTRCB) and the MOVIE & TELEVISION REVIEW AND
privacy.
CLASSIFICATION BOARD, respondents.

Same; Same; Same; Decisions of Board and individual voting slips are public in

Administrative Law; Doctrine of exhaustion of administrative remedies; Exceptions.—The
character.—The decisions of the Board and the individual voting slips accomplished by the
doctrine of exhaustion of administrative remedies simply provides that before a party litigant is
members concerned are acts made pursuant to their official functions, and as such, are
allowed resort to the courts, he is required to comply with all administrative remedies available
neither personal nor private in nature but rather public in character. They are, therefore,
under the law (Rosales v. Court of Appeals, 165 SCRA 344 [1988]). The rationale behind this
public records access to which is guaranteed to the citizenry by no less than the fundamental
salutory principle is that for reasons of practical considerations, comity and convenience, the
law of the land. Being a public right, the exercise thereof cannot be made contingent on the
courts of law will not entertain a case until all the available administrative remedies provided
discretion, nay, whim and caprice, of the agency charged with the custody of the official
by law have been resorted to and the appropriate authorities have been given ample
records sought to be examined. The constitutional recognition of the citizen’s right of access to
opportunity to act and to correct the errors committed in the administrative level. If the error
official records cannot be made dependent upon the consent of the members of the board
is rectified, judicial intervention would then be unnecessary. Nonetheless, the doctrine of
concerned, otherwise, the said right would be rendered nugatory.
exhaustion of administrative remedies is not absolute. The applicability of the principle admits
of certain exceptions, such as: 1) when no administrative review is provided by law; 2) when
Same; Same; Exceptions.—The Court is not unaware of RA 6713 (Code of Conduct and
the only question involved is one of law x x x; 3) where the party invoking the doctrine is
Ethical Standards for Public Officials and Employees) which provides, among others, certain
guilty of estoppel x x x; 4) where the challenged administrative action is patently illegal,
exceptions as regards the availability of official records or documents to the requesting public,
arbitrary and oppressive. x x x; 5) where there is unreasonable delay or official inaction that
e.g., closed door Cabinet sessions and deliberations of this Court. Suffice it to state, however,
would greatly prejudice the complainant. x x x; 6) where to exhaust administrative review is
that the exceptions therein enumerated find no application in the case at bar. Petitioner’s
impractical and unreasonable x x x; and 7) where the rule of qualified political agency applies.
request is not concerned with the deliberations of respondent Board but with its documents or
x x x. The issue raised in the instant petition is one of law, hence, the doctrine of non-
records made after a decision or order has been rendered. Neither will the examination involve
exhaustion of administrative remedy relied upon by respondents is inapplicable and cannot be
disclosure of trade secrets or matters pertaining to national security which would otherwise
given any effect.
limit the right of access to official records.
Constitutional Law; Right of access to public records.—We find respondents’ refusal to
Movie and Television Review and Classification Board; Limits on Chairman’s Authority.—
allow petitioner to examine the records of respondent MTRCB, pertaining to the decisions of
Respondent Morato, as Chairman of the MTRCB, is not vested with any authority to reverse or
the review committee as well as the individual voting slips of its members, as violative of
overrule by himself alone a decision rendered by a committee which conducted a review of
petitioner’s constitutional right of access to public records. xxx As We held in Legaspi v. Civil
motion pictures or television programs. The power to classify motion pictures into categories
Service Commission (150 SCRA 530 [1987]), this constitutional provision is self-executory and
such as “General Patronage” or “For Adults Only” is vested with the respondent Board itself
supplies “the rules by means of which the right to information may be enjoyed (Cooley, A
and not with the Chairman thereof (Sec. 3 [e], PD 1986). As Chief Executive Officer,
Treatise on Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating
respondent Morato’s function as Chairman of the Board calls for the implementation and
the duty to afford access to sources of information. Hence, the fundamental right therein
execution, not modification or reversal, of the decisions or orders of the latter (Sec. 5 [a],
recognized may be asserted by the people upon the ratification of the constitution without
Ibid.). The power of classification having been reposed by law exclusively with the respondent
need for any ancillary act of the Legislature (Id. at p. 165). What may be provided for by the
Board, it has no choice but to exercise the same as mandated by law, i.e., as a collegial body,
Legislature are reasonable conditions and limitations upon the access to be afforded which
and not transfer it elsewhere or discharge said power through the intervening mind of
must, of necessity, be consistent with the declared State Policy of full public disclosure of all
another. Delegata potestas non potest delegari—a delegated power cannot be delegated. And
transactions involving public interest.
since the act of classification involves an exercise of the Board’s discretionary power with more
reason the Board cannot, by way of the assailed resolution, delegate said power for it is an
Same; Same; “Public” distinguished from “private” documents.— Respondents contend,
established rule in administrative law that discretionary authority cannot be a subject of
however, that what is rendered by the members of the board in reviewing films and reflected
delegation.
in their individual voting slip is their individual vote of conscience on the motion picture or
television program and as such, makes the individual voting slip purely private and personal;
PETITION for review from the resolution of the Movie and Television Review and
an exclusive property of the member concerned. The term private has been defined as
Classification.
“belonging to or concerning, an individual person, company, or interest”; whereas, public
means “pertaining to, or belonging to, or affecting a nation, state, or community at large”
(People v. Powell, 274 NW 372 [1937]). May the decisions of respondent Board and the The facts are stated in the opinion of the Court.
      Araullo, Zambrano, Gruba, Chua Law Firm for petitioner.
     Francisco Ma. Chanco for respondents.
BIDIN, J.:
At issue in this petition is the citizen’s right of access to official records as guaranteed by the
constitution.
In February 1989, petitioner, herself a member of respondent Movie and Television Review
and Classification Board (MTRCB), wrote its records officer requesting that she be allowed to
examine the board’s records pertaining to the voting slips accomplished by the individual
board members after a review of the movies and television productions. It is on the basis of
said slips that films are either banned, cut or classified accordingly.
Acting on the said request, the records officer informed petitioner that she has to secure
prior clearance from respondent Manuel Morato, as chairman of MTRCB, to gain access to the
records sought to be examined.
Petitioner’s request was eventually denied by respondent Morato on the ground that
whenever the members of the board sit in judgment over a film, their decisions as reflected in
the individual voting slips partake the nature of conscience votes and as such, are purely and
completely private and personal. It is the submission of respondents that the individual voting
slips is the exclusive property of the member concerned and anybody who wants access
thereto must first secure his (the member’s) consent, otherwise, a request therefor may be
legally denied.
Petitioner argues, on the other hand, that the records she wishes to examine are public in
character and other than providing for reasonable conditions regulating the manner and hours
of examination, respondents Morato and the classification board have no authority to deny any
citizen seeking examination of the board’s records.
On February 27, 1989, respondent Morato called an executive meeting of the MTRCB to
discuss, among others, the issue raised by petitioner. In said meeting, seventeen (17)
members of the board voted to declare their individual voting records as classified documents
which rendered the same inaccessible to the public without clearance from the chairman.
Thereafter, respondent Morato denied petitioner’s request to examine the voting slips.
However, it was only much later, i.e., on July 27, 1989, that respondent Board issued
Resolution No. 10-89 which declared as confidential, private and personal, the decision of the
reviewing committee and the voting slips of the members.
Petitioner brought the matter to the attention of the Executive Secretary, which in turn,
referred the same to respondent Morato for appropriate comment.
Another incident which gave rise to this petition occurred in a board meeting held on June
22, 1989. In that meeting, respondent Morato told the board that he has ordered some
deletions on the movie “Mahirap ang Magmahal” notwithstanding the fact that said movie was
earlier approved for screening by the Board with classification “R-18 without cuts”. He
explained that his power to unilaterally change the decision of the Review Committee is
authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June 22, 1988) which allows the
chairman of the board “to downgrade a film (already) reviewed especially those which are
controversial.”
Petitioner informed the Board, however, that respondent Morato possesses no authority to
unilaterally reverse a decision of the review committee under PD 1986 (Creating the Movie
and Television Review and Classification Board).
After the matter was referred by the Deputy Executive Secretary to the Justice Secretary,
the latter opined that PD 1896 does not vest respondent Morato any authority to unilaterally
reverse the decision of the review committee but declined to comment on the constitutionality
of Res. No. 10-89 on the ground that the resolution thereof is a judicial prerogative (Rollo, pp.
38-42).
The Justice Secretary’s opinion to the contrary notwithstanding, respondent Morato opted
to ignore it.
Hence, this petition anchored on the following:
. “A.MORATO AND THE MTRCB BY APPROVING AND ENFORCING RESOLUTION NO.
10-89 ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF
JURISDICTION BECAUSE THE SAME VIOLATES ARTICLE III SECTION 7 OF THE
1987 CONSTITUTION.
. “B.MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND CONSTITUTES AN
UNLAWFUL DELEGATION OF DISCRETIONARY POWERS.
. “C.MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION NO. 1 SERIES
OF 1990 OF THE SECRETARY OF JUSTICE AND BY INSISTING ON THE VALIDITY OF
RESOLUTION
. NO. 88-1-25 ACTED CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF
THEIR JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION.”
Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-1-25 which allows
the Chairman of the Board to unilaterally downgrade a film (already) reviewed especially those
which are controversial and 2) MTRCB RESOLUTION No. 10-89 (dated July 27, 1989) declaring
as strictly confidential, private and personal a) the decision of a reviewing committee which
previously reviewed a certain film and b) the individual voting slips of the members of the
committee that reviewed the film.
Respondents argue at the outset that the instant petition should be dismissed outright for
having failed to comply with the doctrine of exhaustion of administrative remedies.
We disagree. The doctrine of exhaustion of administrative remedies simply provides that
before a party litigant is allowed resort to the courts, he is required to comply with all
administrative remedies available under the law (Rosales v. Court of Appeals, 165 SCRA
344 [1988]). The rationale behind this salutory principle is that for reasons of practical
considerations, comity and convenience, the courts of law will not entertain a case until all the
available administrative remedies provided by law have been resorted to and the appropriate
authorities have been given ample opportunity to act and to correct the errors committed in
the administrative level. If the error is rectified, judicial intervention would then be
unnecessary.
Nonetheless, the doctrine of exhaustion of administrative remedies is not absolute. The
applicability of the principle admits of certain exceptions, such as: 1) when no administrative
review is provided by law; 2) when the only question involved is one of law (Valmonte v.
Valmonte, 170 SCRA 256 [1989], citing Aguilar v. Valencia, 40 SCRA 210 [1971]; Malabanan v.
Ramento, 129 SCRA 359 [1984]; Bagatsing v. Ramirez, 74 SCRA 306; Del Mar v. Philippine
Veterans Administration, 51 SCRA 340 [1973]; Pascual v. Provincial Board, 106 Phil.
466 [1959]; 3) where the party invoking the doctrine is guilty of estoppel (Vda. de Tan v.
Veterans’ Backpay Commission [1969]; 4) where the challenged administrative action is
patently illegal, arbitrary and oppressive (Azur v. Provincial Board, 27 SCRA
50 [1969]; National Development Co. v. Collector of Customs of Manila, 9 SCRA 429 [1963];
5) where there is unreasonable delay or official inaction that would greatly prejudice the
complainant (Gravador v. Mamigo, 20 SCRA 742 [1967]; Azuelo v. Arnaldo, 108 Phil.
293 [1960]; 6) where to exhaust administrative review is impractical and unreasonable
(Cipriano v. Marcelino, 43 SCRA 291); and 7) where the rule of qualified political agency
applies (Demaisip v. Court of Appeals, 106 Phil. 237 [1906]).
The issue raised in the instant petition is one of law, hence, the doctrine of non-exhaustion
of administrative remedy relied upon by respondents is inapplicable and cannot be given any
effect. At any rate, records are replete with events pointing to the fact that petitioner adhered
to the administrative processes in the disposition of the assailed resolutions of public
respondents prior to filing the instant petition by, among others, writing the Executive
Secretary and bringing the matter to the attention of the Office of the President (Rollo, pp.
145-147). Respondents’ claim that petitioner failed to exhaust administrative remedies must
therefore fail.
Having disposed of the procedural objection raised by respondents, We now proceed to
resolve the issues raised by petitioner. In this regard, We find respondents’ refusal to allow
petitioner to examine the records of respondent MTRCB, pertaining to the decisions of the
review committee as well as the individual voting slips of its members, as violative of
petitioner’s constitutional right of access to public records. More specifically, Sec. 7, Art. III of
the Constitution provides that:
“The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.” (italics supplied)
As We held in Legaspi v. Civil Service Commission (150 SCRA 530 [1987]), this constitutional
provision is self-executory and supplies “the rules by means of which the right to information
may be enjoyed (Cooley, A Treatise on Constitutional Limitations 167 [1927]) by guaranteeing
the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of
the constitution without need for any ancillary act of the Legislature (Id. at p. 165). What may
be provided for by the Legislature are reasonable conditions and limitations upon the access to
be afforded which must, of necessity, be consistent with the declared State Policy of full public
disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28).” (See
also Tañada v. Tuvera, 136 SCRA 27 [1985]; Valmonte v. Belmonte, Jr., 170 SCRA
256 [1989]).
Respondents contend, however, that what is rendered by the members of the board in
reviewing films and reflected in their individual voting slip is their individual vote of conscience
on the motion picture or television program and as such, makes the individual voting slip
purely private and personal; an exclusive property of the member concerned.
The term private has been defined as “belonging to or concerning, an individual person,
company, or interest”; whereas, public means “pertaining to, or belonging to, or affecting a
nation, state, or community at large” (People v. Powell, 274 NW 372 [1937]). May the
decisions of respondent Board and the individual members concerned, arrived at in an official
capacity, be considered private? Certainly not. As may be gleaned from the decree (PD 1986)
creating the respondent classification board, there is no doubt that its very existence is public
in character; it is an office created to serve public interest. It being the case, respondents can
lay no valid claim to privacy. The right to privacy belongs to the individual acting in his private
capacity and not to a governmental agency or officers tasked with, and acting in, the
discharge of public duties (See Valmonte v. Belmonte, Jr., supra.) There can be no invasion of
privacy in the case at bar since what is sought to be divulged is a product of action
undertaken in the course of performing official functions. To declare otherwise would be to
clothe every public official with an impregnable mantle of protection against public scrutiny for
their official acts.
Further, the decisions of the Board and the individual voting slips accomplished by the
members concerned are acts made pursuant to their official functions, and as such, are
neither personal nor private in nature but rather public in character. They are, therefore,
public records access to which is guaranteed to the citizenry by no less than the fundamental
law of the land. Being a public right, the exercise thereof cannot be made contingent on the
discretion, nay, whim and caprice, of the agency charged with the custody of the official
records sought to be examined. The constitutional recognition of the citizen’s right of access to
official records cannot be made dependent upon the consent of the members of the board
concerned, otherwise, the said right would be rendered nugatory. As stated by this Court
in Subido v. Ozaeta (80 Phil. 383 [1948]):
“Except, perhaps when it is clear that the purpose of the examinations is unlawful, or sheer,
idle curiosity, we do not believe it is the duty under the law of registration officers to concern
themselves with the motives, reasons, and objects of the person seeking access to the
records. It is not their prerogative to see that the information which the records contain is not
flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials having custody thereof which
is called upon to devise a remedy.” (italics supplied)
It is significant to point out that this Court in the 1948 case of Subido v. Ozaeta, supra, upheld
the right to information based on the statutory right then provided in Sec. 56 of the Land
Registration Act (Act 496, as amended). Consequently, We see no cogent reason why said
right, now constitutionalized, should be given less efficacy and primacy than what the
fundamental law mandates.
The Court is not unaware of RA 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees) which provides, among others, certain exceptions as regards the
availability of official records or documents to the requesting public, e.g., closed door Cabinet
sessions and deliberations of this Court. Suffice it to state, however, that the exceptions
therein enumerated find no application in the case at bar. Petitioner’s request is not concerned
with the deliberations of respondent Board but with its documents or records made after a
decision or order has been rendered. Neither will the examination involve disclosure of trade
secrets or matters pertaining to national security which would otherwise limit the right of
access to official records (See Legaspi v. Civil Service Commission, supra).
We are likewise not impressed with the proposition advanced by respondents that
respondent Morato is empowered by PD 1986 to unilaterally downgrade or upgrade a film
reviewed especially those which are controversial. The pertinent provisions of said decree
provides:
“SECTION 4. Decision.—The decision of the BOARD either approving or disapproving for
exhibition in the Philippines a motion picture, television program, still and other pictorial
advertisement submitted to it for examination and preview must be rendered within a period
of ten (10) days which shall be counted from the date of receipt by the BOARD of an
application for the purpose x x x.
“For each review session, the Chairman of the Board shall designate a sub-committee
composed of at least three BOARD members to undertake the work of review. Any disapproval
or deletion must be approved by a majority of the sub-committee members so designated.
After receipt of the written decision of the sub-committee, a motion for reconsideration in
writing may be made, upon which the Chairman of the Board shall designate a sub-committee
of five BOARD members to undertake a second review session, whose decision on behalf of
the Board shall be rendered through a majority of the sub-committee members so designated
and present at the second review session. This second review session shall be presided over
by the Chairman, or the Vice-Chairman. The decision of the BOARD in the second review
session shall be rendered within five (5) days from the date of receipt of the motion for
reconsideration.
“Every decision of the BOARD disapproving a motion picture, television program or
publicity material for exhibition in the Philippines must be in writing, and shall state the
reasons or grounds for such disapproval. No film or motion picture intended for exhibition at
the moviehouses or theaters or on television shall be disapproved by reason of its topic,
theme or subject matter, but upon the merits of each picture or program considered in its
entirety.
“The second decision of the BOARD shall be final, with the exception of a decision
disapproving or prohibiting a motion picture or television program in its entirety which shall be
appealable to the President of the Philippines, who may himself decide the appeal, or be
assisted either by an ad hoc committee he may create or by the Appeals Committee herein
created.
“An Appeals Committee in the Office of the President of the Philippines is hereby created
composed of a Chairman and four (4) members to be appointed by the President of the
Philippines, which shall submit its recommendation to the President. The Office of the
Presidential Assistant for Legal Affairs shall serve as the Secretariat of the Appeals Committee.
“The decision of the President of the Philippines on any appealed matter shall be final.”
Implementing Rules and Regulations
“SECTION 11. Review by Sub-Committee of Three.—a) A proper application having been filed,
the Chairman of the Board shall, as the exigencies of the service may permit, designate a Sub-
Committee of at least three Board Members who shall meet, with notice to the applicant,
within ten days from receipt of the completed application. The Sub-Committee shall then
preview the motion picture subject of the application.
“b) Immediately after the preview, the applicant or his representative shall withdraw to
await the results of the deliberation of the Sub-Committee. After reaching a decision, the Sub-
Committee shall summon the applicant or his representative and inform him of its decision
giving him an opportunity either to request reconsideration or to offer certain cuts or deletions
in exchange for a better classification. The decision shall be in writing, stating, in case of
disapproval of the film or denial of the classification rating desired or both, the reason or
reasons for such disapproval or denial and the classification considered by the Sub-Committee
member dissenting from the majority opinion may express his dissent in writing.
“c) The decision including the dissenting opinion, if any, shall immediately be submitted to
the Chairman of the Board for transmission to the applicant.
“SECTION 12. Review by Sub-Committee of Five.—Within five days from receipt of a copy
of the decision of the Sub-Committee referred to in the preceding section, the applicant may
file a motion for reconsideration in writing of that decision. On receipt of the motion, the
Chairman of the Board shall designate a Sub-Committee of Five Board Members which shall
consider the motion and, within five days of receipt of such motion, conduct a second preview
of the film. The review shall, to the extent applicable, follow the same procedure provided in
the preceding section.
“SECTION 13. Reclassification.—An applicant desiring a change in the classification rating
given his film by either the Sub-Committee of Three? or Committee of Five mentioned in the
immediately preceding two sections may re-edit such film and apply anew with the Board for
its review and reclassification.
“SECTION 14. Appeal.—The decision of the Committee of Five Board Members in the
second review shall be final, with the exception of a decision disapproving or prohibiting a
motion picture in its entirety which shall be appealable to the President of the Philippines who
may himself decide the appeal or refer it to the Appeals Committee in the Office of the
President for adjudication.
On the other hand, the powers and functions of the MTRCB Chairman are found in Section 5
of the same decree as follows:
“SEC. 5. Executive Officer.—“The Chairman of the BOARD shall be the Chief Executive Officer
of the BOARD. He shall exercise the following functions, powers and duties:
Notes.—Exhaustion of administrative remedies is not applicable where the question in
dispute is purely a legal one or where the controverted act is patently illegal or was performed
without jurisdiction. (Animos vs. Philippine Veterans Affairs Office, 174 SCRA 214.)
The right to privacy belongs to the individual in his private capacity, it cannot be involved
by juridical entities like the GSIS. (Valmonte vs. Belmonte, Jr., 170 SCRA 256.)

“(a)Execute, implement and enforce the decisions, orders, awards, rules and regulations ——o0o——
issued by the BOARD;

“(b)Direct and supervise the operations and the internal affairs of the BOARD;

“(c)Establish the internal organization and administrative procedures of the BOARD, and
recommend to the BOARD the appointment of the necessary administrative and
subordinate personnel; and

“(d)Exercise such other powers and functions and perform such duties as are not
specifically lodged in the BOARD.”

It is at once apparent from a reading of the above provisions of PD 1986 that respondent
Morato, as Chairman of the MTRCB, is not vested with any authority to reverse or overrule by
himself alone a decision rendered by a committee which conducted a review of motion
pictures or television programs.

The power to classify motion pictures into categories such as “General Patronage” or “For
Adults Only” is vested with the respondent Board itself and not with the Chairman thereof
(Sec. 3 [e], PD 1986). As Chief Executive Officer, respondent Morato’s function as Chairman of
the Board calls for the implementation and execution, not modification or reversal, of the
decisions or orders of the latter (Sec. 5 [a], Ibid.). The power of classification having been
reposed by law exclusively with the respondent Board, it has no choice but to exercise the
same as mandated by law, i.e., as a collegial body, and not transfer it elsewhere or discharge
said power through the intervening mind of another. Delegata potestas non potest delegari—a
delegated power cannot be delegated. And since the act of classification involves an exercise
of the Board’s discretionary power with more reason the Board cannot, by way of the assailed
resolution, delegate said power for it is an established rule in administrative law that
discretionary authority cannot be a subject of delegation.

WHEREFORE, the instant petition is GRANTED. Resolution Nos. 10-89 and 88-1-25 issued
by the respondent Board are hereby declared null and void.

SO ORDERED.

     Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez,
Jr., Cruz, Paras, Feliciano, Padilla, Medialdea, Regalado and Davide, Jr., JJ., concur.  Griño-
Aquino, J., No part. Romero, J., did not take part in the deliberations.

Petition granted. Resolution null and void.

 G.R. No. 130716. December 9, 1998.* and imbued with public interest. We may also add that “ill-gotten wealth,” by its very nature,
assumes a public character.
FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as
chairman of the PCGG), respondents. GLORIA A. JOPSON, CELNAN A. JOPSON,
Same; Same; Presidential Commission on Good Government; It is incumbent upon the
SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.
PCGG and its officers, as well as other government representatives, to disclose sufficient
public information on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth.— Considering the intent of the framers of
the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as
Remedial Law; Parties; Access to public documents and records is a public right, and the
other government representatives, to disclose sufficient public information on any proposed
real parties in interest are the people themselves.—The arguments cited by petitioner
settlement they have decided to take up with the ostensible owners and holders of ill-gotten
constitute the controlling decisional rule as regards his legal standing to institute the instant
wealth. Such information, though, must pertain to definite propositions of the government, not
petition. Access to public documents and records is a public right, and the real parties in
necessarily to inter-agency or intra-agency recommendations or communications during the
interest are the people themselves.
stage when common assertions are still in the process of being formulated or are in the
“exploratory” stage. There is a need, of course, to observe the same restrictions on disclosure
of information in general, as discussed earlier—such as on matters involving national security,
Same; Same; When the issue concerns a public right and the object of mandamus is to diplomatic or foreign relations, intelligence and other classified information.
obtain the enforcement of a public duty, the people are regarded as the real parties in
interest.—In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right
and the object of mandamus is to obtain the enforcement of a public duty, the people are
Same; Same; Civil Law; Compromises; Like any other contract, the terms and
regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen
conditions of a compromise must not be contrary to law, morals, good customs, public policy
and as such is interested in the execution of the laws, he need not show that he has any legal
or public order.—In general, the law encourages compromises in civil cases, except with
or special interest in the result of the action. In the aforesaid case, the petitioners sought to
regard to the following matters: (1) the civil status of persons, (2) the validity of a marriage or
enforce their right to be informed on matters of public concern, a right then recognized in
a legal separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction
Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to
of courts, and (6) future legitime. And like any other contract, the terms and conditions of a
be valid and enforceable must be published in the Official Gazette or otherwise effectively
compromise must not be contrary to law, morals, good customs, public policy or public order.
promulgated. In ruling for the petitioners’ legal standing, the Court declared that the right
A compromise is binding and has the force of law between the parties, unless the consent of a
they sought to be enforced “is a public right recognized by no less than the fundamental law
party is vitiated—such as by mistake, fraud, violence, intimidation or undue influence—or
of the land.”
when there is forgery, or if the terms of the settlement are so palpably unconscionable. In the
latter instances, the agreement may be invalidated by the courts.

Same; Same; Because of the satisfaction of the two basic requisites laid down by

decisional law to sustain petitioner’s legal standing, i.e. (1) the enforcement of a public right
Same; Same; Same; Same; The law urges courts to persuade the parties in a civil case
(2) espoused by a Filipino citizen, Court rules that the petition at bar should be allowed.—The
to agree to a fair settlement.— One of the consequences of a compromise, and usually its
instant petition is anchored on the right of the people to information and access to official
primary object, is to avoid or to end a litigation. In fact, the law urges courts to persuade the
records, documents and papers—a right guaranteed under Section 7, Article III of the 1987
parties in a civil case to agree to a fair settlement. As an incentive, a court may mitigate
Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the
damages to be paid by a losing party who shows a sincere desire to compromise.
satisfaction of the two basic requisites laid down by decisional law to sustain petitioner’s legal
standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule
that the petition at bar should be allowed.
Same; Same; Same; Same; In the absence of an express prohibition, the rule on
compromises in civil actions under the Civil Code is applicable to PCGG cases.—In Republic &
Campos, Jr. v. Sandiganbayan, which affirmed the grant by the PCGG of civil and criminal
Same; Same; There is no doubt that the recovery of the Marcoses’ alleged ill-gotten
immunity to Jose Y. Campos and family, the Court held that in the absence of an express
wealth is a matter of public concern and imbued with public interest.— With such
prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG
pronouncements of our government, whose authority emanates from the people, there is no
cases. Such principle is pursuant to the objectives of EO No. 14, particularly the just and
doubt that the recovery of the Marcoses’ alleged ill-gotten wealth is a matter of public concern
expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery.
The same principle was upheld in Benedicto v. Board of Administrators of Television Stations
RPN, BBC and IBC and Republic v. Benedicto, which ruled in favor of the validity of the PCGG
compromise agreement with Roberto S. Benedicto.
Same; Same; Same; Same; Any compromise relating to the civil liability arising from an
offense does not automatically terminate the criminal proceeding against or extinguish the
criminal liability of the malefactor.—Any compromise relating to the civil liability arising from
an offense does not automatically terminate  the criminal proceeding against or extinguish the
criminal liability of the malefactor. While a compromise in civil suits is expressly authorized by
law, there is no similar general sanction as regards criminal liability. The authority must be
specifically conferred. In the present case, the power to grant criminal immunity was
conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A.
Same; Same; Same; Same; Conditions under which the PCGG may exercise authority to
grant immunity from criminal prosecution.—The above provision specifies that the PCGG may
exercise such authority under these conditions: (1) the person to whom criminal immunity is
granted provides information or testifies in an investigation conducted by the Commission; (2)
the information or testimony pertains to the unlawful manner in which the respondent,
defendant or accused acquired or accumulated ill-gotten property; and (3) such information or
testimony is necessary to ascertain or prove guilt or civil liability of such individual.
Same; Same; Same; Same; The PCGG cannot guarantee the dismissal of all such
criminal cases against the Marcoses pending in the courts.— The PCGG, as the government
prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases
against the Marcoses pending in the courts, for said dismissal is not within its sole power and
discretion.
VITUG, J., Separate Opinion:
Remedial Law; Parties; Presidential Commission on Good Government; The agreements
clearly suffer from Constitutional and statutory infirmities.—The Presidential Commission on
Good Government (PCGG) has a limited life in carrying out its tasks and time is running short.
It is thus imperative that the Court must hold even now, and remind PCGG, that it has indeed
exceeded its bounds in entering into the General and Supplemental Agreements. The
agreements clearly suffer from Constitutional and statutory infirmities, to wit: (1) The
agreements contravene the statute in granting criminal immunity to the Marcos heirs; (2)
PCGG’s commitment to exempt from all forms of taxes the property to be retained the Marcos’
heirs controverts the Constitution; and (3) the government’s undertaking to cause the
dismissal of all cases filed against the Marcoses pending before the Sandiganbayan and other
courts encroaches upon judicial powers. I also see, like my other colleagues, too much
vagueness on such items as the period within which the parties shall fulfill their respective
prestations and the lack of appropriate standards for determining the assets to be forfeited by
the government and those to be retained by the Marcoses.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the Court.
     Francisco I. Chavez for and in his own behalf.
     Hernandez & Mendoza for petitioners-intervenors.
     The Solicitor General for public respondents.
PANGANIBAN, J.:
Petitioner asks this Court to define the nature and the extent of the people’s constitutional
right to information on matters of public concern. Does this right include access to the terms
of government negotiations prior to their consummation or conclusion? May the government,
through the Presidential Commission on Good Government (PCGG), be required to reveal the
proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-
gotten wealth? More specifically, are the “General Agreement” and “Supplemental
Agreement,” both dated December 28, 1993 and executed between the PCGG and the Marcos
heirs, valid and binding?
The Case
These are the main questions raised in this original action seeking (1) to prohibit and “[e]njoin
respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing
any agreement with the heirs of the late President Ferdinand E. Marcos x x x relating to and
concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or
abroad—including the so-called Marcos gold hoard”; and (2) to “[c]ompel respondent[s] to
make public all negotiations and agreement, be they ongoing or perfected, and all documents
related to or relating to such negotiations and agreement between the PCGG and the Marcos
heirs.”1
The Facts
Petitioner Francisco I. Chavez, as “taxpayer, citizen and former government official who
initiated the prosecution of the Marcoses and their cronies who committed unmitigated
plunder of the public treasury and the systematic subjugation of the country’s economy,”
alleges that what impelled him to bring this action were several news reports2 bannered in a
number of broadsheets sometime in September 1997. These news items referred to (1) the
alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in
Swiss banks; and (2) the reported execution of a compromise, between the government
(through PCGG) and the Marcos heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information3 and the correlative duty of the
state to disclose publicly all its transactions involving the national interest,4 demands that
respondents make public any and all negotiations and agreements pertaining to PCGG’s task
of recovering the Marcoses’ ill-gotten wealth. He claims that any compromise on the alleged
billions of ill-gotten wealth involves an issue of “paramount public interest,” since it has a
“debilitating effect on the country’s economy” that would be greatly prejudicial to the national
interest of the Filipino people. Hence, the people in general have a right to know the
transactions or deals being contrived and effected by the government.
Respondents, on the other hand, do not deny forging a compromise agreement with the
Marcos heirs. They claim, though, that petitioner’s action is premature, because there is no
showing that he has asked the PCGG to disclose the negotiations and the Agreements. And
even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed
terms and conditions of the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have submitted the subject Agreements to
the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of
Ferdinand E. Marcos, and that the Republic opposed such move on the principal grounds that
(1) said Agreements have not been ratified by or even submitted to the President for approval,
pursuant to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to
comply with their undertakings therein, particularly the collation and submission of an
inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No.
0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses’ attorney-
in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum5 to then
PCGG Chairman Magtanggol Gunigundo, categorically stated:
“This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995
that I have not authorized you to approve the Compromise Agreements of December 28, 1993
or any agreement at all with the Marcoses, and would have disapproved them had they been
submitted to me.
“The Full Powers of Attorney for March 1994 and July 4, 1994, did not authorize you to
approve said Agreements, which I reserve for myself as President of the Republic of the
Philippines.”
The assailed principal Agreement6 reads:
“GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by and between—
The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1,
2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its
Chairman referred to as the FIRST PARTY,
—and—
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee
Marcos Manotoc, Ferdinand R. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
WITNESSETH:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love
of country and of the entire Filipino people, and their desire to set up a foundation and finance
impact projects like installation of power plants in selected rural areas and initiation of other
community projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of
December 21, 1990, that the $356 million belongs in principle to the Republic of the
Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY
has not been able to procure a final judgment of conviction against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a longdrawn out litigation which, as
proven by the past 7 years, is consuming money, time and effort, and is counter- productive
and ties up assets which the FIRST PARTY could otherwise utilize for its Comprehensive
Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and
reconciliation in order to bind the nation’s wounds and start the process of rebuilding this
nation as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may have
against one another, whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the
parties agree as follows:
. 1.The parties will collate all assets presumed to be owned by, or held by other
parties for the benefit of, the PRIVATE PARTY for purposes of determining the
totality of the assets covered by the settlement. The subject assets shall be classified
by the nature thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other
works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g)
miscellaneous assets or assets which could not appropriately fall under any of the
preceding classification. The list shall be based on the full disclosure of the PRIVATE
PARTY to insure its accuracy.
. 2.Based on the inventory, the FIRST PARTY shall determine which shall be ceded to
the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY.
The assets of the PRIVATE PARTY shall be net of, and exempt from, any form of
taxes due the Republic of the Philippines. However, considering the unavailability of
all pertinent and relevant documents and information as to balances and ownership,
the actual specification of assets to be retained by the PRIVATE PARTY shall be
covered by supplemental agreements which shall form part of this Agreement.
. 8.The PARTIES shall submit this and any other implementing Agreements to the
President of the Philippines for approval. In the same manner, the PRIVATE PARTY
shall provide the FIRST PARTY assistance by way of testimony or deposition on any
information it may have that could shed light on the cases being pursued by the
FIRST PARTY against other parties. The FIRST PARTY shall desist from instituting
new suits already subject of this Agreement against the PRIVATE PARTY and cause
the dismissal of all other cases pending in the Sandiganbayan and in other courts.

. 3.Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by . 9.In case of violation by the PRIVATE PARTY of any of the conditions herein
trustees, nominees, agents or foundations are hereby waived over by the PRIVATE contained, the PARTIES shall be restored automatically to the status quo ante the
PARTY in favor of the FIRST PARTY. For this purpose, the parties shall cooperate in signing of this Agreement.
taking the appropriate action, judicial and/or extrajudicial, to recover the same for
the FIRST PARTY. For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon
M. Mesina, Jr., as their only Attorney-in-Fact.
. 4.All disclosures of assets made by the PRIVATE PARTY shall not be used as
evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
shall be valid and binding against said Party for use by the FIRST PARTY in December, 1993, in Makati, Metro Manila.
withdrawing any account and/or recovering any asset. The PRIVATE PARTY
withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by PRESIDENTIAL COMMISSION ON
the Swiss banks and/or Swiss authorities of the $356 million, its accrued interests, GOOD GOVERNMENT
and/or any other account; over which the PRIVATE PARTY waives any right, interest
or participation in favor of the FIRST PARTY. However, any withdrawal or release of By:
any account aforementioned by the FIRST PARTY shall be made in the presence of
any authorized representative of the PRIVATE PARTY. [Sgd.] MAGTANGGOL C. GUNIGUNDO
     Chairman
. 5.The trustees, custodians, safekeepers, depositaries, agents, nominees,
administrators, lawyers, or any other party acting in similar capacity in behalf of the ESTATE OF FERDINAND E. MARCOS, IMELDA R. MAR-
PRIVATE PARTY are hereby informed through this General Agreement to insure that
it is fully implemented and this shall serve as absolute authority from both parties for COS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R.
full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to
withdraw said account and/or assets and any other assets which the FIRST PARTY MARCOS, JR., & IRENE MARCOS-ARANETA
on its own or through the help of the PRIVATE PARTY/their trustees, etc., may
discover. By:

. 6.Any asset which may be discovered in the future as belonging to the PRIVATE [Sgd.] IMELDA ROMUALDEZ-MARCOS
PARTY or is being held by another for the benefit of the PRIVATE PARTY and which
[Sgd.] MA. IMELDA MARCOS-MANOTOC
is not included in the list per No. 1 for whatever reason shall automatically belong to
the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives
FERDINAND R. MARCOS, JR.7
any right thereto.
[Sgd.] IRENE MARCOS-ARANETA
. 7.This Agreement shall be binding on, and inure to the benefit of, the parties and
their respective legal representatives, successors and assigns and shall supersede
Assisted by:
any other prior agreement.
[Sgd.] ATTY. SIMEON M. MESINA, JR.

     Counsel & Attorney-in-Fact”

Petitioner also denounces this supplement to the above Agreement:8

 “SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by and between—
The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under executive Orders Nos. 1,
2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its
Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,
—and—
Estate of Ferdinand E. Marcos represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand R. Marcos, Jr.,
and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
WITNESSETH:
The parties in this case entered into a General Agreement dated Dec. 28, 1993;
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over
local assets located in the Philippines against parties other than the FIRST PARTY.
The parties hereby agree that all expenses related to the recovery and/or withdrawal of all
assets including lawyers’ fees, agents’ fees, nominees’ service fees, bank charges, traveling
expenses and all other expenses related thereto shall be for the account of the PRIVATE
PARTY.
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be
entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said
$356 million Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
     Chairman
ESTATE OF FERDINAND E. MARCOS, IMELDA R. MAR-
COS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR., & IRENE MARCOS-ARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR.9
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
     Counsel & Attorney-in-Fact”
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order10 dated
March 23, 1998, enjoining respondents, their agents and/or representatives from “entering
into, or perfecting and/or executing any agreement with the heirs of the late President
Ferdinand E. Marcos relating to and concerning their ill-gotten wealth.”
Issues
The Oral Argument, held on March 16, 1998, focused on the following issues:
. “(a)Procedural:
. (1)Whether or not the petitioner has the personality or legal standing to file the
instant petition; and
. (2)Whether or not this Court is the proper court before which this action may be
filed.
. (b)Substantive:
. (1)Whether or not this Court could require the PCGG to disclose to the public the
details of any agreement, perfected or not, with the Marcoses; and
. (2)Whether or not there exist any legal restraints against a compromise agreement
between the Marcoses and the PCGG relative to the Marcoses’ ill-gotten wealth.”11
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before
the Court a Motion for Intervention, attaching thereto their Petition in Intervention. They aver
that they are “among the 10,000 claimants whose right to claim from the Marcos Family
and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos,
Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of
Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994  and the Decision of the Swiss
Supreme Court of December 10, 1997.” As such, they claim to have personal and direct
interest in the subject matter of the instant case, since a distribution or disposition of the
Marcos properties may adversely affect their legitimate claims. In a minute Resolution issued
on August 24, 1998, the Court granted their motion to intervene and required the respondents
to comment thereon. The September 25, 1998 Comment12 of the solicitor general on said
motion merely reiterated his aforecited arguments against the main petition.13
The Court’s Ruling
The petition is imbued with merit.
First Procedural Issue:
Petitioner’s Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal
personality to file the instant petition. He submits that since ill-gotten wealth “belongs to the
Filipino people and [is], in truth and in fact, part of the public treasury,” any compromise in
relation to it would constitute a diminution of the public funds, which can be enjoined by a
taxpayer whose interest is for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue “of transcendental importance to the public.” He asserts that ordinary
taxpayers have a right to initiate and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if the issues raised are “of paramount
public interest”; and if they “immeasurably affect the social, economic, and moral well-being
of the people.”
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest,
when the proceeding involves the assertion of a public right,14 such as in this case. He
invokes several decisions15 of this Court which have set aside the procedural matter of locus
standi, when the subject of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that petitioner
has no standing to institute the present action, because no expenditure of public funds is
involved and said petitioner has no actual interest in the alleged agreement. Respondents
further insist that the instant petition is premature, since there is no showing that petitioner
has requested PCGG to disclose any such negotiations and agreements; or that, if he has, the
Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as
regards his legal standing to institute the instant petition. Access to public documents and
records is a public right, and the real parties in interest are the people themselves.16
In Tañada v. Tuvera,17 the Court asserted that when the issue concerns a public right and
the object of mandamus is to obtain the enforcement of a public duty, the people are
regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen
and as such is interested in the execution of the laws, he need not show that he has any legal
or special interest in the result of the action.18 In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution,19 in connection with the rule that laws in order
to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners’ legal standing, the Court declared that the right
they sought to be enforced “is a public right recognized by no less than the fundamental law
of the land.”
Legaspi v. Civil Service Commission ,20 while reiterating Tañada, further declared that
“when a mandamus proceeding involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of
the general ‘public’ which possesses the right.”21
Further, in Albano v. Reyes,22 we said that while expenditure of public funds may not
have been involved under the questioned contract for the development, the management and
the operation of the Manila International Container Terminal, “public interest [was] definitely
involved considering the important role [of the subject contract] x x x in the economic
development of the country and the magnitude of the financial consideration involved.” We
concluded that, as a consequence, the disclosure provision in the Constitution would constitute
sufficient authority for upholding the petitioner’s standing.
Similarly, the instant petition is anchored on the right of the people to information and
access to official records, documents and papers—a right guaranteed under Section 7, Article
III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because
of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner’s
legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the
intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth.
The standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said
petitioners-intervenors have a legal interest in the subject matter of the instant case, since a
distribution or disposition of the Marcoses’ ill-gotten properties may adversely affect the
satisfaction of their claims.
Second Procedural Issue:
The Court’s Jurisdiction
Petitioner asserts that because this petition is an original action for mandamus and one that is
not intended to delay any proceeding in the Sandiganbayan, its having been filed before this
Court was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon
the Supreme Court original jurisdiction over petitions for prohibition and mandamus.
 The solicitor general, on the other hand, argues that the petition has been erroneously
brought before this Court, since there is neither a justiciable controversy nor a violation of
petitioner’s rights by the PCGG. He alleges that the assailed agreements are already the
very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue;
thus, this petition is premature. Furthermore, respondents themselves have opposed the
Marcos heirs’ motion, filed in the graft court, for the approval of the subject Agreements. Such
opposition belies petitioner’s claim that the government, through respondents, has concluded
a settlement with the Marcoses as regards their alleged ill-gotten assets.
In Tañada and Legaspi, we upheld therein petitioners’ resort to a mandamus proceeding,
seeking to enforce a public right as well as to compel performance of a public duty mandated
by no less than the fundamental law.23 Further, Section 5, Article VIII of the Constitution,
expressly confers upon the Supreme Court original jurisdiction over petitions for
certiorari, prohibition, mandamus, quo warranto and habeas corpus.
Respondents argue that petitioner should have properly sought relief before the
Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the
compromise Agreements is pending resolution. There may seem to be some merit in such
argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or
to compel the PCGG to disclose to the public the terms contained in said Agreements.
However, petitioner is here seeking the public disclosure of “all negotiations and agreement,
be they ongoing or perfected, and documents related to or relating to such negotiations and
agreement between the PCGG and the Marcos heirs.”
In other words, this petition is not confined to the Agreements that have already been
drawn, but likewise to any other ongoing or future undertaking towards any settlement on the
alleged Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in
terms of scope, of the twin constitutional provisions on “public transactions.” This broad and
prospective relief sought by the instant petition brings it out of the realm of Civil Case No.
0141.
First Substantive Issue:
Public Disclosure of Terms of
Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements pertaining to a compromise
settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the
following provisions of the Constitution:
“Sec. 7 [Article III]. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.”
“Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public interest.”
Respondents’ opposite view is that the above constitutional provisions refer to completed and
operative official acts, not to those still being considered. As regards the assailed Agreements
entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued,
because said Agreements have not been approved by the President, and the Marcos heirs
have failed to fulfill their express undertaking therein. Thus, the Agreements have not become
effective. Respondents add that they are not aware of any ongoing negotiation for another
compromise with the Marcoses regarding their alleged ill-gotten assets.
The “information” and the “transactions” referred to in the subject provisions of the
Constitution have as yet no defined scope and extent. There are no specific laws prescribing
the exact limitations within which the right may be exercised or the correlative state duty may
be obliged. However, the following are some of the recognized restrictions: (1) national
security matters and intelligence information, (2) trade secrets and banking transactions, (3)
criminal matters, and (4) other confidential information.
0
Limitations to the Right:
. (1)National Security Matters
At the very least, this jurisdiction recognizes the common law holding that there is a
governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters.24 But where there is no need to
protect such state secrets, the privilege may not be invoked to withhold documents and other
information,25 provided that they are examined “in strict confidence” and given “scrupulous
protection.”
Likewise, information on inter-government exchanges prior to the conclusion of treaties
and executive agreements may be subject to reasonable safeguards for the sake of national
interest.26
. (2)Trade Secrets and
Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from national security
matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual
Property Code27 and other related laws) as well as banking transactions (pursuant to the
Secrecy of Bank Deposits Act28) are also exempted from compulsory disclosure.29
. (3)Criminal Matters
Also excluded are classified law enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of criminals,30 which courts may not inquire
into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would
be seriously jeopardized by free public access to, for example, police information regarding
rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.
. (4)Other Confidential Information
The Ethical Standards Act31 further prohibits public officials and employees from using or
divulging “confidential or classified information officially known to them by reason of their
office and not made available to the public.”32
Other acknowledged limitations to information access include diplomatic correspondence,
closed door Cabinet meetings and executive sessions of either house of Congress, as well as
the internal deliberations of the Supreme Court.33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte, Jr.,34 the Court emphasized that the information sought must be
“matters of public concern,” access to which may be limited by law. Similarly, the state policy
of full public disclosure extends only to “transactions involving public interest” and may also be
“subject to reasonable conditions prescribed by law.” As to the meanings of the terms “public
interest” and “public concern,” the Court, in Legaspi v. Civil Service Commission,35 elucidated:
“In determining whether or not a particular information is of public concern there is no rigid
test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest or importance, as it relates
to or affects the public.”
Considered a public concern in the above-mentioned case was the “legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are occupied only
by persons who are eligibles.” So was the need to give the general public adequate
notification of various laws that regulate and affect the actions and conduct of citizens, as held
in Tañada. Likewise did the “public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers (members of the defunct Batasang Pambansa)” qualify
the information sought in Valmonte as matters of public interest and concern. In Aquino-
Sarmiento v. Morato,36 the Court also held that official acts of public officers done in pursuit
of their official functions are public in character; hence, the records pertaining to such official
acts and decisions are within the ambit of the constitutional right of access to public records.
Under Republic Act No. 6713, public officials and employees are mandated to “provide
information on their policies and procedures in clear and understandable language, [and]
ensure openness of information, public consultations and hearings whenever appropriate x x
x,” except when “otherwise provided by law or when required by the public interest.” In
particular, the law mandates free public access, at reasonable hours, to the annual
performance reports of offices and agencies of government and government-owned or
controlled corporations; and the statements of assets, liabilities and financial disclosures of all
public officials and employees.37
In general, writings coming into the hands of public officers in connection with their official
functions must be accessible to the public, consistent with the policy of transparency of
governmental affairs. This principle is aimed at affording the people an opportunity to
determine whether those to whom they have entrusted the affairs of the government are
honestly, faithfully and competently performing their functions as public
servants.38 Undeniably, the essence of democracy lies in the free flow of thought;39 but
thoughts and ideas must be well-informed so that the public would gain a better perspective
of vital issues confronting them and, thus, be able to criticize as well as participate in the
affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.40
The Nature of the Marcoses’
Alleged Ill-Gotten Wealth
We now come to the immediate matter under consideration. Upon the departure from the
country of the Marcos family and their cronies in February 1986, the new government headed
by President Corazon C. Aquino was specifically mandated to “[r]ecover ill-gotten properties
amassed by the leaders and supporters of the previous regime and [to] protect the interest of
the people through orders of sequestration or freezing of assets or accounts.”41 Thus,
President Aquino’s very first executive orders (which partook of the nature of legislative
enactments) dealt with the recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the
Marcoses fled the country, created the PCGG which was primarily tasked to assist the
President in the recovery of vast government resources allegedly amassed by former President
Marcos, his immediate family, relatives and close associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who
had knowledge or possession of ill-gotten assets and properties were warned and, under pain
of penalties prescribed by law, prohibited from concealing, transferring or dissipating them or
from otherwise frustrating or obstructing the recovery efforts of the government.
 On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the
PCGG which, taking into account the overriding considerations of national interest and
national survival, required it to achieve expeditiously and effectively its vital task of recovering
ill-gotten wealth.
With such pronouncements of our government, whose authority emanates from the
people, there is no doubt that the recovery of the Marcoses’ alleged ill-gotten wealth is a
matter of public concern and imbued with public interest.42 We may also add that “ill-gotten
wealth,” by its very nature, assumes a public character. Based on the aforementioned
Executive Orders, “ill-gotten wealth” refers to assets and properties purportedly acquired,
directly or indirectly, by former President Marcos, his immediate family, relatives and close
associates through or as a result of their improper or illegal use of government funds or
properties; or their having taken undue advantage of their public office; or their use of
powers, influences or relationships, “resulting in their unjust enrichment and causing grave
damage and prejudice to the Filipino people and the Republic of the Philippines.” Clearly, the
assets and properties referred to supposedly originated from the government itself. To all
intents and purposes, therefore, they belong to the people. As such, upon reconveyance they
will be returned to the public treasury, subject only to the satisfaction of positive claims of
certain persons as may be adjudged by competent courts. Another declared overriding
consideration for the expeditious recovery of ill-gotten wealth is that it may be used for
national economic recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right
to respondents’ disclosure of any agreement that may be arrived at concerning the Marcoses’
purported ill-gotten wealth.
Access to Information
on Negotiating Terms
But does the constitutional provision likewise guarantee access to information
regarding ongoing negotiations or proposals prior to the final agreement? This same
clarification was sought and clearly addressed by the constitutional commissioners during their
deliberations, which we quote hereunder:43
“MR. SUAREZ. And when we say ‘transactions’ which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
“MR. OPLE. The ‘transactions’ used here, I suppose, is generic and, therefore, it can cover
both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.
“MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of
the transaction?
“MR. OPLE. Yes, subject to reasonable safeguards on the national interest.”
Considering the intent of the framers of the Constitution, we believe that it is incumbent upon
the PCGG and its officers, as well as other government representatives, to disclose sufficient
public information on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to
definite propositions of the government, not necessarily to inter-agency or intra-agency
recommendations or communications44 during the stage when common assertions are still in
the process of being formulated or are in the “exploratory” stage. There is a need, of course,
to observe the same restrictions on disclosure of information in general, as discussed earlier—
such as on matters involving national security, diplomatic or foreign relations, intelligence and
other classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the government and the
Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an
unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a
compromise with the Marcos heirs, provided the agreement does not violate any law.
Prohibited Compromises
In general, the law encourages compromises in civil cases, except with regard to the following
matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3)
any ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6)
future legitime.45 And like any other contract, the terms and conditions of a compromise must
not be contrary to law, morals, good customs, public policy or public order.46 A compromise is
binding and has the force of law between the parties,47 unless the consent of a party is
vitiated—such as by mistake, fraud, violence, intimidation or undue influence—or when there
is forgery, or if the terms of the settlement are so palpably uncon-scionable. In the latter
instances, the agreement may be invalidated by the courts.48
Effect of Compromise
on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid or to
end a litigation.49 In fact, the law urges courts to persuade the parties in a civil case to agree
to a fair settlement.50 As an incentive, a court may mitigate damages to be paid by a losing
party who shows a sincere desire to compromise.51
In Republic & Campos, Jr. v. Sandiganbayan,52 which affirmed the grant by the PCGG of
civil and criminal immunity to Jose Y. Campos and family, the Court held that in the absence
of an express prohibition, the rule on compromises in civil actions under the Civil Code is
applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14,
particularly the just and expeditious recovery of ill-gotten wealth, so that it may be used to
hasten economic recovery. The same principle was upheld in Benedicto v. Board of
Administrators of Television Stations RPN, BBC and IBC 53 and Republic v. Benedicto,54 which
ruled in favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.
Immunity from
Criminal Prosecution
However, any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal liability of
the malefactor.55 While a compromise in civil suits is expressly authorized by law, there is no
similar general sanction as regards criminal liability. The authority must be specifically
conferred. In the present case, the power to grant criminal immunity was conferred on PCGG
by Section 5 of EO No. 14, as amended by EO No. 14-A, which provides:
“SECTION 5. The Presidential Commission on Good Government is authorized to grant
immunity from criminal prosecution to any person who provides information or testifies in any
investigation conducted by such Commission to establish the unlawful manner in which any
respondent, defendant or accused has acquired or accumulated the property or properties in
question in any case where such information or testimony is necessary to ascertain or prove
the latter’s guilt or his civil liability. The immunity thereby granted shall be continued to
protect the witness who repeats such testimony before the Sandiganbayan when required to
do so by the latter or by the Commission.”
The above provision specifies that the PCGG may exercise such authority under these
conditions: (1) the person to whom criminal immunity is granted provides information or
testifies in an investigation conducted by the Commission; (2) the information or testimony
pertains to the unlawful manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is necessary to
ascertain or prove guilt or civil liability of such individual. From the wording of the law, it can
be easily deduced that the person referred to is a witness in the proceeding, not the principal
respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him
and his family was “[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this
Commission, his voluntary surrender of the properties and assets [—] disclosed and declared
by him to belong to deposed President Ferdinand E. Marcos [—] to the Government of the
Republic of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment
to pay a sum of money as determined by the Philippine Government.”56 Moreover, the grant
of criminal immunity to the Camposes and the Benedictos was limited to acts and omissions
prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet
been filed against them before the competent courts.
Validity of the PCGG-Marcos
Compromise Agreements
Going now to the subject General and Supplemental Agreements between the PCGG and the
Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do
not conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal
immunity under Section 5 cannot be granted to the Marcoses, who are the principal
defendants in the spate of ill-gotten wealth cases now pending before the Sandiganbayan. As
stated earlier, the provision is applicable mainly to witnesses who provide information or
testify against a respondent, defendant or accused in an ill-gotten wealth case.
While the General Agreement states that the Marcoses “shall provide the [government]
assistance by way of testimony or deposition on any information [they] may have that could
shed light on the cases being pursued by the [government] against other parties,”57 the
clause does not fully comply with the law. Its inclusion in the Agreement may have been only
an afterthought, conceived in pro forma compliance with Section 5 of EO No. 14, as amended.
There is no indication whatsoever that any of the Marcos heirs has indeed provided vital
information against any respondent or defendant as to the manner in which the latter may
have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from
all forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation of
the Constitution. The power to tax and to grant tax exemptions is vested in the Congress and,
to a certain extent, in the local legislative bodies.58 Section 28 (4), Article VI of the
Constitution, specifically provides: “No law granting any tax exemption shall be passed without
the concurrence of a majority of all the Members of the Congress.” The PCGG has absolutely
no power to grant tax exemptions, even under the cover of its authority to compromise ill-
gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses from paying taxes on
their properties, such law will definitely not pass the test of the equal protection clause under
the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will
constitute class legislation. It will also violate the constitutional rule that “taxation shall be
uniform and equitable.”59
Neither can the stipulation be construed to fall within the power of the commissioner of
internal revenue to compromise taxes. Such authority may be exercised only when (1) there
is reasonable doubt as to the validity of the claim  against the taxpayer, and (2) the taxpayer’s
financial position demonstrates a clear inability to pay.60 Definitely, neither requisite is present
in the case of the Marcoses, because under the Agreement they are effectively conceding the
validity of the claims against their properties, part of which they will be allowed to retain. Nor
can the PCGG grant of tax exemption fall within the power of the commissioner to abate or
cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly
or excessively assessed, or (2) the administration and collection costs involved do not justify
the collection of the tax due.61 In this instance, the cancellation of tax liability is done even
before the determination of the amount due. In any event, criminal violations of the Tax Code,
for which legal actions have been filed in court or in which fraud is involved, cannot be
compromised.62
Third, the government binds itself to cause the dismissal of all cases against the Marcos
heirs, pending before the Sandiganbayan and other courts.63 This is a direct encroachment on
judicial powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that
once a case has been filed before a court of competent jurisdiction, the matter of its dismissal
or pursuance lies within the full discretion and control of the judge. In a criminal case, the
manner in which the prosecution is handled, including the matter of whom to present as
witnesses, may lie within the sound discretion of the government prosecutor;64 but the court
decides, based on the evidence proffered, in what manner it will dispose of the case.
Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the
justice secretary, to withdraw the information or to dismiss the complaint.65 The prosecution’s
motion to withdraw or to dismiss is not the least binding upon the court. On the contrary,
decisional rules require the trial court to make its own evaluation of the merits of the case,
because granting such motion is equivalent to effecting a disposition of the case itself.66
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot
guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts,
for said dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, “whether past, present,
or future, matured or inchoate,” against the Marcoses.67 Again, this all-encompassing
stipulation is contrary to law. Under the Civil Code, an action for future fraud may not be
waived.68 The stipulation in the Agreement does not specify the exact scope of future claims
against the Marcoses that the government thereby relinquishes. Such vague and broad
statement may well be interpreted to include all future illegal acts of any of the Marcos heirs,
practically giving them a license to perpetrate fraud against the government without any
liability at all. This is a palpable violation of the due process and equal protection guarantees
of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also
sets a dangerous precedent for public accountability. It is a virtual warrant for public officials
to amass public funds illegally, since there is an open option to compromise their liability in
exchange for only a portion of their ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which the
parties shall fulfill their respective prestations. It may take a lifetime before the Marcoses
submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which
assets shall be forfeited by the government and which shall be retained by the Marcoses.
While the Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent
of the $356 million Swiss deposits (less government recovery expenses), such sharing
arrangement pertains only to the said deposits. No similar splitting scheme is defined with
respect to the other properties. Neither is there, anywhere in the Agreements, a statement of
the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement
appearing to be manifestly and grossly disadvantageous to the government, in violation of the
Anti-Graft and Corrupt Practices Act,69 invite their indictment for corruption under the said
law.
Finally, the absence of then President Ramos’ approval of the principal Agreement, an
express condition therein, renders the compromise incomplete and unenforceable.
Nevertheless, as detailed above, even if such approval were obtained, the Agreements would
still not be valid.
From the foregoing disquisition, it is crystal clear to the Court that the General and
Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with
the Marcos heirs, are violative of the Constitution and the laws aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements dated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL
AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and
all government functionaries and officials who are or may be directly or indirectly involved in
the recovery of the alleged ill-gotten wealth of the Marcoses and their associates are
DIRECTED to disclose to the public the terms of any proposed compromise settlement, as well
as the final agreement, relating to such alleged illgotten wealth, in accordance with the
discussions embodied in this Decision. No pronouncement as to costs.
SO ORDERED.
     Davide, Jr. (C.J., Chairman), Melo and Quisumbing, JJ., concur.
     Vitug, J., Please see separate opinion.
SEPARATE OPINION
VITUG, J.:
I concur in the results, pro hac vice, for it is paramount that matters of national interest
deserve a proper place in any forum. The procedural rules in the courts of law, like the locus
standi of petitioner Francisco I. Chavez, the propriety of the special legal action
of mandamus used as a vehicle to reach this Court on the issues involved and considered by
the Court, as well as kindred legal technicalities and nicety raised by respondents to thwart
the petition are no trickle matters, to be sure, but I do not see them to be cogent reasons to
deny to the Court its taking cognizance of the case.
It is a cardinal principle in constitutional adjudication that anyone who invokes it has a
personal and substantial interest on the dispute.1 Jurisprudentially there is either the lenient
or the strict approach in the appreciation of legal standing. The liberal approach recognizes
legal standing to raise constitutional issues of nontraditional plaintiffs, such as taxpayers and
citizens, directly affecting them.2 A developing trend appears to be towards a narrow and
exacting approach, requiring that a logical nexus must be shown between the status asserted
and the claim sought to be adjudicated in order to ensure that one is the proper and
appropriate party to invoke judicial power.3
With respect to the right to information, it being a public right where the real parties in
interest are the people themselves in general4 and where the only recognized limitation is
“public concern,” it would seem that the framers of the Constitution have favored the liberal
approach. Rev. Fr. Joaquin Bernas, S.J., a member of the Constitutional Commission,
observes:
The real problem, however, lies in determining what matters are of public concern and what
are not. Unwittingly perhaps, by this provision the Constitution might have opened a Pandora’s
box. For certainly every act of a public officer in the conduct of the governmental process is a
matter of public concern. Jurisprudence in fact has said that “public concern,” like “public
interest,” eludes exact definition and embraces a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives or simply because such
matters arouse the interest of an ordinary citizen.5
Corollarily, there is need of preserving a certain degree of confidentiality in matters involving
national security and public relations, to cite a few,6 and until a balance is struck, the Court
may be constrained on occasions to accept an eclectic notion that frees itself from the
shackles of the trenchant requisites of locus standi.
The Presidential Commission on Good Government (PCGG) has a limited life in carrying out
its tasks and time is running short. It is thus imperative that the Court must hold even now,
and remind PCGG, that it has indeed exceeded its bounds in entering into the General and
Supplemental Agreements. The agreements clearly suffer from Constitutional and statutory
infirmities,7 to wit: (1) The agreements contravene the statute in granting criminal immunity
to the Marcos heirs;8 (2) PCGG’s commitment to exempt from all forms of taxes the property
to be retained the Marcos’ heirs controverts the Constitution;9 and (3) the government’s
undertaking to cause the dismissal of all cases filed against the Marcoses pending before the
Sandiganbayan and other courts encroaches upon judicial powers. I also see, like my other
colleagues, too much vagueness on such items as the period within which the parties shall
fulfill their respective prestations and the lack of appropriate standards for determining the
assets to be forfeited by the government and those to be retained by the Marcoses.
In this respect, while there is legal possibility when the terms of a contract are not totally
invalidated and only those opposed to law, morals, good custom, public order and public
policy are rendered inefficacious, when, however, the assailed provisions can be seen to be of
essence, like here, the agreement in its entirety can be adversely affected. True, the validity
or invalidity of a contract is a matter that generally may not be passed upon in
a mandamus petition, for it is as if petitioner were seeking declaratory relief or an advisory
opinion from this Court over which it has no original jurisdiction,10 the immediacy and
significance of the issues, nevertheless, has impelled the Court to rightly assume jurisdiction
and to resolve the incidental, albeit major, issues that evidently and continually vex the
parties.
WHEREFORE, I vote to grant the petition.
Petition granted.
Note.—Every action must be prosecuted or defended in the name of the real party in
interest. (De Leon vs. Court of Appeals, 277 SCRA 478 [1997])
——o0o——
G.R. No. 133250. May 6, 2003.*
FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES AUTHORITY and AMARI
COASTAL BAY DEVELOPMENT CORPORATION, respondents.
Courts; Judges; Inhibition and Disqualification of Judges; The rule is that a motion to
inhibit must be denied if filed after a member of the Court had already given an opinion on
the merits of the case.—The motion to inhibit Justice Carpio must be denied for three
reasons. First, the motion to inhibit came after Justice Carpio had already rendered his opinion
on the merits of the case. The rule is that a motion to inhibit must be denied if filed after a
member of the Court had already given an opinion on the merits of the case, the rationale
being that “a litigant cannot be permitted to speculate upon the action of the Court x x x (only
to) raise an objection of this sort after a decision has been rendered.”
Same; Same; Same; Judges and justices are not disqualified from participating in a case
just because they have written legal articles on the law involved in the case .—Judges and
justices are not disqualified from participating in a case just because they have written legal
articles on the law involved in the case. As stated by the Court in Republic v. Cocofed,—The
mere fact that, as a former columnist, Justice Carpio has written on the coconut levy will not
disqualify him, in the same manner that jurists will not be disqualified just because they may
have given their opinions as textbook writers on the question involved in a case.
Supreme Court; Judgments; Prospective Application of Judgments; Natural
Resources; Reliance on De Agbayani v. PNB, 38 SCRA 429 (1971) and Benzonan v. Court of
Appeals, 205 SCRA 515 (1992), is misplaced, as these cases would apply if the prevailing law
or doctrine at the time of the signing of the Amended Joint Venture Agreement (JVA) was that
a private corporation could acquire alienable lands of the public domain, and the Decision
annulled the law or reversed this doctrine—the prevailing law before, during and after the
signing of the Amended JVA is that private corporations cannot hold, except by lease,
alienable lands of the public domain.—Amari’s reliance on De Agbayani and Spouses
Benzonan is misplaced. These cases would apply if the prevailing law or doctrine at the time of
the signing of the Amended JVA was that a private corporation could acquire alienable lands of
the public domain, and the Decision annulled the law or reversed this doctrine. Obviously, this
is not the case here. Under the 1935 Constitution, private corporations were allowed to
acquire alienable lands of the public domain. But since the effectivity of the 1973 Constitution,
private corporations were banned from holding, except by lease, alienable lands of the public
domain. The 1987 Constitution continued this constitutional prohibition. The prevailing law
before, during and after the signing of the Amended JVA is that private corporations cannot
hold, except by lease, alienable lands of the public domain. The Decision has not annulled or
in any way changed the law on this matter. The Decision, whether made retroactive or not,
does not change the law since the Decision merely reiterates the law that prevailed since the
effectivity of the 1973 Constitution. Thus, De Agbayani, which refers to a law that is
invalidated by a decision of the Court, has no application to the instant case.
Natural Resources; Reclamation Projects; Government-Owned and Controlled
Corporations; Public Estates Authority (PEA); Bases Conversion Development Authority
(BCDA); PEA and BCDA, Distinguished; While PEA is the central implementing agency tasked
to undertake reclamation projects nationwide. BCDA is an entirely different government entity
which is authorized by law to sell specific government lands that have long been declared by
presidential proclamations as military reservations for use by the different service of the
armed forces under the Department of National Defense.—PEA is the central implementing
agency tasked to undertake reclamation projects nationwide. PEA took the place of
Department of Environment and Natural Resources (“DENR” for brevity) as the government
agency charged with leasing or selling all reclaimed lands of the public domain. In the hands
of PEA, which took over the leasing and selling functions of DENR, reclaimed foreshore lands
are public lands in the same manner that these same lands would have been public lands in
the hands of DENR. BCDA is an entirely different government entity. BCDA is authorized by
law to sell specific government lands that have long been declared by presidential
proclamations as military reservations for use by the different services of the armed forces
under the Department of National Defense. BCDA’s mandate is specific and limited in area,
while PEA’s mandate is general and national. BCDA holds government lands that have been
granted to end-user government entities—the military services of the armed forces. In
contrast, under Executive Order No. 525, PEA holds the reclaimed public lands, not as an end-
user entity, but as the government agency “primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the National Government.”
Same; Well-settled is the doctrine that public land granted to an end-user government
agency for a specific public use may subsequently be withdrawn by Congress from public use
and declared patrimonial property to be sold to private parties .—In Laurel v. Garcia, cited in
the Decision, the Court ruled that land devoted to public use by the Department of Foreign
Affairs, when no longer needed for public use, may be declared patrimonial property for sale
to private parties provided there is a law authorizing such act. Well-settled is the doctrine that
public land granted to an end-user government agency for a specific public use may
subsequently be withdrawn by Congress from public use and declared patrimonial property to
be sold to private parties. R.A. No. 7227 creating the BCDA is a law that declares specific
military reservations no longer needed for defense or military purposes and reclassifies such
lands as patrimonial property for sale to private parties.
Same; Government owned lands, as long as they are patrimonial property, can be sold
to private parties, whether Filipino citizens or qualified private corporations; Once converted to
patrimonial property, the land may be sold by the public or municipal corporation to private
parties, whether Filipino citizens or qualified private corporations .—Government owned lands,
as long they are patrimonial property, can be sold to private parties, whether Filipino citizens
or qualified private corporations. Thus, the so-called Friar Lands acquired by the government
under Act No. 1120 are patrimonial property which even private corporations can acquire by
purchase. Likewise, reclaimed alienable lands of the public domain if sold or transferred to a
public or municipal corporation for a monetary consideration become patrimonial property in
the hands of the public or municipal corporation. Once converted to patrimonial property, the
land may be sold by the public or municipal corporation to private parties, whether Filipino
citizens or qualified private corporations.
Same; AMARI is not precluded from recovering from PEA in the proper proceedings, on
a quantum meruit basis, whatever it may have incurred in implementing the Amended JVA
prior to its declaration of nullity.—Despite the nullity of the Amended JVA, Amari is not
precluded from recovering from PEA in the proper proceedings, on a quantum meruit basis,
whatever Amari may have incurred in implementing the Amended JVA prior to its declaration
of nullity.
BELLOSILLO, J., Separate Concurring and Dissenting Opinion:
Right to Information; Nothing can be more empowering than to compel access to all
information relevant to the negotiation of government contracts including but not limited to
the negotiation of government contracts including but not limited to evaluation reports,
recommendations, legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to any proposed
undertaking.—First, my concurrence. I am happy that this Court has stuck to a civil
libertarian’s honesty and transparency in government service when interpreting the ambit of
the people’s right to information on matters of public concern. Nothing can be more
empowering on this aspect than to compel access to all information relevant to the negotiation
of government contracts including but not limited to evaluation reports, recommendations,
legal and expert opinions, minutes of meetings, terms of reference and other documents
attached to such reports or minutes, all relating to any proposed undertaking. This to me
encourages our people to watch closely the proprietary acts of State functionaries which more
often than not, because they have been cloaked in technical jargon and speculation due to the
absence of verifiable resource materials, have been left unaccounted for public debate and
searching inquiry.
Natural Resources; Reclamation Projects; Since the baseless anxiety about the Amended
Joint Venture Agreement (AJVA) lies only in the mode of recompense for AMARI, and the
AJVA offers an abundance of means to get it done, even granting that the ponencia has
correctly understood the law to prevent permanently the transfer of reclaimed lands to
AMARI, no reason could sanely justify voiding the entire contract and eternally deny a party
its due for its onerous activities. —But the AJVA, which is basically a specie of an “ I do, you
give” contract, is severable in the sense that AMARI’s share in the project need not be paid in
parcels of the reclaimed land but also in cash. The majority cannot set this alternative aside
since lawyers for AMARI are also interested in this substitute option if all else fail. Another
tame solution, so they say, is for the Public Estates Authority to hold title to the reclaimed
lands until transferred to a qualified transferee. This too is possible in the name of equity. To
be sure, the prestation in the PEA-AMARI contract is not contrary to law or public policy since
the government stands to be benefited by AMARI’s part of the bargain while the latter must in
turn be compensated for its efforts; in the present context service and compensation, “I do,
you give” are certainly not illegal considerations. Since the baseless anxiety about the AJVA
lies only in the mode of recompense for AMARI, and the AJVA offers an abundance of means
to get it done, even granting that the ponencia has correctly understood the law to prevent
permanently the transfer of reclaimed lands to AMARI, no reason could sanely justify voiding
the entire contract and eternally deny a party its due for its onerous activities. As we have
held in Republic v. Court of Appeals, x x x it appearing that something compensable was
accomplished by them, following the applicable provision of law and hearkening to the dictates
of equity, that no one, not even the government shall unjustly enrich oneself/itself at the
expense of another, we believe and so hold, that Pasay City and RREC should be paid for the
said actual work done and dredge-fill poured in x x x x
Same; Same; Lands of the private domain, being patrimonial properties, are valid
objects of contracts generally unfettered by the terms and conditions set forth in Secs. 2 and
3 of Art. XII of the Constitution which refer only to lands of the public domain, nor by statutes
for the settlement, prescription or sale of public lands.—Alienable lands of the public
domain, or those available for alienation or disposition, are part of the patrimonial
properties of the State. They are State properties available for private ownership except that
their appropriation is qualified by Secs. 2 and 3 of Art. XII of the Constitution and the public
land laws. Before lands of the public domain are declared available for private acquisition, or
while they remain intended for public use or for public service or for the development of
national wealth, they would partake of properties of public dominion just like mines before
their concessions are granted, in which case, they cannot be alienated or leased or otherwise
be the object of contracts. In contrast, patrimonial properties may be bought or sold or in any
manner utilized with the same effect as properties owned by private persons. Lands of the
private domain, being patrimonial properties, are valid objects of contracts generally
unfettered by the terms and conditions set forth in Secs. 2 and 3 of Art. XII of
the Constitution, which refer only to lands of the public domain, nor by statutes for the
settlement, prescription or sale of public lands.
Same; Same; Reclaimed lands are lands sui generis, and precisely because of this
characterization we cannot lump them up in one telling swoop as lands of the public domain
without due regard for vested rights as well as joint executive and legislative intent to provide
otherwise.—Reclaimed lands are lands sui generis, as the majority would rule, and precisely
because of this characterization we cannot lump them up in one telling swoop as lands of the
public domain without due regard, for vested rights as well as joint executive and legislative
intent to provide otherwise. For, after all, it is the executive and legislative powers that
determine land classification. To illustrate, in Province of Zamboanga del Norte v. City of
Zamboanga this Court took note of the diverging “norms” provided by laws, i.e., the Civil
Code and the Law of Municipal Corporations, in classifying municipal lands into
either public or patrimonial,  and held that “applying the norm obtaining under the principles
constituting the Law of Municipal Corporations, all those x x x properties in question which are
devoted to public service are deemed public; the rest remain patrimonial. Under this norm, to
be considered public, it is enough that the property be held and devoted for governmental
purposes like local administration, public education, public health, etc.” Clearly, the
categorization of government lands depends upon legislative intent which the courts must
implement.
Same; Same; The transfer of the Freedom Islands to the PEA under PD 1085 (both of
the 50% owned by CDCP and the other half owned by the Republic) does not alter the
description of the reclaimed lands—they remain lands of the private domain.—The transfer of
the Freedom Islands to the PEA under PD 1085 (both the fifty percent (50%) owned by CDCP
and the other half owned by the Republic) does not alter the description of the reclaimed
lands—they remain lands of the private domain.  In fact, the conveyance bolsters such
characterization: fifty percent (50%) was obtained from a private owner, CDCP, hence
subsuming it under the private domain. The other fifty percent (50%) belonging to the
Republic is given to PEA in exchange for a participation in the latter’s equity.
Same; Same; By official measures making the reclaimed lands available for the
ownership of private corporations as transferees, the portions of land reclaimed by CDCP were
not intended by the executive and legislative branches of government as proper authorities for
such purpose to be labeled alienable lands of the public domain but lands of the private
domain, hence, generally not subject to the strictures of Secs. 2 and 3 of Art. XII of the
Constitution.—Evidently, by these official measures making the reclaimed lands available for
the ownership of private corporations as transferees, the portions of land reclaimed by DCP
were not intended by the executive and legislative branches” government as proper
authorities for such purpose to be labeled alienable lands of the public domain but lands of
the private domain, hence, generally not subject to the strictures of Secs. 2 and 3 of Art. XII
of the Constitution.  There is none of the intention to devote them to public use in order that
they may be considered as properties till of the public domain. As it is “only the executive and
possibly the legislative department that have the authority and the power to make the
declaration that said property is no longer required for public use,” or for that matter, already
belongs to the private domain, and with the declaration having been made by enlisting the
claimed lands as pieces of assets available for commercial use, they continue as private lands
of the State when transferred to PEA, and from the latter as mode of compensation for AMARI
in the assailed AJVA.
Same; Same; The proscription of Secs. 2 and 3 Art. XII of the Constitution finds no
application in the instant case, especially as regards the 157.84 hectares of reclaimed lands
comprising the Freedom Islands since this real estate is not of the public domain but of the
private domain; Reclaimed lands are not plain and simple patches of the earth as agricultural,
timber or mineral lands are, in the full sense of being products of nature, but are the result of
the intervention of man just like in the extraction of mineral resources, i.e., gold, oil,
petroleum, etc.—The proscription of Secs. 2 and 3 of Art. XII the Constitution finds no
application in the instant case, especially as regards the 157.84 hectares of reclaimed lands
comprising the Freedom Islands. As explained above, this real estate is not of the public
domain but of the private domain. In the same way, the various public land laws in their
essential parts do not govern the alienation of the Freedom Islands. What is more, reclaimed
lands are not plain and simple patches of the earth as agricultural, timber or mineral lands are,
in the full sense of being products of nature, but are the results of the intervention of man just
like in the extraction of mineral resources, i.e., gold, oil, petroleum, etc. Landform
encompasses only six (6) major categories: high mountains, low mountains, hills, plains with
high relief features, plains of moderate relief and plains of slight relief. The terrain types
identified by this system are established by a uniform set of descriptive properties, and
nowhere do we read therein reclaimed lands. The origin of our islands as other islands in the
western Pacific is believed to be “the upholdings of ancient continental rocks with deep
troughs between representing downfolds or down-dropped blocks x x x [h]ence, the elevations
of those islands x x x which rest upon submarine platforms has been aided by deformation of
the earth’s crust”—or islands were not created through the process of reclamation but through
natural formation.
Same; Same; There is nothing essentially wrong with the agreement between PEA and
AMARI in that the latter would receive a portion of the reclamation project if successful—this
is a common payment scheme for such service done; We do not have to be confused
regarding the nature of the lands yet to be reclaimed—they are meant to serve legitimate
commercial ends, hence, lands of the private domain intended by both the executive and
legislative branches of government to be used as commercial assets.—There is nothing
essentially wrong with the agreement between PEA and AMARI in that the latter would receive
a portion of the reclamation project if successful. This is common payment scheme for such
service done. It is recognized under the Spanish Law of Waters and authorized by the PEA
charter as well as by RA 6957. The assailed AJVA is not awarding AMARI a portion of the
Manila Bay, a property of public dominion, but a fraction of the land to be uplifted from it,
a land of the private domain. While the reclamation project concerns a future thing or one
having potential existence, it is nonetheless a legitimate object of a contract. We do not have
to be confused regarding the nature of the lands yet to be reclaimed. They are the same as
the Freedom Islands. Both are meant to serve legitimate commercial ends, hence, lands of the
private domain intended by both the executive and legislative branches of government to be
used as commercial assets. This objective is obvious from PD 1084 which empowers PEA to
“enter into, make, perform and carry out contracts of every class and description, including
loan agreements, mortgages and other types of security arrangements, necessary or incidental
to the realization of its purposes with any person, firm or corporation, private or public, and
with any foreign government or entity.” Executive Order No. 525 (1979) provides that “[a]ll
lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible for
its administration, development, utilization disposition in accordance with the provisions of
Presidential Decree No. 1084. Any and all income that the PEA may derive from the sale, lease
or use of reclaimed lands shall be used in accordance with the provisions of Presidential
Decree No. 1084.” Finally, EO 654 (1981) mandates that “[i]n the disposition its assets and
properties, the Authority shall have the authority to determine the kind and manner of
payment for the transfer thereof to any third party.” Since the principal task of PEA is to
reclaim lands or to approve the execution of it by others, its power to contract must
necessarily involve dealings with the reclaimed lands.
Same; Same; Words, and Phrases; The nomenclature attached to reclaimed lands as
belonging to the public domain is statutory origin—this means, and ought to import, that the
category may change according to legislative intent; Nothing sacrosanct like a constitutional
injunction exists that reclaimed lands be always classified as lands of the public domain .—
Admittedly, our public land laws classify reclaimed lands as alienable lands of the public
domain. Under such taxonomy, the real estate would fall within the prohibition against
ownership by private corporations under Secs. 2 and 3, Art. XII, of the Constitution.  Under the
public land laws, the mode of disposing them is mainly through lease, or if titled in the name
of a government entity, by sale but only to individual persons. But herein lies the rub—the
nomenclature attached to reclaimed lands as belonging to the public domain is statutory in
origin. This means, and ought to import, that the category may change according to legislative
intent. The power to make laws includes the power to alter and real them. Nothing sacrosanct
like a constitutional injunction exists that reclaimed lands be always classified as lands of the
public domain; the class is statutory in foundation and so it may change accordingly, as it was
modified for purposes of the mandate of the Public Estates Authority.
Same; Same; Same; Land Registration; As a matter of ordinary land registration
practice, a special patent is a “patent to grant, cede, and convey full ownership of alienable
and disposable lands formerly covered by a reservation or lands of the public domain” and is
issued upon the “promulgation of a special law or act of Congress or by the Secretary of
Environment and Natural Resources as authorized by an Executive Order of the President;” In
the absence of a general law on the authority of the President to transfer to a government
corporation real property belonging to the Republic, PD 1085 is free to choose the means of
conveying government lands from the Republic to PEA, a government corporation, whether by
special patent or otherwise without adjusting their character as lands of private domains.—As
a matter of ordinary land registration practice, a special patent is a “patent to grant, cede, and
convey full ownership of alienable and disposable lands formerly covered by a reservation or
lands of the public domain” and is issued upon the “promulgation of a special law or act of
Congress or by the Secretary of Environment and Natural Resources as authorized by an
Executive Order of the President.” This meaning of a “special patent” cannot override the
overwhelming executive and legislative intent manifest in PDs 1084 and 1085 to make the
reclaimed lands available for contract purposes. What is important in the definition of “special
patent” is the grant by law of a property of the Republic for the full ownership of the grantee
while the classification of the land is not at all decisive in such description since the “special
law or act of Congress” or the “Executive Order” may classify the subject land differently , as is
done in the instant case. Thus, the Department of Environment and Natural Resources
(DENR), through the Reservation and Special Land Grants Section of the Land Management
Division, is tasked to issue special patents in favor of “government agencies pursuant to
special laws, proclamations, and executive orders x x x (italics supplied),” Verily, in the
absence of a general law on the authority of the President to transfer to a government
corporation real property belonging to the Republic, PD 1085 is free to choose the means of
conveying government lands from the Republic to PEA, a government corporation, whether by
special patent or otherwise without adjusting their character as lands of private domain.
Same; Same; Same; There should be no fear calling reclaimed lands “lands of the
private domain” and making them available for disposition if this be the legislative intent—we
must not hamstring both the Executive and Congress from making full use of reclaimed lands
as an option in following economic goals by the declaration made in the ponencia .—Indeed,
there should be no fear calling reclaimed lands “lands of the private domain” and making them
available for disposition if this be the legislative intent. The situation is no different from the
trade of mineral products such as gold, copper, oil or petroleum. Through joint ventures that
are allowed under the Constitution, our government disposes minerals like private properties.
At the end of the pendulum, if we refer to reclaimed lands as lands of the public
domain inalienable except to individual persons, then it is time to end all reclamation projects
because these efforts entail too much expense and no individual person would have the
capital to undertake it himself. We must not hamstring both the Executive and Congress from
making full use of reclaimed lands as an option in following economic goals by the declaration
made in the ponencia. Courts; Judgments; Right to Information; Giving petitioner a full
recognition of his right to access matters of public concern is a correct step in the appropriate
direction, and anything beyond that, as the ponencia has done previously, is ivory-tower and
unaccountable interventionism at its worst.—Giving petitioner Chavez a full recognition of his
right to access matters of public concern is a correct step in the appropriate direction.
The ponencia should have cut and cut clean there as we must do now. Anything beyond that,
as the ponencia has done previously, is ivory-tower and unaccountable interventionism at its
worst.
PUNO, J., Separate Opinion:
Supreme Court; Judgments; Prospective Application of Judgments; I respectfully submit
that the plea of AMARI for a prospective application of the Court’s decision of 26 July 2002
deserves serious attention—the submission of AMARI that it believed in good faith that its
Amended Joint Venture Agreement (AJVA) does not suffer from an legal infirmity should not
be dismissed with a cavalier attitude .—I respectfully submit that the plea of the private
respondent AMARI for a prospective application of our Decision of July 26, 2002 deserves
serious attention. From the mosaic of facts, it appears that private respondent is a Philippine
corporation whose capital structure includes a heavy mix of public investment and foreign
equity. It further appears that respondent AMARI did not conclude its Amended Joint Venture
Agreement (AJVA) with the government, thru the public respondent Public Estates Authority
(PEA) without exercising the due diligence required by law. Private respondent AMARI claims
and the records support it, that its AJVA passed the proverbial eye of the needle before it was
approved by the Chief Executive of the country. The submission of private respondent AMARI
that it believed in good faith that its AJVA does not suffer from any legal infirmity should not
be dismissed with a cavalier attitude.
Same; Same; Same; Undoubtedly, the Court’s Decision of 26 July 2002 is one of first
impression, and as such it is not unexpected that it will cause serious unsettling effects on
property rights which could have already assumed the color of vested rights.—In sum, the
records give color to the claim respondent AMARI that it should not be blamed when it
consummated the JVA and AJVA with its co-respondent PEA. It relied on our laws enacted
under the 1935, 1973 and 1987 Constitutions and their interpretations by the executive
departments spanning the governments of former Presidents Aquino, Ramos and Estrada, all
favorable to the said JVA and AJVA. Finding no legal impediments to these contracts, it claims
to have invested some P9 billion on the reclamation project. Should this P9 billion investment
just come to naught? The answer, rooted in the concept of fundamental fairness and
anchored on equity, is in the negative. Undoubtedly, our Decision of July 26, 2002 is one of
first impression as the ponente himself described it. As one of first impression, it is not
unexpected that it will cause serious unsettling effects on property rights which could have
already assumed the color of vested rights. Our case law is no stranger to these situations. It
has consistently held that new doctrines should only apply prospectively to avoid inequity and
social injustice.
Same; Same; Same; The plea for prospectivity is based on the ground that our Decision
is novel not because it bars private corporations from acquiring alienable lands for the public
domain except by lease but because for the first time we held, among others, that joint
venture agreements cannot allow entities undertaking reclamation of lands to be paid with
portions of the reclaimed lands.—With due respect, the plea for prospectivity is based on the
ground that our Decision is novel not because it bars private corporations like respondent
AMARI from acquiring alienable lands of the public domain except by lease but because for
the first time we held, among others, that joint venture agreements cannot allow entities
undertaking reclamation of lands to be paid with portions of the reclaimed lands. This is
the first case where we are interpreting that portion of section 2, Article XII of the Constitution
which states that “x x x the exploration, development, and utilization of natural resources shall
be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production sharing agreements
with Filipino citizens or corporations or associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years and under such terms and conditions as
may be provided by law.” Indisputably, this part of section 2, Article XII of the 1987
Constitution is new as it is neither in the 1973 or 1935 Constitutions. Undoubtedly too, our
Decision goes against the grain of understanding of the said provision on the part of the
Executive and Legislative Departments of our government.  The disquieting effects of our
Decision interpreting said provision in a different light cannot be gainsaid.
Same; Same; Due Process; The majority cannot condemn AMARI of acting in bad faith
on the basis of patently inadmissible evidence without running afoul of the rudimentary
requirements of due process.—The allegation that respondent AMARI has not complied with
its obligation to PEA is a matter that cannot be resolved in the case at bar. If at all it can be
raised, it is PEA that should raise it in a proper action for breach of contract or specific
performance. This Court is not a trier of facts and it cannot resolve these allegations that
respondent AMARI violated its contract with PEA. The majority cannot condemn respondent
AMARI of acting bad faith on the basis of patently inadmissible evidence without running afoul
of the rudimentary requirements of due process. At the very least, the majority should hear
respondent AMARI on the issue of its alleged bad faith before condemning it to certain
bankruptcy.
Same; Same; Same; Unjust Enrichment; AMARI may not be paid with reclaimed lands,
but it can be recompensed in some other ways such as in cash; The government will be
unjustly enriched if it will not be made to compensate AMARI for the expenses it incurred in
reclaiming the lands subject of the case at bar.—This is not all. There is another dimension of
unfairness and inequity suffered by respondent AMARI as a consequence of our Decision
under reconsideration. It cannot be denied that respondent AMARI spent substantial amount
of money (the claim is P9 billion), fulfilling its obligation under the AJVA, i.e., provide the
financial, technical, logistical, manpower, personnel and managerial requirements of the
project. Our Decision is silent as a sphinx whether these expenses should be reimbursed.
Respondent AMARI may not be paid with reclaimed lands, but it can be remunerated in some
other ways such as in cash. Our omission to order that respondent AMARI be paid
commensurate to its expenses does not sit well with our decision in Republic of the Philippines
vs. CA and Republic Estate Corporation, et al. where we held: x x x Although Pasay City and
RREC did not succeed in their undertaking to reclaim any area within the subject reclamation
project, it appearing that something compensable was accomplished by them, following the
applicable provision of law and hearkening to the dictates of equity, that no one, not even the
government shall unjustly enrich oneself/itself at the expense of another, we believe, and so
hold, that Pasay City and RREC should be paid for the said actual work done and dredge-fill
poured in . . . ” Needless to state, the government will be unjustly enriched if it will not be
made to compensate the respondent AMARI for the expenses it incurred in reclaiming the
lands subject of the case at bar.
Same; Same; Prospective Effect of Judgments; We should strive for consistency for
rights and duties should be resolved with reasonable predictability and cannot be adjudged by
the luck of lottery.—We should strive for consistency for rights and duties should be resolved
with reasonable predictability and cannot be adjudged by the luck of a lottery. Just a month
ago or on March 20, 2003  this Court en banc resolved a motion for reconsideration in Land
Bank vs. Arlene de Leon, et al., G.R. No. 143275. In this case, we resolved unanimously to
give a prospective effect to our Decision which denied LBP’s petition for review. Written by our
esteemed colleague, Mr. Justice Corona, our resolution held: “Be that as it may, we deem it
necessary to clarify our Decision’s application to and effect on LBP’s pending cases filed as
ordinary appeals before the Court of Appeals. It must first be stressed that the instant case
poses a novel issue; our Decision herein will be a landmark ruling on the proper way appeal
decisions of Special Agrarian Courts. Before this case reached us, LBP had no authoritative
guideline on how to appeal decisions of Special Agrarian Courts considering the seemingly
conflicting provisions of Sections 60 and 61 of RA 6657. More importantly, the Court of
Appeals has rendered conflicting decisions on this precise issue. On the strength of Land Bank
of the Philippines vs. Hon. Feliciano Buenaventura,  penned by Associate Justice Salvador
Valdez, Jr. of the Court of Appeals, certain decisions of the appellate court held that an
ordinary appeal is the proper mode. On the other hand, a decision of the same court, penned
by Associate Justice Romeo Brawner and subject of the instant review, held that the proper
mode of appeal is a petition for review. In another case, the Court of Appeals also entertained
an appeal by the DAR filed as a petition for review. On account of the absence of
jurisprudence interpreting Sections 60 and 61 of RA 6657 regarding the proper way to appeal
decisions of Special Agrarian Courts as well as the conflicting decisions of (the) Court of
Appeals thereon, LBP cannot be blamed for availing of the wrong mode. Based on its own
interpretation and reliance on the Buenaventura ruling. LBP acted on the mistaken belief that
an ordinary appeal is the appropriate manner to question decisions of Special Agrarian Courts.
Hence, in the light of the aforementioned circumstances, we find it proper to emphasize the
prospective application of our Decision dated September 10, 2002. A prospective application of
our Decision is not only grounded on equity and fair play but also based on the constitutional
tenet that rules of procedure shall not impair substantive rights.
Same; Same; Private Enterprise; We cannot invite investors and then decapitate them
without due process of law.—Our Decision under reconsideration has a far reaching effect on
persons and entities similarly situated as the respondent AMARI. Since time immemorial, we
have allowed private corporations to reclaim lands in partnership with government. On the
basis of age-old laws and opinions of the executive, they entered into contracts with
government similar to the contracts in the case at bar and they invested huge sums of money
to help develop our economy. Local banks and even international lending institutions have lent
their financial facilities to support these reclamation projects which government could not
undertake by itself in view of its scant resources. For them to lose their invaluable property
rights when they relied in good faith on these unbroken stream of laws of congress passed
pursuant to our 1935, 1973 and 1987 Constitutions and executive interpretations is a
disquieting prospect. We cannot invite investors and then decapitate them without due
process of law.
YNARES-SANTIAGO, J., Dissenting Opinion:
Natural Resources; Reclamation Projects; Prior statutes evince a legislative intent to
characterize reclaimed lands as alienable public lands; Inasmuch as reclaimed lands are not
public lands, the provisions of the Constitution prohibiting the acquisition by private
corporations of lands of the public domain do not apply .—Clearly, all the foregoing statutes
evince a legislative intent to characterize reclaimed lands as alienable public lands. In other
words, there was never an intention to categorize reclaimed lands as inalienable lands of the
public domain; rather they were expressly made private property of the National Government
subject to disposition to the person who undertook the reclamation works. Inasmuch as
reclaimed lands are not public lands, the provisions of the Constitution prohibiting the
acquisition by private corporations of lands of the public domain do not apply. In the same
vein, the Court, in Director of Lands v. Intermediate Appellate Court, et al., held that public
lands which have become private may be acquired by private corporations.
Same; Same; Obligations and Contracts; It has been opined, and persuasively so, that
the object of a contract is either the thing, right or service which is the subject matter of the
obligation arising from the contract—the object is not necessarily a physical thing that by its
very nature cannot be the subject of a contract; The proper object is the service that was to
be rendered by AMARI, which is the act of reclamation; Surely, reclamation, in and of itself, is
neither contrary to law, morals, good customs, public order nor to public policy .—The main
decision states that the Amended JVA is void because its “object” is contrary law, morals,
good customs, public order or public policy, and that the “object” is also outside the
commerce of man, citing as authority Article 1409 of the Civil Code. However, it has been
opined, and persuasively so, that the object of a contract is either the thing, right or service
which is the subject matter of the obligation arising from the contract. In other words, the
object of the contract is not necessarily a physical thing that by its very nature cannot be the
subject of a contract. The object of a contract can, as it appears so in this case, contemplate a
service. I submit, therefore, that the object herein is not the reclaimed land, no matter how
much emotion these piles of wet soil have stirred up. The proper object is the service that was
to be rendered by Amari, which is the act of reclamation. Surely, reclamation, in and of itself,
is neither contrary to law, morals, good customs, public order nor to public policy. The act of
reclamation is most certainly not outside the commerce of man. It is a vital service utilized by
the Republic to increase the national wealth and, therefore, cannot be cited as an improper
object that could serve to invalidate a contract.
Same; Same; Same; If it is the contemplated transfer of lands of the public domain to a
private corporation which renders the Amended JVA constitutionally infirm, then resort to the
alternative prestation referred to in the Amended JVA will cure the contract.—It is actually
upon this provision of the Amended JVA that its validity hinges. If it is the contemplated
transfer of lands of the public domain to a private corporation which renders the Amended JVA
constitutionally infirm, then resort to the alternative prestation referred to in this provision will
cure the contract. The Civil Code provision on alternative obligations reads as follows: Art.
1199. A person alternatively bound by different prestations shall completely perform one of
them. The creditor cannot be compelled to receive part of one and part of the other
undertaking. In an alternative obligation, there is more than one object, and the fulfillment of
one is sufficient, determined by the choice of the debtor who generally has the right of
election. From the point of view of Amari, once it fulfills its obligations under the Amended
JVA, then it would be entitled to its stipulated share of the Joint Venture Profits. In this
instance, Amari would stand as creditor, with PEA as the debtor who has to choose between
two payment forms: 70% of the Joint Venture Profits, in the form of cash or a corresponding
portion of the land reclaimed. Since it has been ruled that the transfer of any of the reclaimed
lands to Amari would be unconstitutional, one of the prestations of this alternative obligation
has been rendered unlawful. In such case, the following Civil Code provision becomes
pertinent: Art. 1202. The debtor shall lose the right of choice when among the prestations
whereby he is alternatively bound, only one is practicable.
Same; Same; Same; In an alternative obligation, the fact that one of the prestations is
found to be unlawful does not result in the total nullity of the contract; If the stipulations can
be separated from each other, then those which are void will not have any effect, but those
which are valid will be enforced.—We must also remember that, in an alternate obligation, the
fact that one of the prestations is found to be unlawful not result in the total do nullity of the
Amended JVA. The Civil Code provides: Art. 1420. In case of a divisible contract, it the illegal
terms can be separated from the legal ones, the latter may be enforced. As a general rule,
Article 1420 is allied if there are several stipulations in the contract, some of which are valid
and some void. If the stipulations can be separated from each other, then those which are
void will not have any effect, but those which are valid will be enforced. In case of doubt, the
contract must be considered as divisible or separable. The contract itself provides for
severability in case any of its provisions are deemed invalid. Curiously, the main decision
makes no mention of the alternative form of payment provided for in Section 1.1 (g) of the
Amended JVA. A reading of the main decision would lead one to conclude that the transfer of
reclaimed land is the only form of payment contemplated by the parties. In truth, the
questionable provisions of the Amended JVA can be excised without going against the intent
of the parties or the nature of the contract. Removing all references to the transfer of
reclaimed land to Amari or its transferees will leave us with a simple contract for reclamation
services, to be paid for in cash.
Same; Same; Same; Unjust Enrichment; Declaring the Amended JVA completely null
and void would result in the unjust enrichment of the state.—It should also be noted that
declaring the Amended JVA to be completely null and void would result in the unjust
enrichment of the state. The Civil Code provision on human relations states: Art. 19. Every
person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Same; Same; The ruling laid down by the Decision that—“In the hands of the
government agency tasked and authorized to dispose of alienable or disposable lands of the
public domain, these lands are still public, not private land”—is not based on any previous
jurisprudence, nor is it spelled out in any law.—Most significantly, the ruling laid down by the
Decision that: “In the hands of the government agency tasked and authorized to dispose of
alienable or disposable lands of the public domain, these lands are still public, not private
land,” is not based on any previous jurisprudence, nor is it spelled out in any law. It is the
result of process of induction and interpretation of several laws which have not been set side
by side in such a manner before. This pronouncement has never been made before, and yet
now it is law. So when the Decision claimed that it, “does not change the law,” and that it,
“merely reiterates the law that prevailed since the effectivity of the 1973 Constitution,” we
believe such a statement to be inaccurate, to say the least.
Supreme Court; Judgments; Prospective Application of Judgments; Since new doctrines,
which constitute new law, are espoused in the Decision, these should be subject to the
general rule under the Civil Code regarding prospective application .—Since new doctrines,
which constitute new law, are espoused in the Decision, these should be subject to the
general rule under the Civil Code regarding prospective application: Art. 4. Laws shall have no
retroactive effect, unless the contrary is provided. Moreover, lex prospicit, non respicit— the
law looks forward not backward. If decisions that repeal the rulings in older ones are given
only prospective application, why should not doctrines that resolve questions of first
impression be treated in like manner? Therefore, it is my considered view that, if the amended
JVA should be nullified, the ruling must be given prospective effect and all vested rights under
contracts executed during the validity thereof must be respected.
Same; Same; Zeal in the pursuit of justice is admirable, especially amid the cynicism
and pessimism that has prevailed among out people in recent times, in our pursuit of
righteousness, but we must not lose sight of our duty to dispense justice with an even hand,
always mindful that where we tread, the rights of others may be trampled upon underfoot .—
The foregoing are basic principles in civil law which have been brushed aside in the wake of
this Court’s hasten to stamp out what it deems unjust. Zeal in the pursuit of justice is
admirable, to say the least, especially amid the cynicism and pessimism that has prevailed
among our people in recent times. However, in our pursuit of righteousness, we must not lose
sight of our duty to dispense justice with an even hand, always mindful that where we tread,
the rights of others may be trampled upon underfoot.
SANDOVAL-GUTIERREZ, J., Dissenting Opinion:
Supreme Court, Judgments; A dissent is of value because it is “an appeal to the
brooding spirit of the law, to the intelligence of a future day, when a later decision may
possibly correct the error into which the dissenting judge believes the court to have been
betrayed.”—Chief Justice Charles Evans Hughes of the United States Supreme Court stated
that a dissent is of value because it is “an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possibly correct the error into which
dissenting judge believes the court to have been betrayed.”
Natural Resources; While I joined in the initial grant of the petition, I realized, however,
that the tenor of our interpretation of the constitutional prohibition on the acquisition of
reclaimed lands by private corporations is so absolute and circumscribed as to defeat the basic
objectives of its provisions on “The National Economy and Patrimony.” —While I joined in the
initial grant of the petition, I realized, however, that the tenor of our interpretation of the
Constitutional prohibition on the acquisition of reclaimed lands by private corporations is so
absolute and circumscribed as to defeat the basic objectives of its provisions on “The National
Economy and Patrimony.” The Constitution is a flexible and dynamic document. It must be
interpreted to meet its objectives under the complex necessities of the changing times.
Provisions intended to promote social and economic goals are capable of varying
interpretations. My view happens to differ from that of the majority. I am confident however,
that the demands of the nation’s economy and the needs of the majority of our people will
bring the majority Decision and this Dissenting Opinion to a common understanding. Always,
the goals of the Constitution must be upheld, not defeated nor diminished.
Same; Reclamation Projects; Investments on the scale of reclamation projects entail
huge amounts of money, and it is a reality that only private corporations can raise such
amounts.—Infrastructure building is a function of the government and ideally should be
financed exclusively by public funds. However, present circumstances show that this cannot be
done. Thus, private corporations are encouraged to invest in income generating national
construction ventures. Investments on the scale of reclamation projects entail huge amounts
of money. It is a reality that only private corporations can raise such amounts. In the process,
they assist this country in its economic development. Consequently, our government should
not take arbitrary action against these corporate developers. Obviously, the courts play a key
role in all disputes arising in this area of national development.
Same; Same; Statutory Construction; Statutes must be so construed and harmonized
with other statutes as to form a uniform system of jurisprudence .—It is a fundamental rule
that if two or more laws govern the same subject, every effort to reconcile and harmonize
them must be taken. Interpretare et concordare legibus est optimus interpretandi.  Statutes
must be so construed and harmonized with other statutes as to form a uniform system of
jurisprudence. However, if several laws cannot be harmonized, the earlier statute must yield to
the later enactment. The later law is the latest expression of the legislative will. Therefore, it is
PD 1084 and PD 1085 which apply to the issues in this case.
Same; Same; Same; If harmonization and giving effect to the provisions of both sets of
laws is not possible, the special law should be made to prevail over the general law, as it
evinces the legislative intent more clearly.—Moreover, the laws cited in our Decision
are general laws which apply equally to all the individuals or entities embraced by their
provisions. The provisions refer to public lands in general.  Upon the other hand, PD 1084 and
PD 1085 are special laws which relate to particular economic activities, specific kinds of land
and a particular group of persons. Their coverage is specific and limited. More specifically,
these special laws apply to land reclaimed from Manila Bay by private corporations. If
harmonization and giving effect to the provisions of both sets of laws is not possible, the
special law should be made to prevail over the general law, as it evinces the legislative intent
more clearly. The special law is a specific enactment of the legislature which constitutes an
exception to the general statute.
Same; Same; Land reclaimed from the sea cannot fall under any of the last three
categories because it is neither forest or timber, mineral, nor park land—it is, therefore,
agricultural land.—Under the Constitution, lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and natural parks. Land reclaimed from the sea
cannot fall under any of the last three categories because it is neither forest or timber,
mineral, nor park land. It is, therefore, agricultural land. Agricultural land of the public domain
may be alienated. However, the Constitution states that private corporations may not hold
such alienable land except by lease. It follows that AMARI, being a private corporation, cannot
hold any reclaimed area. But let it be made clear that PD 1084 transfers the public agricultural
land formed by reclamation to the “ownership and administration” of PEA, a government
owned corporation. The transfer is not to AMARI, a private corporation, hence, the
constitutional prohibition does not apply. Corollarily, under PD 1085, PEA is empowered to
subsequently transfer to the contractor portion or portions of the land reclaimed or to be
reclaimed.
Same; Same; As PEA does not exercise sovereign functions of government since it
handles business activities for the government, the property in its hands, not being of public
dominion, is held in a patrimonial capacity which PEA may sell to private corporations without
violating the Constitution.—Does the Constitution restrain PEA from effecting such transfer to
a private corporation? Under Article 421 of the Civil Code, all property of the State which is not
of public dominion is patrimonial. PEA does not exercise sovereign functions of government.  It
handles business activities for the government. Thus, the property in its hands, not being of
public dominion, is held in a patrimonial capacity. PEA, therefore, may sell this property to
private corporations without violating the Constitution. It is relevant to state that there is no
constitutional obstacle to the sale of real estate held by government owned corporations, like
the National Development Corporation, the Philippine National Railways, the National Power
Corporation, etc. to private corporations. Similarly, why should PEA, being a government
owned corporation, be prohibited to sell its reclaimed lands to private corporations?
Same; Same; I take exception to the view of the majority that after the enactment of
the 1935 Constitution, Section 58 of Act 2874 continues to be applicable up to the present and
that the long established state policy is to retain for the government title and ownership of
government reclaimed land—this simply is an inaccurate statement of current government
policy.—I take exception to the view of the majority that after the enactment of the 1935
Constitution, Section 58 of Act 2874 continues to be applicable up to the present and that the
long established state policy is to retain for the government title and ownership of government
reclaimed land. This simply is an inaccurate statement of current government policy. When a
government decides to reclaim the land, such as the area comprising and surrounding the
Cultural Center Complex and other parts of Manila Bay, it reserves title only to the roads,
bridges, and spaces allotted for government buildings. The rest is designed, as early as the
drawing board stage, for sale and use as commercial, industrial, entertainment or services
oriented ventures. The idea of selling lots and earning money for the government is the
motive why the reclamation was planned and implemented in the first place.
Same; Same; Private Enterprise; It would be most unfair and a violation of procedural
and substantive rights to encourage investors, both Filipino and foreign, to form corporations,
build infrastructures, spend money and efforts only to be told that the invitation to invest is
unconstitutional or illegal with absolutely no indication of how they could be compensated for
their work.—May I point out that there are other planned or on-going reclamation projects in
the Philippines. The majority opinion does not only strike down the Joint Venture Agreement
(JVA) between AMARI and PEA but will also adversely affect or nullify all other reclamation
agreements in the country. I doubt if government financial institutions, like the Development
Bank of the Philippines, the Government Service Insurance System, the Social Security System
or other agencies, would risk a major portion of their funds in a problem-filled and highly
speculative venture, like reclamation of land still submerged under the sea. Likewise, there
certainly are no private individuals, like business tycoons and similar entrepreneurs, who
would undertake a major reclamation project without using the corporate device to raise and
disburse funds and to recover the amounts expended with a certain margin of profits. And
why should corporations part with their money if there is no assurance of payment, such as a
share in the land reclaimed or to be reclaimed? It would be most unfair and a violation of
procedural and substantive rights to encourage investors, both Filipino and foreign, to form
corporations, build infrastructures, spend money and efforts only to be told that the invitation
to invest is unconstitutional or illegal with absolutely no indication of how they could be
compensated for their work.
Right to Information; Contracts; I believe that PEA does not have to reveal what was
going on from the very start and during the negotiations with a private party—as long as the
parties have the legal capacity to enter into a valid contract over an appropriate subject
matter, they do not have to make public, especially to competitors, the initial bargaining, the
give-and-take arguments, the mutual concessions, the moving from one position to another,
and other preliminary steps leading to the drafting and execution of the contract; At any rate,
recent developments appear to have mooted this issue, and anything in the Decision which
apparently pinpointing the stage where the right to information appears is obiter.—It has to be
stressed that the petition does not actually assail the validity of the JVA between PEA and
AMARI. The petition mainly seeks to compel PEA to disclose all facts on the then on-going
negotiations with respondent AMARI with respect to the reclamation of portions of Manila Bay.
Petitioner relies on the Constitutional provision that the right of the people to information on
matters of public concern shall be recognized and that access to papers pertaining to official
transactions shall be afforded the citizen. I believe that PEA does not have to reveal what was
going on from the very start and during the negotiations with a private party. As long as the
parties have the legal capacity to enter into a valid contract over an appropriate subject
matter, they do not have to make public, especially to competitors, the initial bargaining, the
give-and-take arguments, the mutual concessions, the moving from one position to another,
and other preliminary steps leading to the drafting and execution of the contract. As in
negotiations leading to a treaty or international agreement, whether sovereign or commercial
in nature, a certain amount of secrecy is not only permissible but compelling. At any rate,
recent developments appear to have mooted this issue, and anything in the Decision which
apparently approves publicity during ongoing negotiations without pinpointing the stage where
the right to information appears is obiter. The motions for reconsideration all treat the JVA as
a done thing, something already concrete, if not finalized.
MOTION FOR RECONSIDERATION of the decisions of the Supreme Court.
The facts are stated in the resolution of the Court.
     Francisco I. Chavez for and in his own behalf.
     Romulo, Mabanta, Buenaventura, Sayoc & Delos Angeles for Central Bay Reclamation,
etc.
     Abello, Concepcion, Regala, & Cruz for movants Foreign Investors Italian-Thai Dev’t. &
Centasia etc.
     Azcuna, Yorac, Sarmiento, Arroyo & Chua Law Offices for Amari Coastal Bay, etc.
     Zaldy V. Trespeses for intervenor Prime Orion Phils., Inc.
     Sugay Law for movants Rolando S. Atienza, et al.
RESOLUTION
CARPIO, J.:
For resolution of the Court are the following motions: (1) Motion to Inhibit and for Re-
Deliberation filed by respondent Amari Coastal Bay Development Corporation (“Amari” for
brevity) on September 13, 2002, (2) Motion to Set Case for Hearing on Oral
Argument filed by Amari on August 20, 2002; (3) Motion for Reconsideration and Supplement
to Motion for Reconsideration filed by Amari on July 26, 2002 and August 20, 2002,
respectively; (4) Motion for Reconsideration and Supplement to Motion for Reconsideration
filed by respondent Public Estates Authority (“PEA” for brevity) on July 26, 2002 and August 8,
2002, respectively; and (5) Motion for Reconsideration and/or Clarification filed by the Office
of the Solicitor General on July 25, 2002. Petitioner Francisco I. Chavez filed on November 13,
2002 his Consolidated Opposition to the main and supplemental motions for reconsideration.
To recall, the Court’s decision of July 9, 2002 (“Decision” for brevity) on the instant case
states in its summary:
We can now summarize our conclusions as follows:
1.The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered
by certificates of title in the name of PEA, are alienable lands of the public domain. PEA
may lease these lands to private corporations but may not sell or transfer ownership of
these lands to private corporations. PEA may only sell these lands to Philippine citizens,
subject to the ownership limitations in the 1987 Constitution and existing laws.
2.The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are
the only natural resources the government can alienate. In their present state, the
592.15 hectares of submerged areas are inalienable and outside the commerce of man.
3.Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34 hectares of the Freedom Islands, such transfer is void for being contrary to Section
3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring
any kind of alienable land of the public domain. 4. Since the Amended JVA also seeks to
transfer to AMARI ownership of 290.156 hectares of still submerged areas of Manila Bay,
such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution
which prohibits the alienation of natural resources other than agricultural lands of the
public domain. PEA may reclaim these submerged areas. Thereafter, the government can
classify the reclaimed lands as alienable or disposable, and further declare them no
longer needed for public service. Still, the transfer of such reclaimed alienable lands of
the public domain to AMARI will be void in view of Section 3, Article XII of the 1987
Constitution which prohibits private corporations from acquiring any kind of alienable land
of the public domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987
Constitution. Under Article 1409 of the Civil Code, contracts whose “object or purpose is
contrary to law,” or whose “object is outside the commerce of men,” are “inexistent and void
from the beginning.” The Court must perform its duty to defend and uphold the Constitution,
and therefore declares the Amended JVA null and void ab initio.
Amari seeks the inhibition of Justice Antonio T. Carpio, ponente of the Decision, on the ground
that Justice Carpio, before his appointment to the Court, wrote in his Manila Times column of
July 1, 1997, “I have always maintained that the law requires the public bidding of reclamation
projects.” Justice Carpio, then a private law practitioner, also stated in the same column, “The
Amari-PEA reclamation contract is legally flawed because it was not bid out by the PEA.” Amari
claims that because of these statements Justice Carpio should inhibit himself “on the grounds
of bias and prejudgment” and that the instant case should be “re-deliberated” after being
assigned to a new ponente.
The motion to inhibit Justice Carpio must be denied for three reasons. First, the motion to
inhibit came after Justice Carpio had already rendered his opinion on the merits of the case.
The rule is that a motion to inhibit must be denied if filed after a member of the Court had
already given an opinion on the merits of the case,1 the rationale being that “a litigant cannot
be permitted to speculate upon the action of the Court x x x (only to) raise an objection of this
sort after a decision has been rendered.” Second, as can be readily gleaned from the summary
of the Decision quoted above, the absence of public bidding is not one of the ratio
decidendi of the Decision which is anchored on violation of specific provisions of the
Constitution. The absence of public bidding was not raised as an issue by the parties. The
absence of public bidding was mentioned in the Decision only to complete the discussion on
the law affecting reclamation contracts for the guidance of public officials. At any rate, the
Office of the Solicitor General in its Motion for Reconsideration concedes that the absence of
public bidding in the disposition of the Freedom Islands rendered the Amended JVA null and
void.2 Third, judges and justices are not disqualified from participating in a case just because
they have written legal articles on the law involved in the case. As stated by the Court
in Republic v. Cocofed,3—
The mere fact that, as a former columnist, Justice Carpio has written on the coconut levy will
not disqualify him, in the same manner that jurists will not be disqualified just because they
may have given their opinions as textbook writers on the question involved in a case.
Besides, the subject and title of the column in question was “The CCP reclamation project”
and the column referred to the Amari-PEA contract only in passing in one sentence.
Amari’s motion to set the case for oral argument must also be denied since the pleadings
of the parties have discussed exhaustively the issues involved in the case.
The motions for reconsideration reiterate mainly the arguments already discussed in the
Decision. We shall consider in this Resolution only the new arguments raised by respondents.
 In its Supplement to Motion for Reconsideration, Amari argues that the Decision should be
made to apply prospectively, not retroactively to cover the Amended JVA. Amari argues that
the existence of a statute or executive order prior to its being adjudged void is an operative
fact to which legal consequences are attached, citing De Agbayani v. PNB,4 thus:
x x x. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is so as
until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be had to
what has been done while such legislative or executive act was in operation and presumed to
be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to reflect awareness that precisely
because the judiciary is the governmental organ which has the final say on whether or not a
legislative or executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It would be to
deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication.
In the language of an American Supreme Court decision: “The actual existence of a
statute, prior to such a determination [of unconstitutional-ity], is an operative fact and may
have consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects,—with respect to particular relations, individual and corporate,
and particular conduct, private and official.” This language has been quoted with approval in a
resolution in Araneta v. Hill and the decision in Manila Motor Co., Inc. v. Flores. x x x.
xxx
x x x That before the decision they were not constitutionally infirm was admitted expressly.
There is all the more reason then to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its being adjudged void is an operative fact to
which legal consequences are attached.
Amari now claims that “assuming arguendo that Presidential Decree Nos. 1084 and 1085, and
Executive Order Nos. 525 and 654 are inconsistent with the 1987 Constitution, the limitation
imposed by the Decision on these decrees and executive orders should only be applied
prospectively from the finality of the Decision.”
Amari likewise asserts that a new doctrine of the Court cannot operate retroactively if it
impairs vested rights. Amari maintains that the new doctrine embodied in the Decision cannot
apply retroactively on those who relied on the old doctrine in good faith, citing Spouses
Benzonan v. Court of Appeals,5 thus:
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was
that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent
Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code
“judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.” But while our decisions form part of the law of the land, they
are also subject to Article 4 of the Civil Code which provides that “laws shall have no
retroactive effect unless the contrary is provided.” This is expressed in the familiar legal
maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law usually divests rights that
have already become vested or impairs the obligations of contract and hence, is
unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]).
The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] x x
x when a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to ‘parties’ who had relied on the old
doctrine and acted on the faith thereof.
There may be special cases where weighty considerations of equity and social justice will
warrant a retroactive application of doctrine to temper the harshness of statutory law as it
applies to poor farmers or their widows and orphans. In the present petitions, however, we
find no such equitable considerations. Not only did the private respondent apply for free
agricultural land when he did not need it and he had no intentions of applying it to the noble
purposes behind the law, he would now repurchase for only P327,995.00, the property
purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which, because of
improvements and the appreciating value of land must be worth more than that amount now.
The buyers in good faith from DBP had a right to rely on our rulings
in Monge and Tupas when they purchased the property from DBP in 1979 or thirteen (13)
years ago. Under the rulings in these two cases, the period to repurchase the disputed lot
given to respondent Pe expired on June 18, 1982. He failed to exercise his right. His lost right
cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over the
subject lot had already become vested as of that time and cannot be impaired by the
retroactive application of the Belisario ruling.
Amari’s reliance on De Agbayani and Spouses Benzonan is misplaced. These cases would
apply if the prevailing law or doctrine at the time of the signing of the Amended JVA was that
a private corporation could acquire alienable lands of the public domain, and the Decision
annulled the law or reversed this doctrine. Obviously, this is not the case here.
Under the 1935 Constitution, private corporations were allowed to acquire alienable lands
of the public domain. But since the effectivity of the 1973 Constitution, private corporations
were banned from holding, except by lease, alienable lands of the public domain.
 The 1987 Constitution continued this constitutional prohibition. The prevailing law before,
during and after the signing of the Amended JVA is that private corporations cannot hold,
except by lease, alienable lands of the public domain. The Decision has not annulled or in any
way changed the law on this matter. The Decision, whether made retroactive or not, does not
change the law since the Decision merely reiterates the law that prevailed since the effectivity
of the 1973 Constitution. Thus, De Agbayani, which refers to a law that is invalidated by a
decision of the Court, has no application to the instant case.
Likewise, Spouses Benzonan is inapplicable because it refers to a doctrine of the Court that
is overruled by a subsequent decision which adopts a new doctrine. In the instant case, there
is no previous doctrine that is overruled by the Decision. Since the case of Manila Electric
Company v. Judge Castro Bartolome, 6 decided on June 29, 1982, the Court has applied
consistently the constitutional provision that private corporations cannot hold, except by lease,
alienable lands of the public domain. The Court reiterated this in numerous cases, and the
only dispute in the application of this constitutional provision is whether the land in question
had already become private property before the effectivity of the 1973 Constitution.7 If the
land was already private land before the 1973 Constitution because the corporation had
possessed it openly, continuously, exclusively and adversely for at least thirty years since June
12, 1945 or earlier, then the corporation could apply for judicial confirmation of its imperfect
title. But if the land remained public land upon the effectivity of the 1973 Constitution, then
the corporation could never hold, except by lease, such public land. Indisputably, the Decision
does not overrule any previous doctrine of the Court.
The prevailing doctrine before, during and after the signing of the Amended JVA is that
private corporations cannot hold, except by lease, alienable lands of the public domain. This is
one of the two main reasons why the Decision annulled the Amended JVA. The other main
reason is that submerged areas of Manila Bay, being part of the sea, are inalienable and
beyond the commerce of man, a doctrine that has remained immutable since the Spanish Law
on Waters of 1886. Clearly, the Decision merely reiterates, and does not overrule, any existing
judicial doctrine.
Even on the characterization of foreshore lands reclaimed by the government, the Decision
does not overrule existing law or doctrine. Since the adoption of the Regalian doctrine in this
jurisdiction, the sea and its foreshore areas have always been part of the public domain. And
since the enactment of Act No. 1654 on May 18, 1907 until the effectivity of the 1973
Constitution, statutory law never allowed foreshore lands reclaimed by the government to be
sold to private corporations. The 1973 and 1987 Constitution enshrined and expanded the ban
to include any alienable land of the public domain.
There are, of course, decisions of the Court which, while recognizing a violation of the law
or Constitution, hold that the sale or transfer of the land may no longer be invalidated because
of “weighty considerations of equity and social justice.”8 The invalidation of the sale or
transfer may also be superfluous if the purpose of the statutory or constitutional ban has been
achieved. But none of these cases apply to Amari.
Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien
who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the
subsequent sale to a citizen.9 Similarly, where the alien who buys the land subsequently
acquires Philippine citizenship, the sale is validated since the purpose of the constitutional ban
to limit land ownership to Filipinos has been achieved.10 In short, the law disregards the
constitutional disqualification of the buyer to hold land if the land is subsequently transferred
to a qualified party, or the buyer himself becomes a qualified party. In the instant case,
however, Amari has not transferred the Freedom Islands, or any portion of it, to any qualified
party. In fact, Amari admits that title to the Freedom Islands still remains with PEA.11
The Court has also ruled consistently that a sale or transfer of the land may no longer be
questioned under the principle of res judicata, provided the requisites for res judicata are
present.12 Under this principle, the courts and the parties are bound by a prior final decision,
otherwise there will be no end to litigation. As the Court declared in Toledo-Banaga v. Court of
Appeals,13 “once a judgement has become final and executory, it can no longer be disturbed
no matter how erroneous it may be.” In the instant case, there is no prior final decision
adjudicating the Freedom Islands to Amari.
There are, moreover, special circumstances that disqualify Amari from invoking equity
principles. Amari cannot claim good faith because even before Amari signed the Amended JVA
on March 30, 1999, petitioner had already filed the instant case on April 27, 1998 questioning
precisely the qualification of Amari to acquire the Freedom Islands. Even before the filing of
this petition, two Senate Committees14 had already approved on September 16, 1997 Senate
Committee Report No. 560. This Report concluded, after a well-publicized investigation into
PEA’s sale of the Freedom Islands to Amari, that the Freedom Islands are inalienable lands of
the public domain. Thus, Amari signed the Amended JVA knowing and assuming all the
attendant risks, including the annulment of the Amended JVA.
Amari has also not paid to PEA the full reimbursement cost incurred by PEA in reclaiming
the Freedom Islands. Amari states that it has paid PEA only P300,000,000.0015 out of the
P1,894,129,200.00 total reimbursement cost agreed upon in the Amended JVA. Moreover,
Amari does not claim to have even initiated the reclamation of the 592.15 hectares of
submerged areas covered in the Amended JVA, or to have started to construct any permanent
infrastructure on the Freedom Islands. In short, Amari does not claim to have introduced any
physical improvement or development on the reclamation project that is the subject of the
Amended JVA. And yet Amari claims that it had already spent a “whopping
P9,876,108,638.00” as its total development cost as of June 30, 2002.16 Amari does not
explain how it spent the rest of the P9,876,108,638.00 total project cost after paying PEA
P300,000,000.00. Certainly, Amari cannot claim to be an innocent purchaser in good faith and
for value.
In its Supplement to Motion for Reconsideration, PEA claims that it is “similarly situated” as
the Bases Conversion Development Authority (BCDA) which under R.A. No. 7227 is tasked to
sell portions of the Metro Manila military camps and other military reservations. PEA’s
comparison is incorrect. The Decision states as follows:
As the central implementing agency tasked to undertake reclamation projects nationwide, with
authority to sell reclaimed lands, PEA took the place of DENR as the government agency
charged with leasing or selling reclaimed lands of the public domain. The reclaimed lands
being leased or sold by PEA are not private lands, in the same manner that DENR, when it
disposes of other alienable lands, does not dispose of private lands but alienable lands of the
public domain. Only when qualified private parties acquire these lands will the lands become
private lands. In the hands of the government agency tasked and authorized to dispose of
alienable or disposable lands of the public domain, these lands are still public, not private
lands.
PEA is the central implementing agency tasked to undertake reclamation
projects nationwide. PEA took the place of Department of Environment and Natural Resources
(“DENR” for brevity) as the government agency charged with leasing or selling all
reclaimed lands of the public domain. In the hands of PEA, which took over the leasing and
selling functions of DENR, reclaimed foreshore lands are public lands in the same manner that
these same lands would have been public lands in the hands of DENR.  BCDA is an entirely
different government entity. BCDA is authorized by law to sell specific government lands that
have long been declared by presidential proclamations as military reservations for use by the
different services of the armed forces under the Department of National Defense. BCDA’s
mandate is specific and limited in area, while PEA’s mandate is general and national. BCDA
holds government lands that have been granted to end-user government entities—the military
services of the armed forces. In contrast, under Executive Order No. 525, PEA holds the
reclaimed public lands, not as an end-user entity, but as the government agency “primarily
responsible for integrating, directing, and coordinating all reclamation projects for and on
behalf of the National Government.”
In Laurel v. Garcia,17 cited in the Decision, the Court ruled that land devoted to public use
by the Department of Foreign Affairs, when no longer needed for public use, may be declared
patrimonial property for sale to private parties provided there is a law authorizing such act.
Well-settled is the doctrine that public land granted to an end-user government agency for a
specific public use may subsequently be withdrawn by Congress from public use and declared
patrimonial property to be sold to private parties. R.A. No. 7227 creating the BCDA is a law
that declares specific military reservations no longer needed for defense or military purposes
and reclassifies such lands as patrimonial property for sale to private parties.
Government owned lands, as long they are patrimonial property, can be sold to private
parties, whether Filipino citizens or qualified private corporations. Thus, the so-called Friar
Lands acquired by the government under Act No. 1120 are patrimonial property18 which even
private corporations can acquire by purchase. Likewise, reclaimed alienable lands of the public
domain if sold or transferred to a public or municipal corporation for a monetary consideration
become patrimonial property in the hands of the public or municipal corporation. Once
converted to patrimonial property, the land may be sold by the public or municipal corporation
to private parties, whether Filipino citizens or qualified private corporations.
We reiterate what we stated in the Decision is the rationale for treating PEA in the same
manner as DENR with respect to reclaimed foreshore lands, thus:
To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private
lands will sanction a gross violation of the constitutional ban on private corporations from
acquiring any kind of alienable land of the public domain. PEA will simply turn around, as PEA
has now done under the Amended JVA,  and transfer several hundreds of hectares of these
reclaimed and still to be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban in Section 3, Article XII
of the 1987 Constitution which was intended to diffuse equitably the ownership of alienable
lands of the public domain among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of the public
domain since PEA can “acquire x x x any and all kinds of lands.” This will open the floodgates
to corporations and even individuals acquiring hundreds, if not thousands, of hectares of
alienable lands of the public domain under the guise that in the hands of PEA these lands are
private lands. This will result in corporations amassing huge landholdings never before seen in
this country—creating the very evil that the constitutional ban was designed to prevent. This
will completely reverse the clear direction of constitutional development in this country. The
1935 Constitution allowed private corporations to acquire not more than 1,024 hectares of
public lands. The 1973 Constitution prohibited private corporations from acquiring any kind of
public land, and the 1987 Constitution has unequivocally reiterated this prohibition.
Finally, the Office of the Solicitor General and PEA argue that the cost of reclaiming deeply
submerged areas is “enormous” and “it would be difficult for PEA to accomplish such project
without the participation of private corporations.”19 The Decision does not bar private
corporations from participating in reclamation projects and being paid for their services in
reclaiming lands. What the Decision prohibits, following the explicit constitutional mandate, is
for private corporations to acquire reclaimed lands of the public domain. There is no
prohibition on the directors, officers and stockholders of private corporations, if they are
Filipino citizens, from acquiring at public auction reclaimed alienable lands of the public
domain. They can acquire not more than 12 hectares per individual, and the land thus
acquired becomes private land.
Despite the nullity of the Amended JVA, Amari is not precluded from recovering from PEA
in the proper proceedings, on a quantum meruit basis, whatever Amari may have incurred in
implementing the Amended JVA prior to its declaration of nullity.
WHEREFORE, finding the Motions for Reconsideration to be without merit, the same are
hereby DENIED with FINALITY. The Motion to Inhibit and for Re-Deliberation and the Motion
to Set Case for Hearing on Oral Argument are likewise DENIED.
SO ORDERED.
     Davide, Jr. (C.J.), Vitug, Panganiban, Quisumbing, Austria-Martinez, Carpio-
Morales and Callejo, Sr., JJ., concur.
     Bellosillo, J., Please see separate opinion, Concuring and dissenting
     Puno, J., Please see separate opinion.
     Ynarez-Santiago, J., Please see dissenting opinion.
      Sandoval-Gutierrez, J., Please see my dissenting opinion.
     Corona, J., I dissent.
     Azcuna, J., I take no part.
SEPARATE OPINION,
CONCURRING AND DISSENTING
And in the naked light I saw
Ten thousand people, maybe more.
People talking without speaking,
People hearing without listening,
People writing songs that voices never share
And no one dared
Disturb the sound of silence.
—Paul Simon, Sound of Silence
BELLOSILLO, J.:
A STEREOTYPICAL ACTION, AN ARCHETYPAL RESPONSE, A MATTER OF DUE PROCESS—a
motion for reconsideration relieves the pressure of mistakes shrouded in the mystified body of
putative precedents. It serves the traditional and standard procedure for a second chance not
only in favor of party-litigants but the courts as well, before taking that great leap of faith
into stare decisis where even our errors are etched as rules of conduct or, as our conscious
choice would have it, into the jural postulate of a civilized society where men are able to
assume that they may control, for purposes beneficial to them, what they have created by
their own labor and what they have acquired under the existing social and economic
order. With such opportunity presenting itself in the instant case, I am up to the task of
scrutinizing a monumental challenged to the course of economic decision-making inherent not
in the mandate of this Court but in those of the accountable political branches of our
government whose long-standing discretion we have thrashed—a perfunctory acquiescence
amidst the disturbing sound of silence is certainly feckless and inappropriate.
First, my concurrence. I am happy that this Court has stuck to a civil libertarian’s honesty
and transparency in government service when interpreting the ambit of the people’s right to
information on matters of public concern. Nothing can be more empowering on this aspect
than to compel access to all information relevant to the negotiation of government contracts
including but not limited to evaluation reports, recommendations, legal and expert opinions,
minutes of meetings, terms of reference and other documents attached to such reports or
minutes, all relating to any proposed undertaking. This to me encourages our people to watch
closely the proprietary acts of State functionaries which more often than not, because they
have been cloaked in technical jargon and speculation due to the absence of verifiable
resource materials, have been left unaccounted for public debate and searching inquiry.
Having said what is positively remarkable about the ponencia, let me discuss the crux of
my dissent.
Firstly, as explained by the contracting parties now adversely affected by the Decision to
nullify ab initio the Amended Joint Venture Agreement (AJVA), there is no reason to go that
far to prove a point. I agree with them. According to the ponencia the AJVA was intended to—
x x x develop the Freedom Islands. The JVA also required the reclamation of an additional 250
hectares of submerged areas surrounding these islands to complete the configuration in the
Master Development Plan of the Southern Reclamation Project-MCCRRP x x x x The subject
matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely: 1. ‘[T]hree partially reclaimed and substantially eroded islands along
Emilio Aguinaldo Boulevard in Parañaque and Las Piñas, Metro Manila, with a combined titled
area of 1,578,441 square meters,’ 2. ‘[A]nother area of 2,421,559 square meters contiguous
to the three islands’; and 3. ‘[A]t AMARI’s option as approved by PEA, an additional 350
hectares more or less to regularize the configuration of the reclaimed area.’ PEA confirms that
the Amended JVA involves “the development of the Freedom Islands and further reclamation
of about 250 hectares . . .,” plus an option ‘granted to AMARI to subsequently reclaim another
350 hectares . . .’ In short, the Amended JVA covers a reclamation area of 750 hectares. Only
157.84 hectares of the 750-hectare reclamation project have been reclaimed, and the rest of
the 592.15 hectares are still submerged areas forming part of Manila Bay. Under the Amended
JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA’s ‘actual cost’ in partially
reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the
reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation costs of all
the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will share, in
the proportion of 70 percent and 30 percent, respectively, the total net usable area which is
defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for
common areas. Title to AMARI’s share in the net usable area, totaling 367.5 hectares, will be
issued in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that—‘. . ., PEA
shall have the duty to execute without delay the necessary deed of transfer or conveyance of
the title pertaining to AMARI’s land share based on the Land Allocation Plan. PEA, when
requested in writing by AMARI, shall then cause the issuance and delivery of the proper
certificates of title covering AMARI’s Land Share in the name of AMARI,. . .; provided, that if
more than seventy percent (70%) of the titled area at any given time pertains to AMARI, PEA
shall deliver to AMARI only seventy percent (70%) of the titles pertaining to AMARI, until such
time when a corresponding proportionate area of additional land pertaining to PEA has been
titled.’ Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name. To implement the Amended JVA,
PEA delegated to the unincorporated PEA-AMARI joint venture PEA’s statutory authority, rights
and privilege to reclaim foreshore and submerged areas in Manila Bay. Section 3.2.a of the
Amended JVA states that—‘PEA hereby contributes to the joint venture its rights and privileges
to perform Rawland Reclamation and Horizontal Development as well as own the Reclamation
Area, thereby granting the Joint Venture the full and exclusive right, authority and privilege to
undertake the Project in accordance with the Master Development Plan.’ The Amended JVA is
the product of a renegotiation of the original JVA dated April 25, 1995 and its supplemental
agreement dated August 9, 1995.1
But the AJVA, which is basically a specie of an “I do, you give” contract, is severable in the
sense that AMARI’s share in the project need not be paid in parcels of the reclaimed land but
also in cash. The majority cannot set this alternative aside since lawyers for AMARI are also
interested in this substitute option if all else fail.2 Another tame solution, so they say, is for
the Public Estates Authority to hold title to the reclaimed lands until transferred to a qualified
transferee.3 This too is possible in the name of equity. To be sure, the prestation in the PEA-
AMARI contract is not contrary to law or public policy since the government stands to be
benefited by AMARI’s part of the bargain while the latter must in turn be compensated for its
efforts; in the present context service and compensation, “I do, you give” are certainly not
illegal considerations. Since the baseless anxiety about the AJVA lies only in the mode of
recompense for AMARI, and the AJVA offers an abundance of means to get it done, even
granting that the ponencia has correctly understood the law to prevent permanently the
transfer of reclaimed lands to AMARI, no reason could sanely justify voiding the entire contract
and eternally deny a party its due for its onerous activities. As we have held in Republic v.
Court of Appeals,4
x x x it appearing that something compensable was accomplished by them, following the
applicable provision of law and hearkening to the dictates of equity, that no one, not even the
government shall unjustly enrich oneself/itself at the expense of another, we believe and so
hold, that Pasay City and RREC should be paid for the said actual work done and dredg-fill
poured in x x x x
Secondly, I am not comfortable with the idea of forever withholding reclaimed lands as
unmoving assets in our developmental concerns.
Government lands are classified in a number of ways. They may be lands of the public
domain, either alienable or inalienable, or lands of the private domain, which refer to “land
belonging to and owned by the state as a private individual, without being devoted for public
use, public service or the development of national wealth x x x similar to patrimonial
properties of the State.”5 Under the Civil Code, government lands can either be properties of
the public dominion, or those intended for public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar
character, or those which belong to the State, without being for public use, intended for some
public service or for the development of the national wealth;6 or patrimonial properties of the
State, i.e., properties other than properties of the public dominion  or former properties of the
public dominion that are no longer intended for public use or for public service.7 Clearly, the
government owns real estate which is part of the “public lands” or alienable lands of the public
domain and other real estate which is not a part thereof.
valid objects of contracts generally unfettered by the terms and conditions set forth in Secs. 2
and 3 of Art. XII of the Constitution, which refer only to lands of the public domain, nor by
statutes for the settlement, prescription or sale of public lands.
The ponencia classified the reclaimed land herein involved to be lands of the public
domain. Thus, as summarized in the ponencia sought to be reconsidered—
. 1.The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now
covered by certificates of title in the name of PEA, are alienable lands of the public
domain. PEA may lease these lands to private corporations but may not sell or
transfer ownership of these lands to private corporations. PEA may only sell these
lands to Philippine citizens, subject the ownership limitations in the 1987
Constitution and existing laws.
. 2.The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open
to disposition and declared no longer needed for public service. The government can
make such classification and declaration only after PEA has reclaimed these
submerged areas. Only then can these lands qualify as agricultural lands of the
public domain which are the only natural resources the government can alienate. In
their present state, the 592.15 hectares of submerged areas are inalienable and
outside the commerce of man.
. 3.Since the Amended JVA seeks to transfer to AMARI, a private corporation,
ownership of 77.34 hectares of the Freedom Islands, such transfer is void for being
contrary to Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.
. 4.Since the Amended JVA also seeks transfer to AMARI ownership of 290.156
hectares of still submerged areas of Manila Bay, such transfer is void for being
contrary to Section 2, Article XII of the 1987 Constitution which prohibits the
alienation of natural resources other than agricultural lands of the public domain.
PEA may reclaim these submerged areas. Thereafter, the government can classify
the reclaimed lands as alienable or disposable, and further declare them no longer
need for public service. Still, the transfer of such reclaimed alienable lands of the
public domain to AMARI will be void in view of Section 3, Article XII of the 1987
Constitution which prohibits private corporations from acquiring any kind of alienable
land of the public domain.13

Alienable lands of the public domain, or those available for alienation or disposition, are
part of the patrimonial properties of the State.8 They are State properties available for private
ownership except that their appropriation is qualified by Secs. 2 and 3 of Art. XII of
the Constitution and the public land laws.9 Before lands of the public domain are declared
available for private acquisition, or while they remain intended for public use or for public
service or for the development of national wealth, they would partake of properties of public
dominion just like mines before their concessions are granted,10 in which case, they cannot
be alienated or leased or otherwise be the object of contracts.11 In contrast, patrimonial
properties may be bought or sold or in any manner utilized with the same effect as properties
owned by private persons.12 Lands of the private domain, being patrimonial properties, are
This is where I also disagree. Reclaimed lands are lands sui generis, as the majority would
rule, and precisely because of this characterization we cannot lump them up in one telling
swoop as lands of the public domain without due regard, for vested rights as well as joint
executive and legislative intent to provide otherwise. For, after all, it is the executive and
legislative powers that determine land classification.14 To illustrate, in Province of Zamboanga
del Norte v. City of Zamboanga 15 this Court took note of the diverging “norms” provided by
laws, i.e., the Civil Code and the Law of Municipal Corporations, in classifying municipal lands
into either public or patrimonial,  and held that “applying the norm obtaining under the
principles constituting the Law of Municipal Corporations, all those x x x properties in question
which are devoted to public service are deemed public; the rest remain patrimonial. Under this
norm, to be considered public, it is enough that the property be held and devoted for
governmental purposes like local administration, public education, public health, etc.” Clearly,
the categorization of government lands depends upon legislative intent which the courts must
implement.
The Freedom Islands was reclaimed by the Construction and Development Corporation of
the Philippines (CDCP) pursuant to a contract with the Republic whereby the former in
exchange for its efforts would receive fifty percent (50%) of the total reclaimed land. This
arrangement is authorized under Art. 5 of the Spanish Law of Waters which provides, “[l]ands
reclaimed from the sea in consequence of works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the grant of authority,”
and by PD 3-A (1973) stating that, “[t]he provisions of any law to the contrary
notwithstanding, the reclamation of areas under water, whether foreshore or inland, shall be
limited to the National Government or any person authorized by it under a proper
contract (italics supplied) Both statutes are still effective since either one repeals the other but
only a modification is inserted in that reclamation by a private contractor must now be
governed by a “contract.” As the standing laws, i.e., Art. 5 of the Spanish Law of
Waters and PD 3-A, treat reclaimed lands as proper objects for disposition whether by grant of
authority or contract, such reclaimed lands as they have been acquired by the State by means
of a contract are not properties of public dominion but patrimonial lands of the State that it
can dispose, and lands of the private domain that the State may alienate to anyone since the
statutes make no restriction altogether.
The reclaimed lands pertaining to CDCP under the contract with the Republic are private
properties of CDCP. The Republic is authorized to convey them to CDCP, a corporation duly
organized and registered under the laws of the Philippines,16 and the lands themselves are
products of CDCP’s efforts, money and expertise. When CDCP acquires property, it does so in
its private capacity in the course of the exercise of its corprate powers as a juridical entity and
acting as an ordinary person capable of entering into contracts or making transactions for the
transmission of title or other real rights.17 Under Art. 712 of the Civil Code, ownership and
other real rights over property are acquired and transmitted by tradition in consequence of
certain contracts. In fact, PD 1085 (1977)18 acknowledges the existence of rights in favor of
CDCP and conditions the transfer of assets from CDCP to PEA upon the recognition and
respect for “the rights and interests of the Construction and Development Corporation of the
Philippines pursuant to the aforesaid contract and furthermore, upon the transfer of “such
portion or portions of the land reclaimed or to be reclaimed as provided for in the above-
mentioned contract” to the contractor or his assignees.
The rest of the lands reclaimed by CDCPs Freedom Islands but belonging to the Republic
under the contract i.e., the other fifty percent (50%) thereof, are lands of the private
domain. The reason is simple: this fifty percent (50%) to which the Republic is entitled is only
an extension of the other fifty percent (50%) that went to CDCP as its private property in
consideration of its reclamation. An “extension,” signifies enlargement in any direction—in
length, breadth, or circumstance.19 Thus, in Manila Lodge No. 761 v. Court of Appeals20 we
held: “[i]f the reclaimed area is an extension of the Luneta, then it is of the same nature or
character the old Luneta. Anent this matter, it has been said that a power to extend (or
continue an act or business) cannot authorize a transaction that is totally distinct.” Moreover,
as in the case of lands obtained in escheat proceedings or succession which are properties of
the private domain, the reclaimed lands are procured through the contract between the
Republic and CDCP without which they would not have come into being.
The transfer of the Freedom Islands to the PEA under PD 1085 (both the fifty percent
[50%] owned by CDCP and the other half owned by the Republic) does not alter the
description of the reclaimed lands—they remain lands of the private domain. In fact, the
conveyance bolsters such characterization: fifty percent (50%) was obtained from a private
owner, CDCP, hence subsuming it under the private domain.21 The other fifty percent (50%)
belonging to the Republic is given to PEA in exchange for a participation in the latter’s equity.
As explained in DOJ Opinion No. 026, s. 1994,  which answers negatively whether the
President may transfer gratuitously the title of the Republic over all lands within the Old Bilibid
Compound (OBC) in favor of the PEA, subject to the existing valid private rights if there be
any, to form part of PEA’s proj-ect-related asset pool—
First and foremost, PEA’s Charter delimits the contributions of the National Government to the
PEA which are to be compensated by the equivalent number of shares of stocks of the PEA in
the name of the Republic (Secs. 7 and 15, P.D. 1084). The proposed gratuitous transfer of
valuable national government property of the PEA by a Presidential Proclamation would go
beyond the amount of the contribution/exposure of the National Government to the capital of
the PEA as prescribed by law and do away with the consideration therefor that is the
equivalent number of shares of stocks of the PEA to be issued in the name of the National
Government. Accordingly, the said proposal would run counter to the provisions of the
abovementioned Charter, or amount to an amendment of the said law (italics supplied).
Consequently, under LOI 1390 (1984), accelerate the development of the First Neighborhood
Unit Project within the Manila-Cavite Coastal Road Project, an excess of the reclaimed land
was ceded by PEA to the Marina Properties Corporation. Administrative Order No. 348 (1997)
authorized PEA to undertake “pursuant to its charter (PD 1084 and PD 1085) ancillary
reclamation works to put in place the drainage canals and outfalls and to negotiate and enter
into such agreements including land-swapping, on a value for value basis, as may be
necessary for the acquisition of rights-of-way (ROW) for the said major roads drainage canals
in order that these are undertaken at no cost or budgetary outlay on the part of PEA  or the
National Government (italics supplied)”22 Subsequently, AO No. 397 (1998) of then President
Ramos settled claims of CDCP against PEA by conveying portions of the lands previously
reclaimed under CDCP’s contract with the Republic.
Evidently, by these official measures making the reclaimed lands available for the
ownership of private corporations as transferees, the portions of land reclaimed by DCP were
not intended by the executive and legislative branches” government as proper authorities for
such purpose to be labeled alienable lands of the public domain but lands of the private
domain, hence, generally not subject to the strictures of Secs. 2 and 3 of Art. XII of
the Constitution. There is none of the intention to devote them to public use in order that they
may be considered as properties still of the public domain.23 As it is “only the executive and
possibly the legislative department that have the authority and the power to make the
declaration that said property is no longer required for public use,”24 or for that matter,
already belongs to the private domain, and with the declaration having been made by enlisting
the claimed lands as pieces of assets available for commercial use, they continue as private
lands of the State when transferred to PEA, and from the latter as mode of compensation for
AMARI in the assailed AJVA.
The authority to dispose of government lands is a strong indicium of the patrimonial
composition of the properties.25 Ownership is the right to enjoy and dispose of a thing
without further limitations than those established by law, and jus disponendi of one’s property
is an attribute of ownership. This is clear from PD 1084 (1977), the charter of PEA which
states as among the purposes thereof to “reclaim land, including foreshore and submerged
areas, by dredging, filling or other means, or to acquire reclaimed lands,” or to “develop,
improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds of
lands, buildings, estates and other forms of real property, owned, managed, controlled and/or
operated by the government.” To this end, PEA was empowered to “purchase, lease, build,
alter, construct, erect, enlarge, occupy, manage, sell, mortgage, dispose of or otherwise deal
in, buildings of every kind and character whatsoever, whether belonging to, or to be acquired
by the Authority.”
Significantly, to stress the legislative intent to segregate PEA’s patrimonial lands or lands
of the private domain which are being used as assets in its commercial undertakings from the
realm of alienable lands of the public domain, PD 1084 purposely vested it with the right to
“hold lands of the public domain in excess of [the] area permitted to private corporations by
statute.” In the same DOJ Opinion No. 026, s. 1994  mentioned above, it is articulated
although ruefully that the power of PEA to dispose of its assets constitutes adequate legal
basis under Sec. 48, Chapt. 12, Bk. I, of EO 292, the Administrative Code of 1997,26 as well
as under our ruling in Laurel v. Garcia27 that “[i]t is not for the President to convey valuable
real property of the government on his or her own sole will x x x [a]ny such conveyance must
be authorized and approved by a law enacted by Congress x x x [i]t requires executive and
legislative concurrence” for PEA to exercise validly such mandate.
The proscription of Secs. 2 and 3 of Art. XII of the Constitution finds no application in the
instant case, especially as regards the 157.84 hectares of reclaimed lands comprising
the Freedom Islands. As explained above, this real estate is not of the public domain but of
the private domain. In the same way, the various public land laws in their essential parts do
not govern the alienation of the Freedom Islands. What is more, reclaimed lands are not plain
and simple patches of the earth as agricultural, timber or mineral lands are, in the full sense of
being products of nature, but are the results of the intervention of man just like in the
extraction of mineral resources, i.e., gold, oil, petroleum, etc. Landform encompasses only six
(6) major categories: high mountains, low mountains, hills, plains with high relief features,
plains of moderate relief and plains of slight relief.28 The terrain types identified by this
system are established by a uniform set of descriptive properties, and nowhere do we read
therein reclaimed lands. The origin of our islands as other islands in the western Pacific is
believed to be “the upholdings of ancient continental rocks with deep troughs between
representing downfolds or down-dropped blocks x x x [h]ence, the elevations of those islands
x x x which rest upon submarine platforms has been aided by deformation of the earth’s
crust”29—our islands were not created through the process of reclamation but through natural
formation.
In fact, reclaimed lands are the result of man’s interference with nature. They are not akin
to land categories as we know them but more representative of the exploitation of natural
resources coupled with the inventiveness of man. As mentioned above, the more relevant
comparisons would be the exploration and utilization of mineral resources that are turned over
to the private contractor in exchange for certain fees and royalties.30 To be sure, the
constitutional injunction in Sec. 2 of Art. XII that “[w]ith the exception of agricultural lands, all
other natural sources shall not be alienated” was never intended to restrict our leaders in the
executive branch to require in mineral agreements a stipulation “requiring the Contractor to
dispose of the minerals and by-products produced at the highest market price and to
negotiate for more advantageous terms and conditions subject to the right to enter into long-
term sales or marketing contracts or foreign exchange and commodity hedging contracts
which the Government acknowledges to be acceptable x x x x (italics supplied)”31
Without doubt, what applies to reclamation projects is this portion of Sec. 2, Art. XII of
the Constitution—
x x x [t]he exploration, development, and utilization of natural resources shall be under the
full control and supervision of the State. The State may directly undertake such activities, or it
may enter into coproduction, joint venture; or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements [are] x x x under such terms and conditions as may be
provided by law (italics supplied).”
The clause “under such terms and conditions as may be provided by law” refers to the
standing laws affecting reclaimed lands, such as the PEA charter. The orientation to this
portion of Sec. 2 explains why in most executive issuances and statutes relating to reclamation
of lands we would read references to joint venture or production-sharing agreements. Hence,
in EO 405 (1997) Authorizing the Philippine Ports Authority (PPA) to Reclaim and Develop
Submerged Areas Vested in the PPA For Port-Related Purposes, it was noted in
the “Whereas” Clauses that land reclamation and development projects are capital intensive
infrastructure enterprises requiring huge financial outlays through joint venture agreements.
In this light, we ought to resolve the instant reclamation project according to the clear
intendment of the executive and legislative branches of government to handle reclaimed lands
as patrimonial properties and lands of the private domain of the State.
As regards the real character of reclaim lands, Sec. 302 of RA 7160 (1991)32 provides that
“[t]he contractor shall be entitled to a reasonable return of its investment in accordance with
its bid proposal as accepted by the local government unit concerned x x x x In case of land
reclamation or construction of industrial estates, the repayment plan may consist of the grant
of a portion or percentage of the reclaimed land or the industrial estate constructed.” Under
Sec. 6 of RA 6957 (1990),33 “the contractor shall be entitled to a reasonable return of its
investment and operating and maintenance costs x x x x In the case of land reclamation or
the building of industrial estates, the repayment scheme may consist of the grant of a portion
or percentage of the reclaimed land or industrial estate built, subject to the constitutional
requirements with respect to the ownership of lands.” The mention of the “constitutional
requirements” in RA 6957 has to do with the equity composition of the corporate recipient of
the land, i.e., “corporations or associations at least sixty per centum of whose capital is owned
by such citizens” and not to the outright prohibition against corporate ownership of lands of
the public domain.34 It is also important to note that a “contractor” is any “individual, firm,
partnership, corporation, association or other organization, or any combination of any
thereof,”35 thus qualifying AMARI to receive a portion of the reclaimed lands.
There is nothing essentially wrong with the agreement between PEA and AMARI in that the
latter would receive a portion of the reclamation project if successful. This is a common
payment scheme for such service done. It is recognized under the Spanish Law of Waters and
authorized by the PEA charter as well as by RA 6957. The assailed AJVA is not awarding
AMARI a portion of the Manila Bay, a property of public dominion, but a fraction of the land to
be uplifted from it, a land of the private domain. While the reclamation project concerns a
future thing or one having potential existence, it is nonetheless a legitimate object of a
contract.36
We do not have to be confused regarding the nature of the lands yet to be reclaimed.
They are the same as the Freedom Islands. Both are meant to serve legitimate commercial
ends, hence, lands of the private domain intended by both the executive and legislative
branches of government to be used as commercial assets. This objective is obvious from PD
1084 which empowers PEA to “enter into, make, perform and carry out contracts of every
class and description, including loan agreements, mortgages and other types of security
arrangements, necessary or incidental to the realization of its purposes with any person, firm
or corporation, private or public, and with any foreign government or entity.” Executive Order
No. 525 (1979)37 provides that “[a]ll lands reclaimed PEA shall belong to or be owned by the
PEA which shall be responsible for its administration, development, utilization or disposition in
accordance with the provisions of Presidential Decree No. 1084. Any and all income that the
PEA may derive from the sale, lease or use of reclaimed lands shall be used in accordance
with the provisions of Presidential Decree No. 1084.” Finally, EO 654 (1981)38 mandates that
“[i]n the disposition of its assets and properties, the Authority shall have the authority to
determine the kind and manner of payment for the transfer thereof to any third party.” Since
the principal task of PEA is to reclaim lands or to approve the execution of it by others, its
power to contract must necessarily involve dealings with the reclaimed lands.
Admittedly, our public land laws classify reclaimed lands as alienable lands of the public
domain.39 Under such taxonomy, the real estate would fall within the prohibition against
ownership by private corporations under Secs. 2 and 3, Art. XII, of the Constitution.  Under the
public land laws, the mode of disposing them is mainly through lease, or if titled in the name
of a government entity, by sale but only to individual persons. But herein lies the rub—the
nomenclature attached to reclaimed lands as belonging to the public domain is statutory in
origin. This means, and ought to import, that the category may change according to legislative
intent. The power to make laws includes the power to alter and re-peal them. Nothing
sacrosanct like a constitutional injunction exists that reclaimed lands be always classified
as lands of the public domain; the class is statutory in foundation and so it may change
accordingly, as it was modified for purposes of the mandate of the Public Estates Authority.
The issuance of a “special patent” under PD 1085, i.e., “Special Land Patent/Patents shall
be issued by the Secretary of Natural Resources in favor of the Public Estate Authority without
prejudice to the subsequent transfer to the contractor or his assignees of such portion or
portions of the land reclaimed or to be reclaimed as provided for in the above-mentioned
contract x x x [o]n the basis of such patents, the Land Registration Commission shall issue the
corresponding certificates of title,” does not mean that the reclaimed lands prior to such
“special patent” are classified as lands of the public domain.
As a matter of ordinary land registration practice, a special patent is a “patent to grant,
cede, and convey full ownership of alienable and disposable lands formerly covered a
reservation or lands of the public domain” and is issued upon the “promulgation of a special
law or act of Congress or by the Secretary of Environment and Natural Resources as authorize
by an Executive Order of the President.”40 This meaning of a “special patent” cannot override
the overwhelming executive and legislative intent manifest in PDs 1084 and 1085 to make the
reclaimed lands available for contract purposes. What is important in the definition of “special
patent” is the grant by law of a property of the Republic for the full ownership of the grantee
while the classification of the land is not at all decisive in such description since the “special
law or act of Congress” or the “Executive Order” may classify the subject land differently , as is
done in the instant case. Thus, the Department of Environment and Natural Resources
(DENR), through the Reservation and Special Land Grants Section of the Land Management
Division, is tasked to issue special patents in favor of “government agencies pursuant to
special laws, proclamations, and executive orders x x x {italics supplied),”41 Verily, in the
absence of a general law on the authority of the President to transfer to a government
corporation real property belonging to the Republic,42 PD 1085 is free to choose the means of
conveying government lands from the Republic to PEA, a government corporation, whether by
special patent or otherwise without adjusting their character as lands of private domain.
Additionally, nothing momentous can be deduced from the participation of the Secretary of
Natural Resources in the signing of the “special patent” since he is by law, prior to the transfer
of the reclaimed lands to PEA, the land officer of the Republic for lands of the private
domain as may be gleaned from Sec. 1 of Act 3038, the general law dealing with the
disposition of lands of the private domain,43 i.e., “[t]he Secretary of Agriculture and Natural
Resources is hereby authorized to sell or lease land of the private domain of the Government
of the Philippines Islands x x x.”44 This is because under the organization of the DENR, the
Land Management Division is charged with the “planning formulating, and recommending
policies for the sound management and disposition of x x x friar lands, patrimonial properties
of the government, and other lands under the region’s administration as well as guidelines on
land use and classification,” while the Reservation and Special Land Grants Section thereof
prepares the special patents proposed to be issued in favor of “government agencies pursuant
to special laws, proclamations, and executive orders x x x (italics supplied)”45
The reference to a “special patent” is called for since the conveyance of the reclaimed
lands begins with the Republic not with PEA. Once the transfer of the reclaimed lands is
perfected by the issuance of special land patents signed by the Secretary of Natural Resources
in favor of PEA, the subsequent disposition thereof, e.g. the transfer from PEA to AMARI, falls
within the coverage of PEA’s charter and cognate laws. The reason is that PEA is henceforth
the owner of all lands reclaimed by it or by virtue of its authority “which shall be responsible
for its administration, development, utilization or disposition in accordance with the provisions
of Presidential Decree No. 1084.”46 Significantly, for the registration of reclaimed lands
alienated by PEA pursuant to its mandate, it is only necessary to file with the Register of SEPARATE OPINION
Deeds the “instrument of alienation, grant, patent or conveyance” whereupon a certificate of
title shall be entered as in other cases of registered land and an owner’s duplicate issued to
PUNO, J.:
the grantee.

I respectfully submit that the plea of the private respondent AMARI for a prospective
Indeed, there should be no fear calling reclaimed lands “lands of the private domain” and
application of our Decision of July 26, 2002 deserves serious attention. From the mosaic of
making them available for disposition if this be the legislative intent. The situation is no
facts, it appears that private respondent is a Philippine corporation whose capital structure
different from the trade of mineral products such as gold, copper, oil or petroleum. Through
includes a heavy mix of public investment and foreign equity. It further appears that
joint ventures that are allowed under the Constitution, our government disposes minerals like
respondent AMARI did not conclude its Amended Joint Venture Agreement (AJVA) with the
private properties. At the end of the pendulum, if we refer to reclaimed lands as lands of the
government, thru the public respondent Public Estates Authority (PEA) without exercising the
public domain inalienable except to individual persons, then it is time to end all reclamation
due diligence required by law. Private respondent AMARI claims and the records support it,
projects because these efforts entail too much expense and no individual person would have
that its AJVA passed the proverbial eye of the needle before it was approved by the Chief
the capital to undertake it himself. We must not hamstring both the Executive and Congress
Executive of the country.
from making full use of reclaimed lands as an option in following economic goals by the
declaration made in the ponencia.
The submission of private respondent AMARI that it believed in good faith that its AJVA
does not suffer from any legal infirmity should not be dismissed with a cavalier
And what about rights that have been vested in private corporations in the meantime? In
attitude. First, respondent AMARI contends that it relied on the unbroken opinions of the
the words of Dean Roscoe Pound, “[i]n civilized society men must be able to assume that they
Department of Justice allowing the entity that undertook the reclamation project to be paid
may control, for purposes beneficial to themselves, what they have discovered and
with part of the reclaimed lands. It calls our attention to DOJ Opinion No. 130, dated July 15,
appropriated to their own use, what they have created by their own labor and what they have
l939, given under the 1935 Constitution, and rendered by no less than the eminent Chief
required under the existing social and economic order. This is a jural postulate of civilized
Justice Jose Abad Santos, then the Secretary of Justice, to the effect that “reclaimed land
society as we know it. The law of property in the widest sense, including incorporeal property
belong to the entity or person constructing the work for the reclamation of the land,” viz:
and the growing doctrines as to protection of economically advantageous relations, gives
effect to the social want or demand formulated in the postulate.”47 It appears we have not
accounted for the rights of others who are not even involved in the instant case. “Section 1, Article XII of the Constitution classifies lands of the public domain in the Philippines
into agricultural, timber and mineral. This is the basic classification adopted since the
enactment of the Act of Congress of July 1, 1902, known as the Philippine Bill. At the time of
The underlying issue is about trust and confidence in our government. If we want to deal
the adoption of the Constitution of the Philippines, the term “Agricultural public lands” had,
with the perceived mistrust in the motivation of our leaders, the solution rests elsewhere. In
therefore, acquired a technical meaning in our public land laws. The Supreme Court of the
the same manner that we do not have to scorch the face to treat a pimple, so must we not
Philippines in the leading case of Mapa vs. Insular Government, 10 Phil. 175, held that the
prevent executive and legislative intent from disposing reclaimed lands, which in the first place
phrase ‘agricultural public lands’ means those public lands acquired from Spain which are
had to be “constructed” so it would exist, very much unlike the permanent patches of earth
neither timber or mineral lands. This definition has been followed by our Supreme Court in
that we should rightly control.
many subsequent cases (Montano vs. Ins. Gov’t, 12 Phil. 572) by prescribing distinct rules as
to their disposition. Lands added to the shore by accretion belong to the State while lands
Giving petitioner Chavez a full recognition of his right to access matters of public concern reclaimed belong to the entity or person constructing the work for the reclamation of the
is a correct step in the appropriate direction. The ponencia should have cut and cut clean land.”
there as we must do now. Anything beyond that, as the ponencia has done previously, is
ivory-tower and unaccountable interventionism at its worst.

PREMISES CONSIDERED, I vote to GRANT the Motions for Reconsideration and DISMISS

The advent of the 1973 and the 1987 Constitutions does not appear to have changed the
the Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary
opinion of the DOJ.1 Secondly, respondent AMARI avers that Congress has consistently
restraining order EXCEPT as to the right of petitioner Francisco I. Chavez to have access to all
enacted laws allowing portions of reclaimed lands to be paid to whoever undertook the work.
information relevant to the negotiation of government contracts including but not limited to
These laws passed under the 1935 Constitution are, among others, the following:
evaluation reports, recommendations, legal and expert opinions, minutes of meetings, terms
of reference and other documents attached to such reports or minutes, all relating to any
proposed legitimate undertaking, which shall at all times be respected, without prejudice to “(i)Rep. Act No. 161 (1947) which authorizes the City of Bacolod to undertake
any appropriate action the petitioner may hereafter take in the premises. reclamation and own the reclaimed lands;
 (ii)Rep. Act No. 287 (1948) which authorizes the Municipality of Catbalogan, Samar to
undertake reclamation and own the reclaimed lands;
(iii)Rep. Act No. 1132 (1954) which also authorizes the City of Bacolod to lease out or sell
reclaimed lands;
(iv)Rep. Act No. 3857 (1964), as amended by Rep. Act No. 4654 (1966), which authorizes
Cebu to reclaim lands and own the reclaimed lands;
(v)Rep. Act No. 4663 (1966) which authorizes the Cagayan De Oro Port Authority to
undertake reclamation and own the reclaimed lands;
(vi)Rep. Act No. 4776 (1966) which provides for the authority of Tacloban City to
undertake reclamation and to lease, sell or barter such reclaimed land;
(vii)Rep. Act No. 4850 (1966) which authorizes the Laguna Lake Development Authority
to undertake reclamation and to own such reclaimed land;
(viii)Rep. Act No. 5412 (1968) which authorizes General Santos City to undertake
reclamation and to own such reclaimed land;
(ix)Rep. Act No. 5518 (1969) which authorizes the city of Oroquieta to undertake
reclamation and to own such reclaimed land;
(x)Rep. Act No. 5519 (1969) which authorizes the City of Mandaue to undertake
reclamation and to own such reclaimed land;
(xi)Rep. Act No. 5798 (1969) which authorizes the City of Dumaguete to undertake
reclamation and to own such reclaimed land;
(xii)Rep. Act No. 5956 (1969) [An Act Making the Municipality of Dapa, Province of
Surigao Del Norte, a Sub-Port of Entry, and Authorizing the Appropriation of the
Necessary Funds for the Operation of a Customs Service Therein] which authorizes the
City to undertake reclamation and to own such reclaimed land.”
The same kind of laws was passed by Congress under the 1973 and 1987 Constitutions.
Respondent AMARI cites, among others, the following laws:
. “(i)Exec. Order No. 1086 (1986) [Tondo Foreshore Area], as amended by
Proclamation No. 39 (1992), which provides that reclaimed lands shall be owned by
the National Housing Authority;
. (ii)Rep. Act No. 6957 (1990) [Build-Operate-Transfer Law] which provides that in
case of reclamation, the repayment scheme may consist of a grant of a portion of
the reclaimed land;
. (iii)Rep. Act No. 7160 (1992) [Bases Conversion Development Authority] which
authorizes the BCDA to reclaim lands and to own the reclaimed lands;
. (iv)Rep. Act No. 7621 (1992) [Cebu Port Authority] which authorizes the Cebu Port
Authority to reclaim lands and to own the reclaimed lands.”
Republic Act No. 6957, enacted in 1990, otherwise known as the Build-Operate-and-Transfer
Law (BOT Law), as amended by R.A. No. 7718, is of great significance to the case at bar. The
Senate deliberations on the law clearly show that in case of reclamation undertakings, the
repayment scheme may consist of the grant of a portion of the reclaimed land. I quote the
pertinent deliberations, viz.:2
“x x x
The President Pro Tempore.  We are still in the period of interpellations.
Senator Gonzales.  Mr. President.
The President Pro Tempore.  Senator Gonzales is recognized.
Senator Gonzales.  Mr. President, may I be permitted to ask a few questions from the
distinguished Sponsor.
Senator Ziga.  Yes, Mr. President.
The President Pro Tempore.  Please proceed.
Senator Gonzales.  Mr. President, Section 6 provides for the repayment scheme. It provides
here for the financing, construction, operation, and maintenance of any infrastructure
project undertaken pursuant to the provisions of this Act, the contractor shall be entitled to
a reasonable return of his investment, operating and maintenance costs in accordance with
the bid proposal of the contractor as accepted by the concerned contracting infrastructure
agency or local government unit and incorporated in the contract terms and conditions.
This repayment scheme is to be effected by authorizing the contractor to charge and
collect reasonable tolls, fees and rentals for the use of the project facilities, et cetera. May
I know, distinguished colleague, whether this repayment scheme is exclusive, in the sense
that the repayment here would always consist in authorizing the contractor to charge and
collect reasonable tools, fees, or rentals for the use of the project facilities?
Senator Ziga.  Exclusive to the . . .?
Senator Gonzales.  Exclusive in the sense that no other repayment scheme may be pursued or
adopted?
Senator Ziga.  Yes, Mr. President.
Senator Gonzales.  If it be so, Mr. President, I notice that, among others, the project that can
be the subject of the build-operate-and-transfer scheme are land reclamations.
Senator Ziga.  That is correct, Mr. President.
Senator Gonzales.  Now, in land reclamation, does the distinguished Gentleman expect that
the one or the builder or contractor who effects or undertakes the reclamation project will
be merely repaid or will be required to recoup his investments, plus profits, and otherwise,
by imposing tolls, That is not the usual arrangement as far as land reclamation is
concerned.
Senator Ziga.  Yes, Mr. President, “Tolls” here are concentrated more on horizontal
constructions, such as roads and bridges.
Senator Gonzales.  Yes, Mr. President, but undoubtedly, the priority projects here would be
land reclamation. In land reclamation, the usual arrangement is that there should be a
certain percentage of the reclaimed area that would be under the ownership of the
Government. On the other hand, a certain percentage of the land area reclaimed would go
to the contractor or the reclaiming entity.
Senator Ziga.  Yes, Mr. President.
Senator Gonzales.  If as the Gentleman now say that Section 6, which is the repayment
scheme, is exclusive, then that would not be allowable and we cannot effect land
reclamation.
Senator Ziga.  Yes, Mr. President, I believe that there is a little bit of difference that probably
this concept, that the Gentleman put into light here by the reclamation project, could be
met under the build-and-transfer scheme only.
Senator Gonzales.  Yes, Mr. President the build-and-transfer scheme, but there is no question
that they are already covered, either by the build-operate-and-transfer scheme and build-
and-transfer scheme. The question is repayment. How will the contractor be able to
recoup his investments, plus reasonable returns of whatever amount that he had invested
for the purpose? I think, the distinguished Gentleman is agreeable that the imposition of
tolls, fees, and rentals would not be appropriate.
Senator Ziga.  In reclamation.
Senator Gonzales.  Yes, Mr. President
Senator Ziga.  Yes, Mr. President, believe that there is a space for improvement on these
reclamation-projects.
Senator Gonzales.  So, we can provide for another scheme of repayment outside of the
repayment scheme as provided for in Section 6 of the bill now.
Senator Ziga.  Yes, Mr. President.
Senator Gonzales.  Now, would a foreign entity, probably, wholly owned by foreigners, be
authorized to engage in land reclamation?
Senator Ziga.  In the earlier interpellation, we have stated that the issue of the sharing of
60:40 is one of the acceptable points of amendment. I believe that, in this bill, we are still
covered by that ratio. As of now, this bill intends that it can only allow contractor or
developers, whether they be private corporations, but with the requirements of the
Constitution as to foreign participation.
Senator Gonzales.  Yes, Mr. President. Because, in Section 2, paragraph (a) provides:
. . . any private individual, partnership corporation or firm desiring to undertake the
construction and operation of any of the infrastructure facilities mentioned in Section 3 of this
Act. The private individual contractor/developer must be a Filipino citizen. For a corporation,
partnership or firm, 75 percent of the capital must be owned by the citizens of the Philippines
in accordance with Letter of Instructions No. 630.
My problem here is in land reclamation, Mr. President. Normally, the arrangement here is
that a certain percentage goes to the Government, and a certain percentage of the reclaimed
land would go to the developer or the contractor. Now, would the distinguished Gentleman
require a 75:25 percent ratio as far as the ownership of stocks are concerned, while the
Constitution allows a 60:40 ratio as far as ownership of the land is concerned?
Senator Ziga.  Mr. President, we have stated that the requirements of the Constitution would
be adhered to.
Senator Gonzales.  I see. So it would be sufficient that an entity, a corporation, or a
partnership that undertakes a land reclamation project be owned on the basis of the 60:40
ratio between Filipino citizens and foreigners.
Senator Ziga.  Yes, that is correct, Mr. President.
Senator Gonzales.  All of these would require undoubtedly amendments in this bill. Would the
distinguished Gentleman be willing to, at least, consider these amendments at the
opportune time?
Senator Ziga.  Yes, Mr. President.
Senator Gonzales.  Thank you, Mr. President.”
On the basis of his interpellations, Senator Gonzales then introduced the following amendment
which was accepted by Senator Ziga and approved by the Senate, viz:3
“GONZALES AMENDMENT
Senator Gonzales.  Mr. President, between lines 8 and 9, I am proposing a new paragraph
which would read as follows:
IN CASE OF LAND RECLAMATION OR THE BUILDING OF INDUSTRIAL ESTATES, THE
REPAYMENT SCHEME MAY CONSIST OF THE GRANT OF A PORTION OR PERCENTAGE OF THE
RECLAIMED LAND OR INDUSTRIAL ESTATE BUILT SUBJECT TO CONSTITUTIONAL
REQUIREMENT WITH RESPECT TO THE OWNERSHIP OF LANDS.’
Because, Mr. President, the repayment scheme includes all of these—payment of tolls, fees,
rentals, and charges. But in case of land reclamation, that is not the ordinary arrangement.
Usually, the compensation there takes the form of a portion or a percentage of the reclaimed
land. And I would apply it all, as far as the building of industrial estates is concerned. Of
course, we have to respect the constitutional provision that only Filipino citizens or
corporations—at least, 60 percent of the capital of which is owned by citizens of the
Philippines—may acquire or own lands.
The President.  What is the pleasure of the Sponsor?
Senator Ziga.  Accepted, Mr. President.
Mr. President.  Is there any objection? Any comment? (Silence) Hearing none, the same is
approved.
Senator Gonzales.  Thank you, Mr. President.”
Section 6 of R.A. No. 6957 (BOT Law), as amend, thus provides:
“Section 6. Repayment Scheme.—For the financing, construction, operation and maintenance
of any infrastructure project undertaken through the Build-Operate-and-Transfer arrangement
or any of its variations pursuant to the provisions of this Act, the project proponent shall be
repaid by authorizing it to charge and collect reasonable tolls, fees, and rentals for the use of
the project facility not exceeding those incorporated in the contract and, where applicable, the
proponent may likewise be repaid in the form of a share in the revenue of the project or other
nonmonetary payments, such as, but not limited to, the grant of a portion or percentage of
the reclaimed land, subject to the constitutional requirements with respect to the ownership of
land . . .”
The Rules and Regulations implementing R.A. No. 6957 (BOT Law) , as amended, likewise
provide:
“Sec. 12.13 Repayment Scheme
xxx
“Where applicable, the proponent may likewise be repaid in the form of a share in the
revenue of the project or other non-monetary payments, such as, but not limited to the grant
of commercial development rights or the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirement that only Filipino citizens or in the case of
corporations only those with at least 60% Filipino equity will be allowed to own land.”
But this is not all. Respondent AMARI points to P.D. No. 1085, the charter of the respondent
PEA, which conveyed to it the reclaimed lands within the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) including the lands subject of the case at bar and which
authorized respondent PEA to dispose of said lands. Pursuant to existing laws, rules, and
regulations, it appears that respondent PEA has the discretion to pay the entity reclaiming the
lands a portion or percentage of said lands. P.D. No. 1085 pertinently provides:
“WHEREAS, the National Government acting through the Department of Public Highways is
presently undertaking pursuant to the provisions of Section 3(m) of Republic Act No. 5137, as
amended by Presidential Decree No. 3-A, the reclamation of a portion of the foreshore and
offshore areas the Manila Bay from the Cultural Center of the Philippines passing through
Pasay City, Parañaque, Las Piñas, Zapote, Bacoor up to Cavite City;
WHEREAS, in the implementation of the above-cited laws bidding was held for the
reclamation work and the corresponding contract awarded to the Construction and
Development Corporation of the Philippines;
WHEREAS, it is in the public interest to convert the land reclaimed into a modern city and
develop it into a governmental, commercial, residential and recreational complex and this is
better accomplished through a distinct entity organized for the purpose;
NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby decree and order the following:
The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development Corporation of
the Philippines dated November 20, 1973 and/or any other contract or reclamation covering
the same area is hereby transferred, conveyed and assigned to the ownership and
administration of the Public Estates Authority established pursuant to P.D. No. 1084; Provided,
however, That the rights and interest of the Construction and Development Corporation of the
Philippines pursuant to the aforesaid contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and assume the
obligations of the Republic of the Philippines (Department of Public Highways) arising from, or
incident to, the aforesaid contract between the Republic of the Philippines and the
Construction and Development Corporation in the Philippines.
In consideration of the foregoing transfer and assignment, the Public Estates Authority
shall issue in favor of the Republic of the Philippines the corresponding shares of stock in said
entity with an issued value of said shares of stock shall be deemed fully paid and non-
assessable. The Secretary of Public Highways and the General Manager of the Public Estates
Authority shall execute such contracts or agreements, including appropriate agreements with
the Construction and Development Corporation of the Philippines, as may be necessary to
implement the above.
 Special land patent/patents shall be issued by the Secretary of Natural Resources in favor
of the Public Estates Authority without prejudice to the subsequent transfer to the contractor
or his assignees of such portion or portions of the land reclaimed or to be reclaimed as
provided for in the above-mentioned contract. On the basis of such patents, the Land
Registration Commission shall issue the corresponding certificates of title.”
Former President Corazon C. Aquino also implemented P.D. No. 1085 by issuing Special Patent
No. 3517 ceding absolute rights over the said properties to respondent PEA, which rights
include the determination whether to use parts of the reclaimed lands as compensation to the
contractor, viz:
“TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
WHEREAS, under Presidential Decree No. 1085 dated February 4, 1977 the ownership
and administration of certain reclaimed lands have been transferred, conveyed and
assigned to the Public Estates Authority, a government entity created by virtue of
Presidential Decree No. 1084 dated February 4, 1977, subject to the terms and
conditions imposed in said Presidential Decree No. 1085;
WHEREAS, pursuant to said decree the parcels of land so reclaimed under the
Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) of the Public Estates
Authority consist of a total area of 1,915,894 square meters surveyed under Plans RL-13-
000002 to RL-13-000005 situated in the Municipality of Parañaque;
NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines
and in conformity with the provisions thereof and of Presidential Decree No. 1085,
supplemented by Commonwealth Act No. 141, as amended, there are hereby granted
and conveyed unto the Public Estates Authority the aforesaid tracts of land containing a
total area of one million nine hundred fifteen thousand eight hundred ninety-four
(1,915,894) square meters; the technical descriptions of which are hereto attached and
made an integral part hereof;
TO HAVE AND TO HOLD the said tracts of land, with appurtenances thereunto of
right belonging unto the Public Estates Authority, subject to private rights, if any there
be, and to the condition that the said land shall be used only for the purposes authorized
under Presidential Decree No. 1085;
IN TESTIMONY WHEREOF, and by authority vested in me by law, I, CORAZON C.
AQUINO, President of the Philippines, hereby caused these letters to be made patent
and the seal of the Republic of the Philippines to be hereunto affixed.”
Respondent AMARI further claims that the administration of former President Fidel V.
Ramos upheld the legality of the original JVA. On the other hand, it alleges that the amended
JVA was the subject of prior exhaustive study and approval by the Office of the General
Corporate Counsel, and the Government Corporate Monitoring and Coordinating Committee
composed of the Executive Secretary of Finance, Secretary of Budget and Management,
Secretary of Trade and Industry, the NEDA Director-General, the head of the Presidential
Management Staff, the Governor of the Bangko Sentral ng Pilipinas and the Office of the
President.4 The amended JVA was executed on March 30, 1999 and approved on May 28,
1999 under the administration of former President Joseph E. Estrada.5
In sum, the records give color to the claim of respondent AMARI that it should not be
blamed when it consummated the JVA and AJVA with its co-respondent PEA. It relied on our
laws enacted under the 1935, 1973 and 1987 Constitutions and their interpretations by the
executive departments spanning the governments of former Presidents Aquino, Ramos and
Estrada, all favorable to the said JVA and AJVA. Finding no legal impediments to these
contracts, it claims to have invested some P9 billion on the reclamation project.
Should this P9 billion investment just come to naught? The answer, rooted in the concept
of fundamental fairness and anchored on equity, is in the negative. Undoubtedly, our Decision
of July 26, 2002 is one of first impression as the ponente himself described it. As one of first
impression, it is not unexpected that it will cause serious unsettling effects on property rights
which could have already assumed the color of vested rights. Our case law is no stranger to
these situations. It has consistently held that new doctrines should only apply prospectively to
avoid inequity and social injustice. Thus in Co vs. Court of Appeals, et al.,6 this Court, thru
Chief Justice Andres Narvasa, held:
“The principle of prospectivity of statutes, original or amendatory, has been applied in many
case: These include: Buyco v. PNB, 961, (sic) 2 SCRA 682 (June 30, 1961), holding that
Republic Act No. 1576 which divested the Philippine National Bank of authority to accept back
pay certificates in payment of loans, does not apply to an offer of payment made before
effectivity of the act; Lagardo v. Masaganda, et al., 5 SCRA 522 (June 30, 1962), ruling that
RA 2613, as amended by RA 3090 on June, 1961, granting to inferior courts jurisdiction over
guardianship cases, could not be given retroactive effect, in the absence of a saving
clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that Sections 9 and 10 of Executive
Order No. 90, amending Section 4 of PD 1752, could have no retroactive application; People
v. Que PO Lay, 94 SCRA 640, holding that a person cannot be convicted of violating Circular
No. 20 of the Central Bank, when the alleged violation occurred before publication of the
Circular in the Official Gazette; Baltazar v. CA, 104 SCRA 619, denying retroactive application
to P.D. No. 27 decreeing the emancipation of tenants from the bondage of the soil, and P.D.
No. 316 prohibiting ejectment of tenants from rice and corn farm holdings, pending the
promulgation of rules and regulations implementing P.D. No. 27; Nilo v. Court of Appeals, 128
SCRA 519, adjudging that RA 6389 which removed ‘personal cultivation’ as a ground for the
ejectment of a tenant cannot be given retroactive effect in the absence of a statutory
statement for retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the old
Administrative Code by RA 4252 could not accorded retroactive effect; Ballardo v.
Borromeo, 161 SCRA 500, holding that RA 6389 should have only prospective application (see
also Bonifacio v. Dizon, 117 SCRA 294 and Balatbat v. CA, 205 SCRA 419).
 The prospectivity principle has also been made to apply to administrative rulings and
circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA, October 12, 1981, 108 SCRA 142,
holding that a circular or ruling of the Commissioner of Internal Revenue may not be given
retroactive effect adversely to a taxpayer; Sanchez v. COMELEC, 193 SCRA 317, ruling that
Resolution No. 90-0590 of the Commission on Elections, which directed the holding of recall
proceedings, had no retroactive application; Romualdez v. CSC, 197 SCRA 168, where it was
ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be given retrospective effect so
as to entitle to permanent appointment an employee whose temporary appointment had
expired before the Circular was issued.
The principle of prospectivity has also been applied to judicial decisions  which, ‘although in
themselves not laws, are nevertheless evidence of what the laws mean (this being) the reason
why under Article 8 of the New Civil Code, Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system.’
So did this Court hold, for example, in People v. Jabinal, 55 SCRA 607, 611:
‘It will be noted that when appellant was appointed Secret Agent by the Provincial
Government in 1962, and Confidential Agent by the Provincial Commander in 1964, the
prevailing doctrine on the matter was that laid down by Us in People v. Macarandang (1959)
and People v. Lucero (1958). Our decision in People v. Mapa, reversing the aforesaid doctrine,
came only in 1967. The sole question in this appeal is; should appellant be acquitted on the
basis of our rulings in Macarandang and Luceco, or should his conviction stand in view of the
complete reversal of the Macarandang and Lucero in Mapa?
Decisions of this Court, although in themselves not laws, are nevertheless evidence what
the laws mean, and this is the reason why under Article 8 of the New Civil Code, ‘Judicial
decisions applying or interpreting the laws or the Constitution shall form a part of the legal
system.’ The interpretation upon a law was originally passed, since this Court’s construction
merely established the contemporaneous legislative intent that the law thus construed intends
to effectuate. The settled rule supported by numerous authorities is a restatement of the legal
maxim ‘legis interpretatio legis vim obtinet’—the interpretation placed upon the written law by
a competent court has the force of law. The doctrine laid down in Lucero and
Macarandang was part of the jurisprudence, hence, of the law of the land, at the time
appellant was found in possession of the firearm in question and when he was arraigned by
the trial court. It is true that the doctrine was overruled in the Mapa case in 1967, but when
doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof. This is specially true in the construction and application of criminal
laws, where it is necessary that the punishability of an act be reasonably foreseen for the
guidance of society.’
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of
Appeals, et al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of Appeals,
et al. (G.R. No. 97998), January 27, 1992, 205 SCRA 515, 527-528:
‘We sustain the petitioner’s position. It is undisputed that the subject lot was mortgaged to
DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the
petitioners on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended
was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and
respondents Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil
Code ‘judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines.’ But while our decisions form part of the law of the land,
they are also subject to Article 4 of the Civil Code which provides that ‘laws shall have no
retroactive effect unless the contrary is provided.’ This is expressed in the familiar legal
maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law usually divests rights that
have already become vested or impairs the obligations of contract and hence, is
unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1061 (sic)]).
The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974]
when a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.’
A compelling rationalization of the prospectivity principle of judicial decisions is well set
forth in the oft-cited case of Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371,
374 [1940]. The Chicot doctrine advocates imperative necessity to take account of the actual
existence of a statute prior to its nullification, as an operative fact negating acceptance of “a
principle of absolute retroactive invalidity.”
Thus, in this Court’s decision in Tañada v. Tuvera, promulgated on April 24, 1985—which
declared ‘that presidential issuances of general application, which have not been published,
shall have no force and effect,’ and as regards which declaration some members of the Court
appeared ‘quit apprehensive about the possible unsettling effect (the) decision might have on
acts done in reliance on the validity of those presidential decrees’—the Court said:
The answer is all too familiar. In similar situations in the past this Court had taken the
pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter States
Bank (308 U.S. 371, 374) to wit:
‘The courts below have proceeded on the theory that the Act of Congress, having been found
to be unconditional, was not a law; that it was inoperative, conferring no rights and imposing
no duties, and hence affording no basis for the challenged decree. Norton Shellby County, 118
US 425, 442; Chicago, I, & L. Ry, Co. v. Hackett, 228 U.S 559, 566. It is quite clear, however,
that such broad statements as to the effect of a determination of unconstitutionality must be
taken with qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects—with respect to particular conduct,
private and official. Questions of rights claimed to have become vested, of status, or prior
determinations deemed to have finality and acted upon accordingly, public policy in the light
of the nature both of the statute and of its previous application, demand examination.  These
questions are among the most difficult of those which have engaged the attention of courts,
state and federal, and it is manifest from numerous decisions that an all-inclusive statement of
a principle of absolute retroactive invalidity cannot be justified.’
Much earlier, in De Agbayani v. PNB, 38 SCRA 429—concerning the effects of the
invalidation of “Republic Act No. 342, the moratorium legislation, which continued Executive
Order No. 32, issued by the then President Osmeña, suspending the enforcement of payment
of all debts and other monetary obligations payable by war sufferers,” and which had been
“explicitly held in Rutter v. Esteban (93 Phil. 68 [1953]) (to be) in 1953 unreasonable, and
oppressive, and should not be prolonged a minute longer”—the Court made substantially the
same observations, to wit:
‘The decision now on appeal reflects the orthodox view that an unconstitutional act, for that
matter an executive order or a municipal ordinance likewise suffering from the infirmity,
cannot be the source of any legal rights or duties. Nor can it justify any official act taken under
it. Its repugnancy to the fundamental law once judicially declared results in its being to all
intents and purposes a mere scrap of paper. It is understandable why it should be so, the
Constitution being supreme and paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may it however
be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity
challenged legislative or executive act must have been in force and had to be complied with.
This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled
to obedience and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be had to
what has been done while such legislative or executive act was in operation and presumed to
be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to reflect awareness that precisely
because the judiciary is the governmental organ which has the final say on whether or not a
legislative or executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It would be to
deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication.
In the language of an American Supreme Court decision: The actual existence of a statute,
prior to such a determination [of unconstitutionality] is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects,—with respect to particular relations, individual and corporate,
and particular conduct, private and official (Chicot County Drainage Dist. v. Baxter States
Bank, 308 US 371, 374 [1940]). This language has been quoted with approval in a resolution
in Araneta v. Hill (93 Phil. 1002 [1953]) and the decision in Manila Motor Co., Inc. v.
Flores (99 Phil. 738 [1956]). An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co. (L-21114, Nov. 28, 1967, 21 SCRA
1095).
Again, treating of the effect that should be given to its decision in Olaguer v. Military
Commission No. 34,—declaring invalid criminal proceedings conducted during the martial law
regime against civilians, which had resulted in the conviction and incarceration of numerous
persons—this Court, in Tan vs. Barrios, 190 SCRA 686, at p. 700, ruled as follows:
‘In the interest of justice and consistency, we hold that Olaguer should, in principle, be applied
prospectively only to future cases and cases still ongoing or not yet final when that decision
was promulgated. Hence, there should be no retroactive nullification of final judgments,
whether of conviction or acquittal, rendered by military courts against civilians before the
promulgation of the Olaguer decision. Such final sentences should not be disturbed by the
State. Only in particular cases where the convicted person or the State shows that there was
serious denial of constitutional rights of the accused, should the nullity of the sentence be
declared and a retrial be ordered based on the violation of the constitutional rights of the
accused, and not on the Olaguer doctrine. If a retrial is no longer possible, the accused should
be released since the judgment against him is null on account of the violation of his
constitutional rights and denial of due process.
The trial of thousands of civilians for common crimes before the military tribunals and
commissions during the ten-year period of martial rule (1971-1981) which were created under
general orders issued by President Marcos in the exercise of his legislative powers is an
operative fact that may not just be ignored. The belated declaration in 1987 of the
unconstitutionality and invalidity of those proceedings did not erase the reality of their
conquences which occurred long before our decision in Olaguer was promulgated and which
now prevent us from carrying Olaguer to the limit of its logic. Thus did this Court rule in
Municipality of Malabang v. Benito, 27 SCRA 533, where the question arose as to whether the
nullity of creation of a municipality by executive order wiped out all the acts of the local
government abolished.’
It would seem, then, that the weight of authority is decidedly in favor of the proposition that
the Court’s decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987)—i.e., that
a check issued merely to guarantee the performance of an obligation is nevertheless covered
by B.P. Blg. 22—should not be given retrospective effect to the prejudice of the petitioner and
other persons similarly situated, who relied on the official opinion of the Minister of
Justice that such a check did not fall within the scope of B.P. Blg. 22.”
Despite the stream of similar decisions, the majority holds that it would have been
sympathetic to the plea for a prospective application of our Decision “x x x if the prevailing law
or doctrine at the time of the signing of the amended JVA was that a private corporation could
acquire alienable lands of the public domain and the Decision annulled the law or reversed the
doctrine.”7 It explains that “under the 1935 Constitution, private corporations were allowed to
acquire alienable lands of the public domain. But since the effectivity of the 1973 Constitution,
private corporations were banned from holding, except by lease, alienable lands of the public
domain. The 1987 Constitution continued this constitutional prohibition.”8
I beg to disagree. We should put section 2 of Article XII of the Constitution in its proper
perspective. It provides:
“All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens.  Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.” (Emphasis supplied.)
With due respect, the plea for prospectivity is based on the ground that our Decision is
novel not because it bars private corporations like respondent AMARI from acquiring alienable
lands of the public domain except by lease but because for the first time we held, among
others, that joint venture agreements cannot allow entities undertaking reclamation of lands
to be paid with portions of the reclaimed lands. This is the first case where we are interpreting
that portion of section 2, Article XII of the Constitution which states that “ x x x the
exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. The State may directly undertake such activities, or it may enter
into co-production, joint venture, or production sharing agreements with Filipino citizens or
corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years and under such terms and conditions as may be provided by
law.” Indisputably, this part of section 2, Article XII of the 1987 Constitution is new as it is
neither in the 1973 or 1935 Constitutions. Undoubtedly too, our Decision goes against the
grain of understanding of the said provision on the part of the Executive and Legislative
Departments of our government. The disquieting effects of our Decision interpreting said
provision in a different light cannot be gainsaid.
The majority concedes that in Benzonan,9 we held that the sale or transfer of the land
involved in said case may no longer be invalidated because of “weighty considerations of
equity and social justice.”10 Nonetheless, the majority holds that there are “special
circumstances that disqualify AMARI from invoking equity principles,” viz.:11
“There are, moreover, special circumstances that disqualify Amari from invoking equity
principles. Amari cannot claim good faith because even before Amari signed the Amended JVA
on March 30, 1999, petitioner had already filed the instant case on April 27, 1998 questioning
precisely the qualification of Amari to acquire the Freedom Islands. Even before the filing of
this petition, two Senate Committees had already approved on September 16, 1997 Senate
Committee Report No. 560. This Report concluded, after a well-publicized investigation into
PEA’s sale of the Freedom Islands to Amari, that the Freedom Islands are inalienable lands of
the public domain. Thus, Amari signed the Amended JVA knowing and assuming all the
attendant risks, including the annulment of the Amended JVA.
Amari has also not paid to PEA the full reimbursement cost incurred by PEA in reclaiming
the Freedom Islands. Amari states that it has paid PEA only P300,000,000.00 out of the
P1,894,129,200.00 total reimbursement cost agreed upon in the Amended JVA. Moreover,
Amari does not claim to have even initiated the reclamation of the 592.15 hectares of
submerged areas covered in the Amended JVA, or to have started to construct any permanent
infrastructure on the Freedom Islands. In short, Amari does not claim to have introduced any
physical improvement or development on the reclamation project that is the subject of the
Amended JVA. And yet Amari claims that it had already spent a “whopping P9,876,108,638.00
as its total development costs as of June 30, 2002. Amari does not explain how it spent the
rest of the P9,876,108,638.00 total project cost after paying PEA P300,000,000.00. Certainly,
Amari cannot claim to be an innocent purchaser in good faith and for value.”
Again, with due respect, I beg to disagree. The alleged facts and factors cited by the
majority do not provide sufficient basis to condemn respondent AMARI of bad faith. First, the
petition at bar was filed before the amended JVA was consummated. As alleged by the
petitioner, he filed the petition to:12
“x x x
5.1 Compel respondent to make public all documents, facts and data related to or in
connection with the ongoing RENEGOTIATIONS between respondents PEA and AMARI, and
5.2 Enjoin respondents from privately entering into perfecting and/or executing any new
agreement with AMARI.”
Petitioner invoked section 7, Article III of the Constitution which recognizes the right of people
to information on matters of public concern and section 28, Article II of the Constitution which
provides that the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest. In fine, the amended JVA was yet inexistent at the time
the petition at bar was filed  and could not provide a basis for a finding of bad faith on the part
of respondent AMARI. Secondly, Senate Committee Report No. 560 also pertains to
the original JVA. Precisely because of the report, former President Ramos issued Presidential
Order No. 365 which established a presidential legal task force to study the legality of
the original JVA. The legal task force did not reach the same conclusions as the Senate. In any
event, the original JVA was renegotiated  and was approved by former President Estrada on
May 28, 1999 following intensive review by the Office of the General Corporate Counsel and
the Government Corporate Monitoring and Coordinating Committee which, as aforestated, is
composed of the Executive Secretary, the Secretary of Finance, the Secretary of Budget and
Management, the Secretary of Trade and Industry, the NEDA Director General, the Head of
the Presidential Management Staff and the Governor of the Bangko Sentral ng Pilipinas and
the Office of the President. To be sure, the value of Senate Report No. 560 is not as proof of
good or bad faith of any party but as a study in aid of legislation.  As a legislative body, the
Senate does not determine adjudicative facts. Thirdly, the allegation that respondent AMARI
has not complied with its obligation to PEA is a matter that cannot be resolved in the case at
bar. If at all it can be raised, it is PEA that should raise it in a proper action for breach of
contract or specific performance.  This Court is not a trier of facts and it cannot resolve these
allegations that respondent AMARI violated its contract with PEA. The majority cannot
condemn respondent AMARI of acting bad faith on the basis of patently inadmissible evidence
without running afoul of the rudimentary requirements of due process.  At the very least, the
majority should hear respondent AMARI on the issue of its alleged bad faith before
condemning it to certain bankruptcy.
This is not all. There is another dimension of unfairness and inequity suffered by
respondent AMARI as a consequence of our Decision under reconsideration. It cannot be
denied that respondent AMARI spent substantial amount of money (the claim is P9 billion),
fulfilling its obligation under the AJVA, i.e., provide the financial, technical, logistical,
manpower, personnel and managerial requirements of the project. Our Decision is silent as a
sphinx whether these expenses should be reimbursed. Respondent AMARI may not be paid
with reclaimed lands, but it can be remunerated in some other ways such as in cash. Our
omission to order that respondent AMARI be paid commensurate to its expenses does not sit
well with our decision in Republic of the Philippines vs. CA and Republic Estate Corporation, et
al.13 where we held:
“x x x
Although Pasay City and RREC did not succeed in their undertaking to reclaim any area
within the subject reclamation project, it appearing that something compensable was
accomplished by them, following the applicable provision of law and hearkening to the dictates
of equity, that no one, not even the government shall unjustly enrich oneself/itself at the
expense of another, we believe, and so hold, that Pasay City and RREC should be paid for the
said actual work done and dredge-fill poured in . . . ”
Needless to state, the government will be unjustly enriched if it will not be made to
compensate the respondent AMARI for the expenses it incurred in reclaiming the lands subject
of the case at bar.
We should strive for consistency for rights and duties should be resolved with reasonable
predictability and cannot be adjudged by the luck of a lottery. Just a month ago or on March
20, 2003 this Court en banc resolved a motion for reconsideration in Land Bank vs. Arlene de
Leon, et al., G.R. No. 143275. In this case, we resolved unanimously to give a prospective
effect to our Decision which denied LBP’s petition for review. Written by our esteemed
colleague, Mr. Justice Corona, our resolution held:
“Be that as it may, we deem it necessary to clarify our Decision’s application to and effect on
LBP pending cases filed as ordinary appeals before the Court of Appeals. It must first be
stressed that the instant case poses a novel issue; our Decision herein will be a landmark
ruling on the proper way to appeal decisions of Special Agrarian Courts. Before this case
reached us, LBP had no authoritative guideline on how to appeal decisions of Special Agrarian
Courts considering the seemingly conflicting provisions of Sections 60 and 61 of RA 6657.
More importantly, the Court of Appeals has rendered conflicting decisions on this precise
issue. On the strength of Land Bank of the Philippines vs. Hon. Feliciano
Buenaventura, penned by Associate Justice Salvador Valdez, Jr. of the Court of Appeals,
certain decisions of the appellate court held that an ordinary appeal is the proper mode. On
the other hand, a decision of the same court, penned by Associate Justice Romeo Brawner
and subject of the instant review, held that the proper mode of appeal is a petition for review.
In another case, the Court of Appeals also entertained an appeal by the DAR filed as a petition
for review.
On account of the absence of jurisprudence interpreting Sections 60 and 61 of RA 6657
regarding the proper way to appeal decisions of Special Agrarian Courts as well as the
conflicting decisions of (the) Court of Appeals thereon, LBP cannot be blamed for availing of
the wrong mode. Based on its own interpretation and reliance on the Buenaventura ruling,
LBP acted on the mistaken belief that an ordinary appeal is the appropriate manner to
question decisions of Special Agrarian Courts.
Hence, in the light of the aforementioned circumstances, we find it proper to emphasize
the prospective application of our Decision dated September 10, 2002. A prospective
application of our Decision is not only grounded on equity and fair play but also based on the
constitutional tenet that rules of procedure shall not impair substantive rights.
In accordance with our constitutional power to review rules of procedure of special courts,
our Decision in the instant case actually lays down a rule of procedure, specifically a rule on
the proper mode of appeal from decisions of Special Agrarian Courts. Under Section 5 (5),
Article VIII of the 1987 Philippine Constitution, rules of procedure shall not diminish, increase
modify substantive rights. In determining whether a rule of procedure affects substantive
rights, the test is laid down in Fabian vs. Desierto, which provides that:
‘[I]n determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is
whether the rule really regulates procedure, that is, the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and redress for
a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If
the rule creates a right such as the right to appeal, it may be classified as a substantive
matter, but if it operates as a means of implementing an existing right then the rule deals
merely with procedure.’
We hold that our Decision, declaring a petition for review as the proper mode of appeal
from judgments of Special Agrarian Courts, is a rule of procedure which affects substantive
rights. If our ruling is given retroactive application, it will prejudice LBP’s right to appeal
because pending appeals in the Court of Appeals will be dismissed outright on mere
technicality thereby sacrificing the substantial merits thereof. It would be unjust to apply a
new doctrine to a pending case involving a party who already invoked a contrary view and
who acted in good faith thereon prior to the issuance of said doctrine.”
Our Decision under reconsideration has a far reaching effect on persons and entities similarly
situated as the respondent AMARI. Since time immemorial, we have allowed private
corporations to reclaim lands in partnership with government. On the basis of age-old laws
and opinions of the executive, they entered into contracts with government similar to the
contracts in the case at bar and they invested huge sums of money to help develop our
economy. Local banks and even international lending institutions have lent their financial
facilities to support these reclamation projects which government could not undertake by itself
in view of its scant resources. For them to lose their invaluable property rights when they
relied in good faith on these unbroken stream of laws of congress passed pursuant to our
1935, 1973 and 1987 Constitutions and executive interpretations is a disquieting prospect. We
cannot invite investors and then decapitate them without due process of law.
I vote to give prospective application to our Decision of July 26, 2002.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
The moving force behind the main decision is sound. It proceeds from policies embodied in
our Constitution this seek to guard our natural resources from the exploitation of the few and
to put our precious land under the stewardship of the common Filipino. Yet we, perched upon
our lofty seat in the heights of Olympus, cannot close our eyes to the far-reaching effects that
the decision will have. Neither can we pretend that practical realities supported by our legal
system have to be conceded. These considerations are so basic that we cannot ignore them.
They represent very fundamental rules of law, upon which decades of Philippine jurisprudence
have been built.
I, for one, refuse to close my eyes or remain silent.
The sweeping invalidation of the Amended Joint Venture Agreement (JVA) between the
Public Estates Authority (PEA) and Amari Coastal Bay Development Corporation (hereinafter,
Amari) has left me ill at ease. The draft resolution and the main decision have taken great
pains to explain the majority position with copious research and detailed exposition. However,
scant consideration was given to the fact that P9,876,108,638.00 had already been spent by
the private respondent and that the voiding of the Amended JVA would compel all the parties
to return what each has received.1 I submit that there was no need to resort to such a drastic
measure.
First of all, a historical analysis of the laws affecting reclaimed lands indicates that the
same have been treated by laws as alienable.
Article 5 of the Spanish Law of Waters of 1866 reads:
Lands reclaimed from the sea in consequence of works constructed by the State, or by the
provinces, pueblos, or private persons, with proper permission, shall become the property of
the party constructing such works, unless otherwise provided by the terms of the grant of
authority.
The foregoing clearly mandates that reclaimed property shall belong to the party who
undertook the works. It was on the basis of this provision of law that the Manila Port Area,
which was developed from land dredged by the Department of Public Works and
Communications during the construction of the Manila South Harbor, became private property
of the National Government and registered in its name under the Torrens system.
Republic Act No. 1899, an Act to Authorize the Reclamation of Foreshore Lands by
Chartered Cities and Municipalities, provided:
Sec. 2. Any and all lands reclaimed, as herein provided, shall be the property of the respective
municipalities or chartered cities; Provided, however, That the new foreshore along the
reclaimed areas shall continue to be the property of the National Government.
Again on the basis of the above provisions Pasay City Government entered into a reclamation
contract with the Republic Resources Realty Corporation under which a portion of the
reclaimed land shall be conveyed to the latter corporation.2 However, before the reclamation
was completed, then President Ferdinand E. Marcos issued Presidential Decree No. 3-A, which
provided:
The provisions of any law to the contrary notwithstanding, the reclamation of areas under
water, whether foreshore or inland, shall be limited to the National Government or any person
authorized by it under a proper contract.
All reclamations made in violation of this provision shall be forfeited to the State without
need of judicial action.
Contracts for reclamation still legally existing or whose validity has been accepted by the
National Government shall be taken over by the National Government on the basis of quantum
meruit, for proper prosecution of the project involved by administration.
Thus, the Pasay reclamation project was taken over by the National Government. Later, the
Department of Public Works and Highways (DPWH) entered into a contract with the
Construction and Development Corporation of the Philippines (CDCP) for the reclamation of
the same area and agreed on a sharing arrangement of the land to be reclaimed.
In 1979, PD 1084 was issued, creating the PEA. EO 525 was issued, Section 3 of which states:
All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible
for its administration, development, utilization or disposition in accordance with the provisions
of Presidential Decree No. 1084. Any and all income that the PEA may derive from the sale,
lease or use of reclaimed lands shall be used in accordance with the provisions of Presidential
Decree No. 1084.
Clearly, all the foregoing statutes evince a legislative intent to characterize reclaimed lands as
alienable public lands. In other words, there was never an intention to categorize reclaimed
lands as inalienable lands of the public domain; rather they were expressly made private
property of the National Government subject to disposition to the person who undertook the
reclamation works.
Inasmuch as reclaimed lands are not public lands, the provisions of the Constitution
prohibiting the acquisition by private corporations of lands of the public domain do not apply.
In the same vein, the Court, in Director of Lands v. Intermediate Appellate Court, et al., 3 held
that public lands which have become private may be acquired by private corporations. This
dictum is clearly enunciated by Chief Justice Claudio Teehankee in his concurring opinion, viz:
Such ipso jure conversion into private property of public lands publicly held under a bona fide
claim of acquisition or ownership is the public policy of the Act and is so expressly stated
therein. By virtue of such conversion into private property, qualified corporations may lawfully
acquire them and there is no “alteration or defeating” of the 1973 Constitution’s prohibition
against corporations holding or acquiring title to lands of the public domain, as claimed in the
dissenting opinion, for the simple reason that no public lands are involved.4
Indeed, the Government has the authority to reclaim lands, converting them into its own
patrimonial property. It can contract out the reclamation works and convey a portion of the
reclaimed land by way of compensation.
Secondly, the reason behind the total nullifification of the Amended JVA must be reexamined.
I believe there is some confusion with regard to its infirmities. We must remember that the
Amended JVA is a contract and, as such, is governed by the Civil Code provisions on
Contracts, the essential requisites of which are laid out in the following provision:
Art. 1318. There is no contract unless the following requisites concur:
. (1)Consent of the contracting parties;
. (2)Object certain which is the subject matter of the contract;
. (3)Cause of the obligation which is established.5
The main decision states that the Amended (JVA is void because its “object” is contrary law,
morals, good customs, public order or public policy, and that the “object” is also outside the
commerce of man, citing as authority Article 1409 of the Civil Code. However, it has been
opined, and persuasively so, that the object of a contract is either the thing, right or service
which is the subject matter of the obligation arising from the contract.6 In other words, the
object of the contract is not necessarily a physical thing that by its very nature cannot be the
subject of a contract. The object of a contract can, as it appears so in this case, contemplate a
service. I submit, therefore, that the object herein is not the reclaimed land, no matter how
much emotion these piles of wet soil have stirred up. The proper object is the service that was
to be rendered by Amari, which is the act of reclamation. Surely, reclamation, in and of itself,
is neither contrary to law, morals, good customs, public order nor to public policy. The act of
reclamation is most certainly not outside the commerce of man. It is a vital service utilized by
the Republic to increase the national wealth and, therefore, cannot be cited as an improper
object that could serve to invalidate a contract.
Furthermore, in Section 1.1 (g) of the Amended JVA, the term “Joint Venture Proceeds” is
defined as follows:
“Joint Venture Proceeds” shall refer to all proceeds, whether land or money or their
equivalent arising from the project or from the sale, lease or any other form or disposition or
from the allocation of the Net Usable Area of the Reclamation Area.
It is actually upon this provision of the Amended JVA that its validity hinges. If it is the
contemplated transfer of lands of the public domain to a private corporation which renders the
Amended JVA constitutionally infirm, then resort to the alternative prestation referred to in this
provision will cure the contract. The Civil Code provision on alternative obligations reads as
follows:
Art. 1199. A person alternatively bound by different prestations shall completely perform one
of them.
The creditor cannot be compelled to receive part of one and part of the other undertaking.
In an alternative obligation, there is more than one object, and the fulfillment of one is
sufficient, determined by the choice of the debtor who generally has the right of
election.7 From the point of view of Amari, once it fulfills its obligations under the Amended
JVA, then it would be entitled to its stipulated share of the Joint Venture Profits. In this
instance, Amari would stand as creditor, with PEA as the debtor who has to choose between
two payment forms: 70% of the Joint Venture Profits, in the form of cash or a corresponding
portion of the land reclaimed.8 Since it has been ruled that the transfer of any of the
reclaimed lands to Amari would be unconstitutional,9 one of the prestations of this alternative
obligation has been rendered unlawful. In such case, the following Civil Code provision
becomes pertinent:
Art. 1202. The debtor shall lose the right of choice when among the prestations whereby he is
alternatively bound, only one is practicable.
If all the prestations, except one, are impossible or unlawful, it follows that the debtor can
choose and perform only one. The obligation ceases to be alternative, and is converted into a
simple obligation to perform the only feasible or practicable prestation.10 Even if PEA had
insisted on paying Amari with tracts of reclaimed land, it could not have done so, since it had
no right to choose undertakings that are impossible or illegal.11
We must also remember that, in an alternate obligation, the fact that one of the
prestations is found to be unlawful does not result in the total nullity of the Amended JVA. The
Civil Code provides:
Art. 1420. In case of a divisible contract, if the illegal terms can be separated from the legal
ones, the latter may be enforced.
As a general rule, Article 1420 is allied if there are several stipulations in the contract, some of
which are valid and some void. If the stipulations can be separated from each other, then
those which are void will not have any effect, but those which are valid will be enforced. In
case of doubt, the contract must be considered as divisible or separable.12 The contract itself
provides for severability in case any of its provisions are deemed invalid.13 Curiously, the main
decision makes no mention of the alternative form of payment provided for in Section 1.1 (g)
of the Amended JVA. A reading of the main decision would lead one to conclude that the
transfer of reclaimed land is the only form of payment contemplated by the parties.14 In
truth, the questionable provisions of the Amended JVA can be excised without going against
the intent of the parties or the nature of the contract. Removing all references to the transfer
of reclaimed land to Amari or its transferees will leave us with a simple contract for
reclamation services, to be paid for in cash.
It should also be noted that declaring the Amended JVA to be completely null and void
would result in the unjust enrichment of the state. The Civil Code provision on human relations
states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.15
Again, in Republic v. Court of Appeals,16 it was the finding of this Court that the reclamation
efforts of the Pasay City government and the RREC resulted in “something compensable.” Mr.
Justice Reynato Puno explained it best in his concurring opinion:
Given all the facts, Pasay City and RREC cannot be left uncompensated. The National
Government should not be unjustly enriched at the expense of Pasay City and RREC. Pasay
City and RREC deserve to be compensated quantum meruit and on equitable consideration for
their work.17
Following the applicable provision of law and hearkening to the dictates of equity, that no one,
not even the government, shall unjustly enrich himself at the expense of another,18 I believe
that Amari and its successors in interest are entitled to equitable compensation for their
proven efforts, at least in the form of cash, as provided for under the Amended JVA.
At this juncture, I wish to express my concern over the draft resolution’s pronouncement
that the Court’s Decision can be made to apply retroactively because “(t)he Decision, whether
made retroactive or not, does not change the law since the Decision merely reiterates the law
that prevailed since the effectivity of the 1973 Constitution.” This statement would hold true
for the constitutions, statutes and other laws involved in the case that existed before the
Decision was rendered. However, the issues involved are so novel that even the
esteemed ponente concedes that this case is one of first impression.
For example, Section 3 of E.O. 525 declares that:
All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible
for its administration, development, utilization or disposition in accordance with the provisions
of Presidential Decree No. 1084.
Can we really blame respondents for concluding that any kind of land reclaimed by PEA
becomes the latter’s patrimonial property? It is spelled out as such. It was only the filing of
the present petition which brought to light the possibility that this provision may have already
been modified, even partially repealed by Section 4, Subsections 4, 14 and 15 of the Revised
Administrative Code of 1987.19
Another doctrine which was set aside by the Court’s Decision is the general rule that
alienable land of the public domain automatically becomes private land upon the grant of a
patent or the issuance of a certificate of title.20 Curiously, this legal principle was held to be
inapplicable to government entities,21 despite several analogous cases which may have
reasonably led the respondents to a different conclusion.22
Most significantly, the ruling laid down by the Decision that: “In the hands of the
government agency tasked and authorized to dispose of alienable or disposable lands of the
public domain, these lands are still public, not private land,”23 is not based on any previous
jurisprudence, nor is it spelled out in any law. It is the result of process of induction and
interpretation of several laws which have not been set side by side in such a manner
before.24 This pronouncement has never been made before, and yet now it is law. So when
the Decision claimed that it, “does not change the law,” and that it, “merely reiterates the law
that prevailed since the effectivity of the 1973 Constitution,” we believe such a statement to
be inaccurate, to say the least.
Since new doctrines, which constitute new law, are espoused in the Decision, these should
be subject to the general rule under the Civil Code regarding prospective application:
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.
Moreover, lex prospicit, non respicit—the law looks forward not backward. If decisions that
repeal the rulings in older ones are given only prospective application,25 why should not
doctrines that resolve questions of first impression be treated in like manner? Therefore, it is
my considered view that, if the amended JVA should be nullified, the ruling must be given
prospective effect and all vested rights under contracts executed during the validity thereof
must be respected.
 The foregoing are basic principles in civil law which have been brushed aside in the wake
of this Court’s haste to stamp out what it deems unjust. Zeal in the pursuit of justice is
admirable, to say the least, especially amid the cynicism and pessimism that has prevailed
among our people in recent times. However, in our pursuit of righteousness, we must not lose
sight of our duty to dispense justice with an even hand, always mindful that where we tread,
the rights of others may be trampled upon underfoot.
Therefore, I vote to GRANT the Motion for Reconsideration and to DENY the petition for
lack of merit.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
It is after deep introspection that I am constrained to dissent from the denial by the majority
of the motions for reconsideration filed by respondents PEA and AMARI.
Chief Justice Charles Evans Hughes of the United States Supreme Court stated that a dissent
is of value because it is “an appeal to the brooding spirit of the law, to the intelligence of a
future day, when a later decision may possibly correct the error into which the dissenting
judge believes the court to have been betrayed.”1
While I joined in the initial grant of the petition, I realized, however, that the tenor of our
interpretation of the Constitutional prohibition on the acquisition of reclaimed lands by private
corporations is so absolute and circumscribed as to defeat the basic objectives of its provisions
on “The National Economy and Patrimony.”2
The Constitution is a flexible and dynamic document. It must be interpreted to meet its
objectives under the complex necessities of the changing times. Provisions intended to
promote social and economic goals are capable of varying interpretations. My view happens to
differ from that of the majority. I am confident however, that the demands of the nation’s
economy and the needs of the majority of our people will bring the majority Decision and this
Dissenting Opinion to a common understanding. Always, the goals of the Constitution must be
upheld, not defeated nor diminished.
Infrastructure building is a function of the government and ideally should be financed
exclusively by public funds. However, present circumstances show that this cannot be done.
Thus, private corporations are encouraged to invest in income generating national
construction ventures.
Investments on the scale of reclamation projects entail huge amounts of money. It is a
reality that only private corporations can raise such amounts. In the process, they assist this
country in its economic development. Consequently, our government should not take arbitrary
action against these corporate developers. Obviously, the courts play a key role in all disputes
arising in this area of national development.
This is the background behind my second hard look at the issues and my resulting
determination to dissent.
The basic issue before us is whether a private corporation, such as respondent AMARI, can
acquire reclaimed lands.
The Decision being challenged invokes the Regalian doctrine that the State owns all lands
and waters of the public domain. The doctrine is the foundation of the principle of land
ownership that all lands that have not been acquired by purchase or grant from the
Government belong to the public domain.3 Property of public dominion is that devoted to
public use such as roads, canals, rivers, torrents, ports and bridges constructed by the State,
riverbanks, shores, roadsteads and that of a similar character.4 Those which belong to the
State, not devoted to public use, and are intended for some public service or for the
development of the national wealth, are also classified as property of public dominion.5 All
other property of the State which is not of public dominion is patrimonial.6 Also, property of
public dominion, when no longer intended for public use or public service, shall form part of
the patrimonial property of the State.7
In our Decision sought to be reconsidered,8 we held that the following laws, among
others, are applicable to the particular reclamation project involved in this case: the Spanish
Law of Waters of 1866, the Civil Code of 1889, Act No. 1654 enacted by the Philippine
Commission in 1907, Act No. 2874 (the Public Land Act of 1919), and Commonwealth Act No.
141 of the Philippine National Assembly, also known as the Public Land Act of 1936.
Certain dictums are emphasized. Reclaimed lands of the government may be leased but not
sold to private corporations and private individuals. The government retains title to lands it
reclaims. Only lands which have been officially delimited or classified as alienable shall be
declared open to disposition or concession.
Applying these laws and the Constitution, we then concluded that the submerged areas of
Manila Bay are inalienable natural resources of the public domain, outside the commerce of
man. They have to be classified by law as alienable or disposable agricultural lands of the
public domain and have to be declared open to disposition. However, there can be no
classification and declaration of their alienable or disposable nature until after PEA has
reclaimed these submerged areas. Even after the submerged areas have been reclaimed from
the sea and classified as alienable or disposable, private corporations such as respondent
AMARI, are disqualified from acquiring the reclaimed land in view of Section 3, Article XII of
the Constitution, quoted as follows:
“Lands of the Public domain are classified into agricultural, forest or timbre, minerals lands,
and national parks. Agricultural lands of the public domain may be further classified by law
according to the uses to which they may be devoted. Alienable lands of the public domain
shall be limited to agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease, for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and not to exceed one thousand
hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof by purchase, homestead, or grant.
 “Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the size
of lands of the public domain which may be acquired, developed, held, or leased and the
conditions therefor.”
I dissent from the foregoing conclusions which are based on general laws mainly of ancient
vintage. Reclaimed lands, especially those under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP), are governed by PD 10849 and PD 108510 enacted in 1976
and 1977, respectively, or more than half a century after the enactment of the Public Lands
Acts of 1919 and 1936.
PD 1084 and PD 1085 provide:
PD 1084—
“Section 4. Purposes.—The Authority is hereby created for the following purposes:
. a.To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;
. b.To develop, improve, acquire, administer, deal in, subdivide, dispose, lease
and sell any and all kinds of lands,  building, estates and other forms of real
property, owned, managed, controlled and/or operated by the government;
. c.To provide for, operate or administer such services as may be necessary for the
efficient, economical and beneficial utilization of the above properties. (Emphasis
ours)
PD 1085—
“The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Conduction and Development Corporation of
the Philippines dated November 20, 1973 and/or any other contract or reclamation covering
the same area is hereby transferred, conveyed and assigned to the ownership and
administration of the Public Estates Authority established pursuant to P.D. No. 1084; Provided,
however, that the rights and interest of the Construction and Development Corporation of the
Philippines pursuant to the aforesaid contract shall be recognized respected.
x x x      x x x      x x x
“Special land patent/patents shall be issued by the Secretary of Natural Resources in favor
of the Public Estates Authority without prejudice to the subsequent transfer to the contractor
or his assignees of such portion or portions of the land reclaimed or to be reclaimed  as
provided for in the above-mentioned contract. On the basis of such patents, the Land
Registration Commission shall issue the corresponding certificates of title.” (Emphasis Ours)
Pursuant to the above provisions, PEA is mandated inter alia to reclaim land, including
foreshore and submerged areas, or to acquire reclaimed land. Likewise, PEA has the power to
sell any and all kinds of lands and other forms of real property owned and managed by the
government. Significantly, PEA is authorized to transfer to the contractor or its assignees
portion or portions of the land reclaimed or to be reclaimed.
It is a fundamental rule that if two or more laws govern the same subject, every effort to
reconcile and harmonize them must be taken. Interpretare et concordare legibus est optimus
interpretandi. Statutes must be so construed and harmonized with other statutes as to form a
uniform system of jurisprudence.11 However, if several laws cannot be harmonized, the earlier
statute must yield to the later enactment. The later law is the latest expression of the
legislative will.12 Therefore, it is PD 1084 and PD 1085 which apply to the issues in this case.
Moreover, the laws cited in our Decision are general laws which apply equally to all the
individuals or entities embraced by their provisions.13 The provisions refer to public lands in
general.
Upon the other hand, PD 1084 and PD 1085 are special laws which relate to particular
economic activities, specific kinds of land and a particular group of persons.14 Their coverage
is specific and limited. More specifically, these special laws apply to land reclaimed from
Manila Bay by private corporations. If harmonization and giving effect to the provisions of
both sets of laws is not possible, the special law should be made to prevail over the general
law, as it evinces the legislative intent more clearly.  The special law is a specific enactment of
the legislature which constitutes an exception to the general statute.15
Our Decision cites the constitutional provision banning private corporations from acquiring
any kind of alienable land of the public domain.16
Under the Constitution, lands of the public domain are classified into agricultural, forest or
timber, mineral lands, and natural parks.17 Land reclaimed from the sea cannot fall under any
of the last three categories because it is neither forest nor timber, mineral, nor park land. It is,
therefore, agricultural land.18 Agricultural land of the public domain may be
alienated.19 However, the Constitution states that private corporations may not hold such
alienable land except by lease. It follows that AMARI, being a private corporation, cannot hold
any reclaimed area. But let it be made clear that PD 1084 transfers the public agricultural land
formed by reclamation to the “ownership and administration” of PEA, a government owned
corporation. The transfer is not to AMARI, a private corporation, hence, the constitutional
prohibition does not apply. Corollarily, under PD 1085, PEA is empowered to subsequently
transfer to the contractor portion or portions of the land reclaimed to be reclaimed.
Does the Constitution restrain PEA from effecting such transfer to a private corporation?
Under Article 421 of the Civil Code, all property of the State which is not of public dominion is
patrimonial. PEA does not exercise sovereign functions of government.  It handles business
activities for the government. Thus, the property in its hands, not being of public dominion, is
held in a patrimonial capacity. PEA, therefore, may sell this property to private corporations
without violating the Constitution. It is relevant to state that there is no constitutional obstacle
to the sale of real estate held by government owned corporations, like the National
Development Corporation, the Philippine National Railways, the National Power Corporation,
etc. to private corporations. Similarly, why should PEA, being a government owned Indeed, it is hypothetical to identify exactly when the right to information begins and what
corporation, be prohibited to sell its reclaimed lands to private corporations? matters may be disclosed during negotiations for the reclamation of land from the sea.

I take exception to the view of the majority that after the enactment of the 1935 Unfortunately for private respondent, its name, “AMARI” happens to retain lingering
Constitution, Section 58 of Act 2874 continues to be applicable up to the present and that the unpleasant connotations. The phrase “grandmother of all scams,” arising from the Senate
long established state policy is to retain for the government title and ownership of government investigation of the original contract, has not been completely erased from the public mind.
reclaimed land. This simply is an inaccurate statement of current government policy. When a However, any suspicion of anything corrupt or improper during the initial negotiations which
government decides to reclaim the land, such as the area comprising and surrounding the led to the award of the reclamation to AMARI are completely irrelevant to this petition. It
Cultural Center Complex and other parts of Manila Bay, it reserves title only to the roads, bears stressing that the Decision and this Dissenting Opinion center exclusively on questions
bridges, and spaces allotted for government buildings. The rest is designed, as early as the of constitutionality and legality earlier discussed.
drawing board stage, for sale and use as commercial, industrial, entertainment or services-
oriented ventures. The idea of selling lots and earning money for the government is the To recapitulate, it is my opinion that there is nothing in the Constitution or applicable
motive why the reclamation was planned and implemented in the first place. statutes which impedes the exercise by PEA of its right to sell or otherwise dispose of its
reclaimed land to private corporations, especially where, as here, the purpose is to
May I point out that there are other planned or on-going reclamation projects in the compensate respondent AMARI, the corporate developer, for its expenses incurred in
Philippines. The majority opinion does not only strike down the Joint Venture Agreement (JVA) reclaiming the subject areas. Pursuant to PD 1084 and PD 1085, PEA can transfer to the
between AMARI and PEA but will also adversely affect or nullify all other reclamation contractor, such as AMARI, such portion or portions of the land reclaimed or to be reclaimed.
agreements in the country. I doubt if government financial institutions, like the Development
Bank of the Philippines, the Government Service Insurance System, the Social Security System WHEREFORE, I vote to GRANT the motions for reconsideration and to DISMISS the
or other agencies, would risk a major portion of their funds in a problem-filled and highly petition for lack of merit.
speculative venture, like reclamation of land still submerged under the sea. Likewise, there
certainly are no private individuals, like business tycoons and similar entrepreneurs, who
Motions for reconsideration denied with finality.
would undertake a major reclamation project without using the corporate device to raise and
disburse funds and to recover the amounts expended with a certain margin of profits. And
why should corporations part with their money if there is no assurance of payment, such as a Notes.—The reclamation of foreshore and submerged lands for the purpose of developing
share in the land reclaimed or to be reclaimed? It would be most unfair and a violation of the reclaimed area into an industrial and trading center with a modern harbor and port
procedural and substantive rights20 to encourage investors, both Filipino and foreign, to form facilities for both domestic and international commerce is an infrastructure project as
corporations, build infrastructures, spend money and efforts only to be told that the invitation contemplated under PD 1818. (Garcia vs. Burgos, 291 SCRA 546 [1998])
to invest is unconstitutional or illegal with absolutely no indication of how they could be
compensated for their work. No one, not even the government, shall unjustly enrich one-self/itself at the expense of
another. (Republic vs. Court of Appeals, 299 SCRA 199 [1998])
It has to be stressed that the petition does not actually assail the validity of the JVA
——o0o——
between PEA and AMARI. The petition mainly seeks to compel PEA to disclose all facts on the
then on-going negotiations with respondent AMARI with respect to the reclamation of portions
of Manila Bay. Petitioner relies on the Constitutional provision that the right of the people to
information on matters of public concern shall be recognized and that access to papers
pertaining to official transactions shall be afforded the citizen.21 I believe that PEA does not
have to reveal what was going on from the very start and during the negotiations with a
private party. As long as the parties have the legal capacity to enter into a valid contract over
an appropriate subject matter, they do not have to make public, especially to competitors, the
initial bargaining, the give-and-take arguments, the mutual concessions, the moving from one
position to another, and other preliminary steps leading to the drafting and execution of the
contract. As in negotiations leading to a treaty or international agreement, whether sovereign
or commercial in nature, a certain amount of secrecy is not only permissible but compelling.

At any rate, recent developments appear to have mooted this issue, and anything in the
Decision which apparently approves publicity during on-going negotiations without pinpointing
the stage where the right to information appears is obiter. The motions for reconsideration all
treat the JVA as a done thing, something already concrete, if not finalized.
 G.R. No. 170516. July 16, 2008.* instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. Respondents
deny that petitioners have such standing to sue. “[I]n the interest of a speedy and definitive
AKBAYAN CITIZENS ACTION PARTY (“AKBAYAN”), PAMBANSANG KATIPUNAN NG
resolution of the substantive issues raised,” however, respondents consider it sufficient to cite
MGA SAMAHAN SA KANAYUNAN (“PKSK”), ALLIANCE OF PROGRESSIVE LABOR
a portion of the ruling in Pimentel v. Office of Executive Secretary, 462 SCRA 622 (2005)
(“APL”), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE
which emphasizes the need for a “personal stake in the outcome of the controversy” on
BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TAÑADA III, CONG. MARIO JOYO
questions of standing. In a petition anchored upon the right of the people to information on
AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-
matters of public concern, which is a public right by its very nature, petitioners need not show
BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, petitioners, vs. THOMAS
that they have any legal or special interest in the result, it being sufficient to show that they
G. AQUINO, in his capacity as Undersecretary of the Department of Trade and
are citizens and, therefore, part of the general public which possesses the right. As the
Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating
present petition is anchored on the right to information and petitioners are all suing in their
Committee (PCC) for the Japan-Philippines Economic Partnership Agreement,
capacity as citizens and groups of citizens including petitioners-members of the House of
EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of
Representatives who additionally are suing in their capacity as such, the standing of
Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in
petitioners to file the present suit is grounded in jurisprudence.
his capacity as Chairman of the Tariff Commission and lead negotiator for
Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO,
Same; Same; Same; Moot and Academic Issues; A petition seeking the disclosure of the
in her capacity as Assistant Director-General of the National Economic
full text of a bilateral agreement is not entirely moot where the petitioners also seek to obtain
Development Authority (NEDA) and lead negotiator for Trade in Services and
the offers in the course of the negotiation. —The text of the JPEPA having then been made
Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service
accessible to the public, the petition has become moot and academic to the extent that it
Officer I, Office of the Undersecretary for International Economic Relations of the
seeks the disclosure of the “full text” thereof. The petition is not entirely moot, however,
DFA and lead negotiator for the General and Final Provisions of the JPEPA,
because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine
ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and
and Japanese offers in the course of the negotiations.
lead negotiator for Trade in Goods (General Rules) of the JPEPA, RAQUEL
ECHAGUE, in her capacity as lead negotiator for Rules of Origin of the JPEPA,
Same; Same; To be covered by the right to information, the information sought must
GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau
meet the threshold requirement that it be a matter of public concern; From the nature of the
of Customs and lead negotiator for Customs Procedures and Paperless Trading of
Japan-Philippines Economic Partnership Agreement (JPEPA) as an international trade
the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the
agreement, it is evident that the Philippine and Japanese offers submitted during the
Bureau of Local Employment of the Department of Labor and Employment (DOLE)
negotiations towards its execution are matters of public concern. —To be covered by the right
and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE
to information, the information sought must meet the threshold requirement that it be a
GUZMAN, in his capacity as Director of the Board of Investments and lead
matter of public concern. Apropos  is the teaching of Legaspi v. Civil Service Commission , 150
negotiator for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as
SCRA 530 (1987): In determining whether or not a particular information is of public concern
Director for the Bureau of Product Standards of the DTI and lead negotiator for
there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that
Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead
eludes exact definition. Both terms embrace a broad spectrum of subjects which the public
negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his
may want to know, either because these directly affect their lives, or simply because such
capacity as Officer-in-Charge of the Government Procurement Policy Board
matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the
Technical Support Office, the government agency that is leading the negotiations
courts to determine on a case by case basis whether the matter at issue is of interest or
on Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as
importance, as it relates to or affects the public . (Italics supplied) From the nature of the
Chief State Counsel of the Department of Justice (DOJ) and lead negotiator for
JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
Dispute Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his capacity as
offers submitted during the negotiations towards its execution are matters of public concern.
lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R.
This, respondents do not dispute. They only claim that diplomatic negotiations are covered by
ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his
the doctrine of executive privilege, thus constituting an exception to the right to information
capacity as Secretary of the DFA,** respondents.
and the policy of full public disclosure.

Right to Information; Japan-Philippines Economic Partnership Agreement (JPEPA);
Judicial Review; Parties; Locus Standi; In a petition anchored upon the right of the people to
information on matters of public concern, which is a public right by its very nature, petitioners
need not show that they have any legal or special interest in the result, it being sufficient to
show that they are citizens and, therefore, part of the general public which possesses the
right.—For a petition for mandamus such as the one at bar to be given due course, it must be
Same; Same; Diplomatic Negotiations; Privileged Communications; The privileged
character of diplomatic negotiations has been recognized in this jurisdiction. —The privileged
character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG, 299 SCRA 744 (1998),
held that “information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest.” Even earlier, the same privilege was upheld in People’s Movement for Press Freedom
(PMPF) v. Manglapus  (G.R. No. 84642, Resolution of the Court En Banc dated September 13,
1988), wherein the Court discussed the reasons for the privilege in more precise terms.
Same; Same; Same; Same; While the final text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) may not be kept perpetually confidential—since there should
be “ample opportunity for discussion before [a treaty] is approved”—the offers exchanged by
the parties during the negotiations continue to be privileged even after the JPEPA is
published; It is reasonable to conclude that the Japanese representatives submitted their
offers with the understanding that “historic confidentiality” would govern the same. Disclosing
these offers could impair the ability of the Philippines to deal not only with Japan but with
other foreign governments in future negotiations.—Applying the principles adopted in PMPF v.
Manglapus (G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988), it is
clear that while the final text of the JPEPA may not be kept perpetually confidential—since
there should be “ample opportunity for discussion before [a treaty] is approved”—
the offers exchanged by the parties during the negotiations continue to be privileged even
after the JPEPA is published. It is reasonable to conclude that the Japanese representatives
submitted their offers with the understanding that “ historic confidentiality” would govern the
same. Disclosing these offers could impair the ability of the Philippines to deal not only with
Japan but with other foreign governments in future negotiations. A ruling that Philippine offers
in treaty negotiations should now be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on
first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be
willing to grant concessions in an area of lesser importance in order to obtain more favorable
terms in an area of greater national interest.
Same; Same; Same; Same; By hampering the ability of our representatives to
compromise, we may be jeopardizing higher national goals for the sake of securing less critical
ones; The privileged nature of diplomatic negotiations is only presumptive. —Indeed, by
hampering the ability of our representatives to compromise, we may be jeopardizing higher
national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore,
are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no
exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita (488 SCRA 1 [2006])  holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances. Only after a consideration of the
context in which the claim is made may it be determined if there is a public interest that calls
for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Same; Same; Same; Same; Executive Privilege; Presidential Communications Privilege;
Presidential communications are privileged whether they involve matters of national security.
—While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One example
is the “informer’s privilege,” or the privilege of the Government not to disclose the identity of a
person or persons who furnish information of violations of law to officers charged with the
enforcement of that law. The suspect involved need not be so notorious as to be a threat to
national security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only would this
be contrary to long-standing practice. It would also be highly prejudicial to law enforcement
efforts in general. Also illustrative is the privilege accorded to presidential communications ,
which are presumed privileged without distinguishing between those which involve matters of
national security and those which do not, the rationale for the privilege being that x x x
[a] frank exchange of exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the independence of decision-
making of those tasked to exercise Presidential, Legislative and Judicial power. x x x
(Emphasis supplied) In the same way that the privilege for judicial deliberations does not
depend on the nature of the case deliberated upon, so presidential communications are
privileged whether they involve matters of national security. It bears emphasis, however, that
the privilege accorded to presidential communications is not absolute, one significant
qualification being that “the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees
from investigations by the proper governmental institutions into possible criminal
wrongdoing.” This qualification applies whether the privilege is being invoked in the context
of a judicial trial or a congressional investigation conducted in aid of legislation.
Same; Same; Same; Same; Same; Same; Deliberative Process Privilege; Closely related
to the “presidential communications” privilege is the deliberative process privilege recognized
in the United States, which privilege covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. —Closely related to the “presidential communications”
privilege is the deliberative process privilege recognized in the United States. As discussed
by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co., 421 US 150, deliberative process
covers documents reflecting advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are formulated. Notably, the
privileged status of such documents rests, not on the need to protect national
security but, on the “obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news,” the objective
of the privilege being to enhance the quality of agency decisions. The diplomatic
negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the
confidential character of diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
Same; Same; Same; Same; Same; Same; Clearly, the privilege accorded to diplomatic
negotiations follows as a logical consequence from the privileged character of the deliberative
process.—The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski
v. Department of the Treasury, 545 F.Supp. 615, May 28, 1982,  enlightens on the close
relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in
that case sought access to notes taken by a member of the U.S. negotiating team during the
U.S.-French tax treaty negotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft language
agreed on, and articles which needed to be amended. Upholding the confidentiality of those
notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty
represent a true example of a deliberative process. Much give-and-take must occur for the
countries to reach an accord.  A description of the negotiations at any one point would not
provide an onlooker a summary of the discussions which could later be relied on as law. It
would not be “working law” as the points discussed and positions agreed on would be subject
to change at any date until the treaty was signed by the President and ratified by the
Senate. The policies behind the deliberative process privilege support non-
disclosure. Much harm could accrue to the negotiations process if these notes were
revealed. Exposure of the pre-agreement positions of the French negotiators might
well offend foreign governments  and would lead to less candor by the U.S. in
recording the events of the negotiations process. As several months pass in between
negotiations, this lack of record could hinder readily the U.S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies should be changed,
public confusion would result easily. Finally, releasing these snapshot views of the
negotiations would be comparable to releasing drafts of the treaty , particularly when
the notes state the tentative provisions and language agreed on. As drafts of regulations
typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
accorded the same protection. (Emphasis and italics supplied) Clearly, the privilege
accorded to diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process.
Same; Same; Same; Same; Same; Same; Since, in this jurisdiction, there is no
counterpart of the U.S. Freedom of  Information Act, nor is there any statutory requirement
similar to Freedom of  Information Act (FOIA) Exemption 5 in particular, Philippine courts,
when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly
on the issue of whether the privilege being claimed is indeed supported by public policy,
without having to consider if these negotiations fulfill a formal requirement of being “inter-
agency”; The Court sees no reason to modify, much less abandon, the doctrine in People’s
Movement for Press Freedom v. Manglapus, G.R. No. 84642, 13 September 1988. —In this
jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on
the issue of whether the privilege being claimed is indeed supported by public policy,
without having to consider—as the CIEL court did—if these negotiations fulfill a formal
requirement of being “inter-agency.” Important though that requirement may be in the
context of domestic negotiations, it need not be accorded the same significance when dealing
with international negotiations. There being a public policy supporting a privilege for
diplomatic negotiations for the reasons explained above, the Court sees no reason to modify,
much less abandon, the doctrine in PMPF v. Manglapus (G.R. No. 84642, 13 September 1988).
Same; Same; Same; Same; Same; Same; The privileged character accorded to
diplomatic negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances—clearly, the privilege for
diplomatic negotiations may be invoked not only against citizens’ demands for information,
but also in the context of legislative investigations; It is the President alone who negotiates
treaties, and not even the Senate or the House of Representatives, unless asked, may intrude
upon that process.—While indeed the petitioners in People’s Movement for Press Freedom
(PMPF) v. Manglapus  (G.R. No. 84642, 13 September 1988), consisted only of members of the
mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing
on a controversy such as the present, where the demand for information has come from
members of Congress, not only from private citizens. The privileged character accorded to
diplomatic negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances . The probability  of the claim
succeeding in the new context might differ, but to say that the privilege, as such, has no
validity at all in that context is another matter altogether. The Court’s statement in Senate v.
Ermita, 488 SCRA 1 (2006), that “presidential refusals to furnish information may be actuated
by any of at least three distinct kinds of considerations [state secrets privilege, informer’s
privilege, and a generic privilege for internal deliberations], and may be asserted, with
differing degrees of success, in the context of either judicial or legislative investigations,”
implies that a privilege, once recognized, may be invoked under different procedural settings.
That this principle holds true particularly with respect to diplomatic negotiations may be
inferred from PMPF v. Manglapus, itself, where the Court held that it is the President
alone who negotiates treaties, and not even the Senate or the House of
Representatives,  unless asked, may intrude upon that process. Clearly, the privilege for
diplomatic negotiations may be invoked not only against citizens’ demands for information, but
also in the context of legislative investigations.
Same; Same; Same; Same; “Incompatibility Hypothesis”; Without delving into
petitioners’ assertions respecting the “incompatibility hypothesis,” the Court notes that the
ruling in People’s Movement for Press Freedom (PMPF) v. Manglapus is grounded more on the
nature of treaty negotiations as such than on a particular socio-political school of thought. —
As third and last point raised against the application of PMPF v. Manglapus, in this case ,
petitioners proffer that “the socio-political and historical contexts of the two cases are worlds
apart.” They claim that the constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus  came about, particularly the school of thought that the requirements of foreign
policy and the ideals of transparency were incompatible with each other or the “incompatibility
hypothesis,” while valid when international relations were still governed by power, politics and
wars, are no longer so in this age of international cooperation. Without delving into
petitioners’ assertions respecting the “incompatibility hypothesis,” the Court notes that the
ruling in PMPF v. Manglapus  is grounded more on the nature of treaty negotiations as such
than on a particular socio-political school of thought. If petitioners are suggesting that the
nature of treaty negotiations have so changed that “[a]n ill-timed speech by one of the parties
or a frank declaration of the concession which are exacted or offered on both sides” no
longer “lead[s] to widespread propaganda to block the negotiations,” or that parties in treaty
negotiations no longer expect their communications to be governed by historic confidentiality,
the burden is on them to substantiate the same. This petitioners failed to discharge.
Same; Same; Same; Same; The duty to disclose “definite propositions of the
government” does not apply to diplomatic negotiations—even definite propositions of the
government may not be disclosed if they fall under “recognized exceptions”; The privilege for
diplomatic negotiations is clearly among the recognized exceptions.—The following statement
in Chavez v. PEA, 384 SCRA 152 (2002), however, suffices to show that the doctrine in both
that case and Chavez v. PCGG, 299 SCRA 744 (1998), with regard to the duty to disclose
“definite propositions of the government” does not apply to diplomatic negotiations: We rule,
therefore, that the constitutional right to information includes official information on on-going
negotiations  before a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions  like
privileged information, military and diplomatic secrets and similar matters
affecting national security and public order. x x x (Emphasis and italics supplied) It
follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under “recognized exceptions.” The privilege for diplomatic negotiations is
clearly among the recognized exceptions, for the footnote to the immediately quoted ruling
cites PMPF v. Manglapus  itself as an authority.
Same; Same; Same; Same; There are at least two kinds of public interest that must be
taken into account—one, the presumed public interest in favor of keeping the subject
information confidential, and the other is the public interest in favor of disclosure .—To clarify,
there are at least two kinds of public interest that must be taken into account. One is the
presumed public interest in favor of keeping the subject information confidential, which is the
reason for the privilege in the first place, and the other is the public interest in favor of
disclosure, the existence of which must be shown by the party asking for information.
Same; Same; Same; Same; “Sufficient Showing of Need” Standard; The standard to be
employed in determining whether there is a sufficient public interest in favor of disclosure is
the strong and “sufficient showing of need.”—The criteria to be employed in determining
whether there is a sufficient public interest in favor of disclosure may be gathered from cases
such as U.S. v. Nixon, 418 U.S. 683 (1974) Senate Select Committee on Presidential Campaign
Activities v. Nixon,  498 F.2d 725, 162 U.S.App.D.C. 183, and In re Sealed Case (121 F.3d 729,
326 U.S.App.D.C. 276 [1997]).  Petitioners have failed to present the strong and “sufficient
showing of need” referred to in the immediately cited cases. The arguments they proffer to
establish their entitlement to the subject documents fall short of this standard.
Same; Same; Same; Same; The text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) having been published, petitioners have failed to convince this Court that
they will not be able to meaningfully exercise their right to participate in decision-making
unless the initial offers are also published. —Whether it can accurately be said that the Filipino
people were not involved in the JPEPA negotiations is a question of fact which this Court need
not resolve. Suffice it to state that respondents had presented documents purporting to show
that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these “alleged consultations” as “woefully selective and inadequate.” AT ALL EVENTS, since it
is not disputed that the offers exchanged by the Philippine and Japanese representatives have
not been disclosed to the public, the Court shall pass upon the issue of whether access to the
documents bearing on them is, as petitioners claim, essential to their right to participate in
decision-making. The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is
still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines.
Were the Senate to concur with the validity of the JPEPA at this moment, there has already
been, in the words of PMPF v. Manglapus, “ample opportunity for discussion before [the
treaty] is approved.” The text of the JPEPA having been published, petitioners have failed to
convince this Court that they will not be able to meaningfully exercise their right to participate
in decision-making unless the initial offers are also published.
Separation of Powers; Presidency; Congress; Tariff Powers; Diplomatic Power; While the
power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by
the President only by delegation of that body, it has long been recognized that the power to
enter into treaties is vested directly and exclusively in the President, subject only to the
concurrence of at least two-thirds of all the Members of the Senate for the validity of the
treaty; Congress, while possessing vast legislative powers, may not interfere in the field of
treaty negotiations.—While the power then to fix tariff rates and other taxes clearly belongs to
Congress, and is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of the
Senate for the validity of the treaty. In this light, the authority of the President to enter into
trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an
acknowledgment of a power already inherent in its office. It may not be used as basis to hold
the President or its representatives accountable to Congress for the conduct of treaty
negotiations. This is not to say, of course, that the President’s power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President must still ensure
that all treaties will substantively conform to all the relevant provisions of the Constitution. It
follows from the above discussion that Congress, while possessing vast legislative powers,
may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for
Senate concurrence, such pertains only to the validity of the treaty under consideration, not to
the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a
whole that has been given the authority to concur as a means of checking the treaty-making
power of the President, but only the Senate. Thus, as in the case of petitioners suing in their
capacity as private citizens, petitioners-members of the House of Representatives fail to
present a “sufficient showing of need”  that the information sought is critical to the
performance of the functions of Congress, functions that do not include treaty-negotiation.
Same; Same; Same; Executive Privilege; Failure to claim the privilege during the House
Committee hearings may not be construed as a waiver thereof by the Executive branch where
what was received from the House Committee were mere requests for information, which
requests are not compulsory processes—so long as Congress itself finds no cause to enforce
such power, there is no strict necessity to assert the privilege.—Respondents’ failure to claim
the privilege during the House Committee hearings may not, however, be construed as a
waiver thereof by the Executive branch. As the immediately preceding paragraph indicates,
what respondents received from the House Committee and petitioner-Congressman Aguja
were mere requests for information. And as priorly stated, the House Committee itself
refrained from pursuing its earlier resolution to issue a subpoena duces tecum  on account of
then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman
Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to
refrain from issuing subpoenas to executive officials—out of respect for their office—until
resort to it becomes necessary, the fact remains that such requests are not a compulsory pro-
cess. Being mere requests, they do not strictly call for an assertion of executive privilege. The
privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no
cause to enforce such power, there is no strict necessity to assert the privilege. In this light,
respondents’ failure to invoke the privilege during the House Committee investigations did not
amount to a waiver thereof.
Same; Same; Same; Same; The claim of executive privilege should be invoked by the
President or through the Executive Secretary “by order of the President”; The requirement
that the phrase “by order of the President” should accompany the Executive Secretary’s claim
of privilege is a new rule laid down for the first time in Senate v. Ermita, 488 SCRA 1 (2006),
which was not yet final and executory at the time respondents filed their Comment to the
petition.—The Court observes, however, that the claim of privilege appearing in respondents’
Comment to this petition fails to satisfy in full the requirement laid down in Senate v.
Ermita  that the claim should be invoked by the President or through the Executive Secretary
“by order of the President.” Respondents’ claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case. The assertion of
executive privilege by the Executive Secretary, who is one of the respondents herein, without
him adding the phrase “by order of the President,” shall be considered as partially complying
with the requirement laid down in Senate v. Ermita. The requirement that the phrase “by
order of the President” should accompany the Executive Secretary’s claim of privilege is a new
rule laid down for the first time in Senate v. Ermita, 488 SCRA 1 (2006),which was not yet
final and executory at the time respondents filed their Comment to the petition. A strict
application of this requirement would thus be unwarranted in this case.
Presidency; Executive Privilege; Judicial Review; The Court in its endeavor to guard
against the abuse of executive privilege, should be careful not to veer towards the opposite
extreme, to the point that it would strike down as invalid even a legitimate exercise thereof .—
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our
people’s right to information against any abuse of executive privilege. It is a zeal that We fully
share. The Court, however, in its endeavor to guard against the abuse of executive privilege,
should be careful not to veer towards the opposite extreme, to the point that it would strike
down as invalid even a legitimate exercise thereof.
Same; Diplomatic Power; Separation of Powers; The Philippine Constitution, unlike that
of the U.S., does not grant the Senate the power to advise the Executive in the making of
treaties, but only vests in that body the power to concur in the validity of the treaty after
negotiations have been concluded.—What the U.S. Constitution sought to prevent and aimed
to achieve in defining the treaty-making power of the President, which our Constitution
similarly defines, may be gathered from Hamilton’s explanation of why the U.S. Constitution
excludes the House of Representatives from the treaty-making process: x x x The fluctuating,
and taking its future increase into account, the multitudinous composition of that body, forbid
us to expect in it those qualities which are essential to the proper execution of such a trust.
Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence
to the same views; a nice and uniform sensibility to national character,
decision, secrecy and dispatch; are incompatible with a body so variable and so numerous.
The very complication of the business by introducing a necessity of the concurrence of so
many different bodies, would of itself afford a solid objection. The greater frequency of the
calls upon the house of representatives, and the greater length of time which it would often
be necessary to keep them together when convened, to obtain their sanction in the
progressive stages of a treaty, would be source of so great inconvenience and expense, as
alone ought to condemn the project. These considerations a fortiori  apply in this jurisdiction,
since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the
power to advise the Executive in the making of treaties, but only vests in that body the power
to concur in the validity of the treaty after negotiations have been concluded. Much less,
therefore, should it be inferred that the House of Representatives has this power.
Same; Same; Same; Courts; Judicial deliberations do not lose their confidential character
once a decision has been promulgated by the courts.—The dissent also asserts that
respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA
documents now that negotiations have been concluded, since their reasons for nondisclosure
cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply
only for as long as the negotiations were still pending; In their Comment, respondents
contend that “the negotiations of the representatives of the Philippines as well as of Japan
must be allowed to explore alternatives in the course of the negotiations in the same manner
as judicial deliberations and working drafts of opinions are accorded strict
confidentiality.” That respondents liken the documents involved in the JPEPA
negotiations to judicial deliberations and working drafts of opinions evinces, by
itself, that they were claiming confidentiality not only until, but even after, the
conclusion of the negotiations. Judicial deliberations do not lose their confidential
character once a decision has been promulgated by the courts. The same holds true with
respect to working drafts of opinions, which are comparable to intra-agency
recommendations. Such intra-agency recommendations are privileged even after the position
under consideration by the agency has developed into a definite proposition, hence, the rule in
this jurisdiction that agencies have the duty to disclose only definite propositions, and not the
inter-agency and intra-agency communications during the stage when common assertions are
still being formulated.
Same; Same; Same; Executive Privilege; Given that respondents have claimed executive
privilege, petitioner-members of the House of Representatives should have, at least, shown
how its lack of access to the Philippine and Japanese offers would hinder the intelligent
crafting of legislation—mere assertion that the Japan-Philippines Economic Partnership
Agreement (JPEPA) covers a subject matter over which Congress has the power to legislate
would not suffice.—The House Committee that initiated the investigations on the JPEPA did
not pursue its earlier intention to subpoena the documents. This strongly undermines the
assertion that access to the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what the
Senate did in Senate v. Ermita,  filed the present petition as a legislative body, rather than
leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such
acts would have served as strong indicia that Congress itself finds the subject information to
be critical to its legislative functions. Further, given that respondents have claimed executive
privilege, petitioner-members of the House of Representatives should have, at least,
shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent
crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice.  As Senate Select Committee v. Nixon,
162 U.S. App.D.C. 183, 189, held, the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of the function in the
performance of which the material was sought, but also the degree to which the material was
necessary to its fulfillment. This petitioners failed to do.
Same; Same; Same; Burden of Proof; While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and certain reasons
for upholding its claim of privilege, once the Executive is able to show that the documents
being sought are covered by a recognized privilege, the burden shifts to the party seeking
information to overcome the privilege by a strong showing of need.—In asserting that the
balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends
that the Executive has failed to show how disclosing them after the conclusion of negotiations
would impair the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of transparency, the
burden is initially on the Executive to provide precise and certain reasons for upholding its
claim of privilege, once the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party seeking information to
overcome the privilege by a strong showing of need.
 Same; Same; Same; When the Court in Senate v. Ermita, 488 SCRA 1 (2006), limited
the power of invoking the privilege to the President alone, it was laying down a new rule for
which there is no counterpart even in the United States from which the concept of executive
privilege was adopted; The Court’s recognition that the Executive Secretary also bears the
power to invoke the privilege, provided he does so “by order of the President,” is meant to
avoid laying down too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege, and it is with the same spirit that the Court should not be
overly strict with applying the same rule in this peculiar instance, where the claim of executive
privilege occurred before the judgment in Senate v. Ermita became final. —When the Court
in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was
laying down a new rule for which there is no counterpart even in the United States from which
the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch,
Inc. v. Department of Justice, 365 F.3d 1108, 361 U.S. App.D.C. 183 (2004), citing In re
Sealed Case (121 F.3d 729, 326 U.S. App.D.C. 276 [1997]), “the issue of whether a President
must personally invoke the [presidential communications] privilege remains an open
question.” U.S. v. Reynolds, 345 U.S. 1, 73 S.Ct. 528 (1953), on the other hand, held that
“[t]here must be a formal claim of privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by that officer.” The rule was thus
laid down by this Court, not in adherence to any established precedent, but with the aim of
preventing the abuse of the privilege in light of its highly exceptional nature. The Court’s
recognition that the Executive Secretary also bears the power to invoke the privilege, provided
he does so “by order of the President,” is meant to avoid laying down too rigid a rule, the
Court being aware that it was laying down a new restriction on executive privilege. It is with
the same spirit that the Court should not be overly strict with applying the same rule in this
peculiar instance, where the claim of executive privilege occurred before the judgment
in Senate v. Ermita  became final.
Same; Same; Same; “Sufficient Showing of Need” Standard; When the Executive has
already shown that an information is covered by executive privilege, the party demanding the
information must present a “strong showing of need,” whether that party is Congress or a
private citizen.—Absurdity would be the ultimate result if, for instance, the Court adopts the
“clear and present danger” test for the assessment of claims of privilege against citizens’
demands for information. If executive information, when demanded by a citizen, is privileged
only when there is a clear and present danger of a substantive evil that the State has a right
to prevent, it would be very difficult for the Executive to establish the validity of its claim in
each instance. In contrast, if the demand comes from Congress, the Executive merely has to
show that the information is covered by a recognized privilege in order to shift the burden on
Congress to present a strong showing of need. This would lead to a situation where it
would be more difficult for Congress to access executive information than it would
be for private citizens. We maintain then that when the Executive has already shown that
an information is covered by executive privilege, the party demanding the information must
present a “strong showing of need,” whether that party is Congress or a private citizen.
Same; Same; Same; Balancing of Interests; In executive privilege controversies, the
requirement that parties present a “sufficient showing of need” only means, in substance, that
they should show a public interest in favor of disclosure sufficient in degree to overcome the
claim of privilege, the Court engaging in a balancing of interests, which certainly is not new in
constitutional adjudication involving fundamental rights.—In executive privilege controversies,
the requirement that parties present a “sufficient showing of need” only means, in substance,
that they should show a public interest in favor of disclosure sufficient in degree to overcome
the claim of privilege. Verily, the Court in such cases engages in a balancing of interests. Such
a balancing of interests is certainly not new in constitutional adjudication involving
fundamental rights. Secretary of Justice v. Lantion, 343 SCRA 377 (2000), which was cited in
the dissent, applied just such a test.
Same; Same; Same; Same; Right to Information; “Sufficient Showing of Need”
Standard; The Court holds that, in determining whether an information is covered by the right
to information, a specific “showing of need” for such information is not a
relevant consideration, but only whether the same is a matter of public concern, but when the
government has claimed executive privilege, and it has established that the information is
indeed covered by the same, then the party demanding it, if it is to overcome the privilege,
must show that the information is vital, not simply for the satisfaction of its curiosity, but for
its ability to effectively and reasonably participate in social, political, and economic decision-
making.—When the Executive has—as in this case—invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can
a party overcome the same by merely asserting that the information being demanded is a
matter of public concern, without any further showing required? Certainly not, for that would
render the doctrine of executive privilege of no force and effect whatsoever as a limitation on
the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern. Moreover, in view of the earlier discussions, we
must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine
government runs the grave risk of betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government itself. How would the Philippine
government then explain itself when that happens? Surely, it cannot bear to say that it
just had to  release the information because certain persons simply wanted to know it
“because it interests them.” Thus, the Court holds that, in determining whether an information
is covered by the right to information, a specific “showing of need” for such information is not
a relevant consideration, but only whether the same is a matter of public concern. When,
however, the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to overcome
the privilege, must show that that the information is vital, not simply for the satisfaction of its
curiosity, but for its ability to effectively and reasonably participate in social, political, and
economic decision-making.
Same; Same; Same; Same; U.S. v. Nixon, 418 U.S. 683 (1974), is a useful guide in the
proper resolution of the present controversy, notwithstanding the difference in context; Verily,
while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of
executive power, otherwise, the Court would undermine its own credibility, for it would be
perceived as no longer aiming to strike a balance, but seeking merely to water down
executive privilege to the point of irrelevance. —In applying to the present case the principles
found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on
Accountability, 549 SCRA 77 (2008)—a case involving an executive-legislative conflict over
executive privilege. That dissenting opinion stated that, while Nixon was not concerned with
the balance between the President’s generalized interest in confidentiality and congressional
demands for information, “[n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar.” While the Court was divided
in Neri, this opinion of the Chief Justice was not among the points of disagreement, and We
similarly hold now that the Nixon case is a useful guide in the proper resolution of the present
controversy, notwithstanding the difference in context. Verily, while the Court should guard
against the abuse of executive privilege, it should also give full recognition to the validity of
the privilege whenever it is claimed within the proper bounds of executive power, as in this
case.  Otherwise, the Court would undermine its own credibility, for it would be perceived as
no longer aiming to strike a balance, but seeking merely to water down executive privilege to
the point of irrelevance.488
CARPIO, J., Concurring Opinion:
Separation of Powers; Presidency; Congress; Diplomatic Power; While in diplomatic
negotiations, there is a traditional expectation that the offers and counter-offers of the
negotiating States will remain confidential even after the treaty signing, in the ratification of a
treaty, the Senate has the right to see in executive session, the offers and counter-offers
made in the treaty negotiations even in the absence of consent from our treaty partner State.
—The negotiation of treaties is different from the awarding of contracts by government
agencies. In diplomatic negotiations, there is a traditional expectation that the offers and
counter-offers of the negotiating States will remain confidential even after the treaty signing.
States have honored this tradition and those that do not will suffer the consequences. There is
no such expectation of keeping confidential the internal deliberations of government agencies
after the awarding of contracts. However, in the ratification of a treaty, the Senate has the
right to see in executive session,  the offers and counter-offers made in the treaty negotiations
even in the absence of consent from our treaty partner State. Otherwise, the Senate cannot
examine fully the wisdom of the treaty. In the present case, however, the Senate is not a
party.
AZCUNA, J., Separate Dissenting Opinion:
Right to Information; Congress; Informing Power; What appears to have been forgotten
is an equally important and fundamental power and duty of Congress and that is its informing
function by way of investigating for the purpose of enlightening the electorate. —
The ponencia regrettably assumes that the power of Congress, when it investigates, is either
in aid of legislation or by way of oversight. What appears to have been forgotten is an equally
important and fundamental power and duty of Congress and that is its informing function by
way of investigating for the purpose of enlightening the electorate. Arthur M. Schlesinger, in
THE IMPERIAL PRESIDENCY, aptly quotes Wilson on CONGRESSIONAL GOVERNMENT on this
power: Congress’s “only whip,” Wilson said, “is investigation,” and that “the chief purpose of
investigation, even more than the direction of affairs, was the enlightenment of the electorate.
The inquisitiveness of such bodies as Congress is the best conceivable source of information . .
. . The informing function of Congress should be preferred even to its legislative function. ” For
“the only really self-governing people is that people which discusses and interrogates its
administration.” This is all the more compelling in our polity because our Constitution is replete
and suffused with provisions on transparency, accountability and the right of the people to
know the facts of governance, as pointed out by the Chief Justice.
Same; Transparency is in fact the prevalent trend and non-disclosure is the diminishing
exception.—Transparency is in fact the prevalent trend and non-disclosure is the diminishing
exception. The reason lies in the recognition under international law of the fundamental
human right of a citizen to take part in governance, as set forth in the 1948 United Nations
Universal Declaration of Human Rights, a right that cannot be realized without access to
information. And even in the United States from where the privilege originated no President
has claimed a general prerogative to withhold but rather the Executive has claimed particular
exceptions to the general rule of unlimited executive disclosure.
Same; Executive Privilege; Presidency; The President has the burden to show that a
particular exception obtains in every case where the executive privilege is claimed. —The
President, therefore, has the burden to show that a particular exception obtains in every case
where the privilege is claimed. This has not been done in the present case. All that the Senate
is asking for are copies of the starting offers of the Philippines and of Japan. What is the deep
secret in those papers? If the final product is and has been disclosed, why cannot the starting
offers be revealed? How can anyone, the Senate or the electorate included, fathom—to use
the favorite word of a counsel—the end product if one is not told the starting positions?
TINGA, J., Separate Opinion:
Presidency; Executive Privilege; Diplomatic Power; If indeed the Philippines would
become unique among the governments of the world in establishing that correspondences
related to treaty negotiations are part of the public record, such a doctrine would impair the
ability of the Philippines to negotiate treaties or agreements with foreign countries. —In
ascertaining the balance between executive privilege and the constitutional right to
information in this case, I likewise consider it material to consider the implications had the
Court established a precedent that would classify such documents relating to treaty
negotiations as part of the public record since it is encompassed within the constitutional right
to information. The Dissenting Opinion is unfortunately unable to ultimately convince that
establishing such a general rule would not set the Philippines so far apart from the general
practice of the community of nations. For if indeed the Philippines would become unique
among the governments of the world in establishing that these correspondences related to
treaty negotiations are part of the public record, I fear that such a doctrine would impair the
ability of the Philippines to negotiate treaties or agreements with foreign countries. The
Philippines would become isolated from the community of nations, and I need not expound on
the negative and destabilizing implications of such a consequence.
Ratification of Treaties; If the petitioner in this case is the Senate of the Philippines, and
that it seeks the requested documents in the process of deliberating on the ratification of the
treaty, the documents should be disclosed, subject to mechanisms such as in camera
inspection or executive sessions that would have accorded due regard to executive privilege. —
I wish to add that if the petitioner in this case is the Senate of the Philippines, and that it
seeks the requested documents in the process of deliberating on the ratification of the treaty,
I will vote for the disclosure of such documents, subject to mechanisms such as in
camera inspection or executive sessions that would have accorded due regard to executive
privilege. However, the reason behind such a position will be based not on the right to
information, but rather, on the right of the Senate to fully exercise its constituent function of
ratifying treaties.
 PUNO, C.J., Dissenting Opinion:
Separation of Powers; Presidency; Congress; Diplomatic Power; International Trade;
Economic Globalization; Republicanism; Judicial Review; The key to resolving the decisive
issue in the case at bar turns on the proper framework of analysis—the instant case involves
primarily not an assessment of globalization and international trade or of the extent of
executive privilege in this global arena, but a valuation of the right of the individual and his
representatives in Congress to participate in economic governance.—The key to resolving the
decisive issue in the case at bar turns on the proper framework of analysis. The instant case
involves primarily not an assessment of globalization and international trade or of the extent
of executive privilege in this global arena, but a valuation of the right of the individual and his
representatives in Congress to participate in economic governance . Economic decisions such
as forging comprehensive free trade agreements impact not only on the growth of our nation,
but also on the lives of individuals, especially those who are powerless and vulnerable in the
margins of society.
Same; Same; Same; Same; Same; Same; The “sole organ” remark in United States v.
Curtiss-Wright Export Corporation, 299 U.S. 304 (1936), simply does not apply to the
negotiation of international trade agreements in the U.S. where Congress is allowed, at the
very least, to indirectly participate in trade negotiations through the setting of statutory limits
to negotiating objectives and procedures, and to almost directly negotiate through the
Congressional Oversight Group.—Given this slice of U.S. history showing the allocation of
power over international trade agreement negotiations between the executive and Congress in
U.S. jurisdiction, it will be turning somersaults with history to contend that the President is the
sole organ for external relations. The “sole organ” remark in Curtiss-Wright (299 U.S. 304
[1936]) simply does not apply to the negotiation of international trade agreements in the U.S.
where Congress is allowed, at the very least, to indirectly participate in trade
negotiations through the setting of statutory limits to negotiating objectives and procedures,
and to almost directly negotiate through the Congressional Oversight Group.
Same; Same; Same; Same; Same; Same; Tariff Powers; The provision in Article VI,
Section 22(2) of the 1935 Constitution—to authorize the President, by law, to fix, within
specified limits, tariff rates, import and export quotas, and tonnage and wharfage dues—was
inspired by a desire to enable the nation, through the President, to carry out a unified national
economic program and to administer the laws of the country to the end that its economic
interests would be adequately protected; Congress’ power over foreign trade is one such
provision that must be considered in interpreting the treaty-making power of the President. —
The provision in Article VI, Section 22(2) of the 1935 Constitution—to authorize the President,
by law, to fix, within specified limits, tariff rates, import and export quotas, and tonnage and
wharfage dues—was inspired by a desire to enable the nation, through the President, to carry
out a unified national economic program and to administer the laws of the country to the end
that its economic interests would be adequately protected. This intention to implement a
unified national economic program was made explicit in the 1987 Constitution with the
addition of the phrase “within the framework of the national development program of the
government,” upon motion of Commissioner Christian Monsod. In sum, while provision was
made for granting authority to the President with respect to the fixing of tariffs, import and
export quotas, and tonnage and wharfage dues, the power of Congress over foreign trade,
and its authority to delegate the same to the President by law, has consistently been
constitutionally recognized. Even Curtiss-Wright, which respondents and the ponencia  rely on,
make a qualification that the foreign relations power of the President, “ like every other
governmental power, must be exercised in subordination to the applicable provisions of the
Constitution.” Congress’ power over foreign trade is one such provision that must be
considered in interpreting the treaty-making power of the President.
Same; Same; Same; Same; Same; Same; Same; Japan-Philippines Economic Partnership
Agreement (JPEPA); The purpose of the legislative inquiry in which the subject Japan-
Philippines Economic Partnership Agreement (JPEPA) documents are needed is to aid
legislation, which is different from the purpose of the negotiations conducted by the
Executive, which is to conclude a treaty—exercised within their proper limits, the power of the
House of Representatives to conduct a legislative inquiry in aid of legislation and the power of
the executive to negotiate a treaty should not collide with each other. —Turning to the case at
bar, Congress undoubtedly has power over the subject matter of the JPEPA, as this agreement
touches on the fixing of “tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts.” Congress can, in fact, revoke or amend the power of the
President to fix these as authorized by law or the Tariff and Customs Code of 1978 . Congress
can legislate and conduct an inquiry in aid of legislation on this subject matter, as it did
pursuant to House Resolution No. 551. The purpose of the legislative inquiry in which the
subject JPEPA documents are needed is to aid legislation, which is different from the purpose
of the negotiations conducted by the Executive, which is to conclude a treaty . Exercised within
their proper limits, the power of the House of Representatives to conduct a legislative inquiry
in aid of legislation and the power of the executive to negotiate a treaty should not collide
with each other.
Same; Same; Same; Same; In the U.S., it is recognized that there are at least four kinds
of executive privilege: (1) military and state secrets, (2) presidential communications, (3)
deliberative process, and (4) law enforcement privileges. —In the U.S., it is recognized that
there are at least four kinds of executive privilege: (1) military and state secrets, (2)
presidential communications, (3) deliberative process, and (4) law enforcement privileges. In
the case at bar, respondents invoke the state secrets privilege covering diplomatic or foreign
relations and the deliberative process privilege. Let me first take up the diplomatic secrets
privilege.
Same; Same; Same; Same; Japan-Philippines Economic Partnership Agreement (JPEPA);
The reasons provided by respondents for invoking the diplomatic secrets privilege while the
Japan-Philippines Economic Partnership Agreement (JPEPA) negotiations were ongoing no
longer hold now that the negotiations have been concluded.—Without ruling on the
confidentiality of the subject JPEPA documents during negotiations (as this is no longer in
issue), I submit that the reasons provided by respondents for invoking the diplomatic secrets
privilege while the JPEPA negotiations were ongoing no longer hold now that the negotiations
have been concluded.  That respondents were claiming confidentiality of the subject JPEPA
documents during—not after—negotiations and providing reasons therefor is indubitable. The
23 June 2005 letter of respondent Secretary Ermita to Congressman Teves states that the
“proposed Agreement has been a work in progress for about three years.” Likewise,
respondents’ Comment states that “(a)t the time when the Committee was requesting the
copies of such documents, the negotiations were ongoing as they are still now .” Both
statements show that the subject JPEPA documents were being withheld from
petitioners during and not after negotiations, and that the reasons provided for withholding
them refer to the dangers of disclosure while negotiations are ongoing and not after they
have been concluded.
Same; Same; Same; Same; Same; For a claim of diplomatic secrets privilege to succeed,
it is incumbent upon respondents to satisfy the Court that the disclosure of the subject Japan-
Philippines Economic Partnership Agreement (JPEPA) documents after the negotiations have
been concluded would prejudice our national interest, and that they should therefore be
cloaked by the diplomatic secrets privilege.—For a claim of diplomatic secrets privilege to
succeed, it is incumbent upon respondents to satisfy the Court that the disclosure of the
subject JPEPA documents after the negotiations have been concluded would prejudice our
national interest, and that they should therefore be cloaked by the diplomatic secrets privilege.
It is the task of the Executive to show the Court the reason for the privilege in the context in
which it is invoked, as required by Senate v. Ermita, 488 SCRA 1 (2006), just as the U.S.
government did in Reynolds. Otherwise, the Court, which has the duty to determine with
finality whether the circumstances are appropriate for a claim of privilege, will not have any
basis for upholding or rejecting respondents’ invocation of the privilege. The requirement to
show the reason for the privilege is especially important in the case at bar, considering that
the subject JPEPA documents are part of trade agreement negotiations, which involve
the interdependent powers of the Executive over treaty negotiations and the legislature over
foreign trade, as recognized in both Philippine and U.S. jurisdictions . Upon the Executive’s
showing of the reason and circumstances for invoking the diplomatic secrets privilege, the
Court can then consider whether the application of the privilege to the information or
document in dispute is warranted. As the Executive is given the opportunity to show the
applicability of the privilege, there is a safeguard for protecting what should rightfully be
considered privileged information to uphold national interest.
Same; Same; Same; Same; Same; Deliberative Process Privilege; In the U.S., it is settled
jurisprudence that the deliberative process privilege justifies the government’s withholding of
documents and other materials that would reveal “advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.”—In the U.S., it is settled jurisprudence that the deliberative process privilege
justifies the government’s withholding of documents and other materials that would reveal
“advisory opinions, recommendations  and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” In 1958, the privilege was first
recognized in a U.S. federal case, Kaiser Aluminum Chemical Corp. v. United States, 157 F.
Supp. 939 (Ct. Cl. 1958), in which the term “executive privilege” was also originally used.
Same; Same; Same; Same; Same; Same; Purposes; Requisites; Courts and scholars
have identified three purposes of the deliberative process privilege: (1) to protect candid
discussions within an agency, (2) to prevent public confusion from premature disclosure of
agency opinions before the agency has established a final policy, and (3) to protect against
confusing the issues and misleading the public by dissemination of documents suggesting
reasons and rationales for a course of action, when these were not in fact the ultimate
reasons for the agency’s action; Two requisites are essential for a valid assertion of the
privilege—the material must be pre-decisional and deliberative.—Courts and scholars have
identified three purposes of the privilege: (1) to protect candid discussions within an agency;
(2) to prevent public confusion from premature disclosure of agency opinions before the
agency has established a final policy; and (3) to protect against confusing the issues and
misleading the public by dissemination of documents suggesting reasons and rationales for a
course of action, when these were not in fact the ultimate reasons  for the agency’s
action. Two requisites are essential for a valid assertion of the privilege: the material must
be pre-decisional and deliberative. To be “pre-decisional,” a document must be generated
before the adoption of an agency policy . To be “deliberative,” it must reflect the give-and-take
of the consultative process. Both requirements stem from the privilege’s “ultimate purpose
(which) . . . is to prevent injury to the quality of agency decisions” by allowing government
officials freedom to debate alternative approaches in private. The deliberative process
privilege does not shield documents that simply state or explain a decision  the government
has already made; nor does the privilege cover material that is purely factual, unless the
material is so inextricably intertwined with the deliberative sections of documents that its
disclosure would inevitably reveal the government’s deliberations. There must also be a formal
assertion  of the privilege by the head of the department in control of the information based on
his actual personal consideration of the matter and an explanation as to why the information
sought falls within the scope of the privilege.
Same; Same; Same; Same; Same; Same; Balancing of Interests; In general, courts
balance the need for information against the harm that may result from disclosure. —Once the
agency has shown that the material is both pre-decisional and deliberative, the material enjoys
a qualified privilege that may be overcome by a sufficient showing of need , as held in In re
Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997). In general, courts balance the need
for information against the harm that may result from disclosure.  Thus, “each time (the
deliberative process privilege) is asserted, the district court must undertake a fresh balancing
of the competing interests,” taking into account factors such as “the relevance of the
evidence,” “the availability of other evidence,” “the seriousness of the litigation,” “the role of
the government,” and the “possibility of future timidity by government employees.” These
rulings were made in the context of the refusal of the White House to submit some documents
sought by a grand jury subpoena.
Same; Same; Same; Same; Same; Same; Presidential Communications Privilege; In our
jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the
deliberative process privilege; The distinction between deliberative process privilege and
presidential communications privilege notwithstanding, there is no reason not to recognize in
our jurisdiction the deliberative process privilege, which has essentially the same purpose as
the presidential communications privilege, except that it applies to executive officials in
general.—In our jurisdiction, the Court has had no occasion to recognize and rule on the
applicability of the deliberative process privilege.  In the recent case Neri v. Senate
Committees, 549 SCRA 77 (2008), the Court recognized the claim of the presidential
communications privilege, which is closely associated with the deliberative process privilege.
In In re Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997), the distinction between the
two privileges was explained, viz.: Both are executive privileges designed to protect
executive branch decision-making, but one (deliberative process privilege) applies
to decision-making of executive officials generally, the other specifically to decision-
making of the President. The presidential privilege is rooted in constitutional separation
of powers principles and the President’s unique constitutional role; the deliberative
process privilege is primarily a common law privilege. . .  Consequently, congressional or
judicial negation of the presidential communications privilege is subject to greater scrutiny
than denial of the deliberative privilege . . . Unlike the deliberative process privilege (which
covers only material that is pre-decisional and deliberative), the presidential
communications privilege applies to documents in their entirety, and covers final and
post-decisional materials as well as pre-deliberative ones.” (emphasis supplied) The
distinction notwithstanding, there is no reason not to recognize in our jurisdiction the
deliberative process privilege, which has essentially the same purpose as the presidential
communications privilege, except that it applies to executive officials in general.
Same; Same; Same; Same; Same; Same; Diplomatic Negotiations; The initial offers are
not in the nature of “advisory opinions, recommendations and deliberations” similar to those
submitted by the subordinate to the chief in a government agency, as in the seminal case of
Kaiser, and, likewise, the final text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) prior to signing by the President is not in the nature of an advice or recommendation
or deliberation by executive officials of the Philippine government, as it is the handiwork of
the Philippine and the Japanese negotiating panels working together; Extending the mantle of
protection of the deliberative process privilege to the initial offers of the Philippines and of
Japan and the final JPEPA text prior to signing by the President will be tantamount to
extending the protection of executive branch decision-making to the executive branch not only
of the Philippine government, but also of the Japanese government, which, in trade
agreement negotiations, represents an interest adverse to that of the Philippine government .
—It is my considered view that the subject JPEPA documents do not come within the purview
of the kind of information which the deliberative process privilege shields in order to promote
frank and candid discussions and protect executive branch decision-making of the Philippine
government. The initial offers are not in the nature of “advisory opinions,
recommendations  and deliberations” similar to those submitted by the subordinate to the chief
in a government agency, as in the seminal case of Kaiser. The initial offer of the Philippines is
not a document that offers alternative courses of action to an executive official to aid in the
decision-making of the latter, but is instead a proposal to another government, the Japanese
government, to institute negotiations. The end in view of these negotiations is not a decision
or policy of the Philippine government, but a joint decision or agreement between the
Philippine and the Japanese governments. Likewise, the final text of the JPEPA prior to
signing by the President is not in the nature of an advice or recommendation or deliberation
by executive officials of the Philippine government, as it is the handiwork of the Philippine and
the Japanese negotiating panels working together.  The documents sought to be disclosed
are not of the same nature as internal deliberations of the Department of Trade and Industry
or the Philippine negotiating panel in crafting and deciding the initial offer of the Philippines or
internal memoranda of Philippine government agencies to advise President Macapagal-Arroyo
in her decision to sign the JPEPA. Extending the mantle of protection of the deliberative
process privilege to the initial offers of the Philippines and of Japan and the final JPEPA text
prior to signing by President Macapagal-Arroyo will be tantamount to extending the protection
of executive branch decision-making to the executive branch not only of the Philippine
government, but also of the Japanese government, which, in trade agreement negotiations,
represents an interest adverse to that of the Philippine government . As seen from the
rationale and history of the deliberative process privilege, this is not the intent of the
deliberative process privilege. Given the nature of the subject JPEPA documents, it is the
diplomatic secrets privilege that can properly shield them upon sufficient showing of reasons
for their confidentiality. Hence, the invocation of deliberative process privilege to protect the
subject JPEPA documents must fail.
Same; Same; Same; Same; Same; Same; Executive privilege must be invoked by the
President, or the Executive Secretary “by order of the President,” unlike in U.S. jurisdiction
where, as afore-discussed, the formal assertion of the head of the department claiming the
privilege suffices.—But this is not all.  In Senate v. Ermita, the Court also required that
executive privilege must be invoked by the President, or the Executive Secretary “by order of
the President,” unlike in U.S. jurisdiction where, as afore-discussed, the formal assertion of the
head of the department claiming the privilege suffices. In the case at bar, the Executive
Secretary invoked both the deliberative process privilege and the diplomatic secrets
privilege not “by order of the President,”  as his 23 June 2005 letter quoted above shows.
Accordingly, the invocation of executive privilege was not properly made and was therefore
without legal effect.
Same; Same; Same; Same; Same; Same; Balancing of Interests; Secrecy has long
played an integral but also controversial role in the negotiation of international agreements—it
facilitates frank discussion, minimizes posturing and allows flexibility in negotiating positions
but it is also prone to abuse and is often assailed as undemocratic and facilitating abuse of
power; The tension between secrecy and the demand for openness continues, but
circumstances have changed, as the international trade agreements of today tend to be far
more authoritative and comprehensive—these trade agreements have broader and more
direct consequences on private conduct; The developments in the openness to the public of
international trade agreement negotiations show that secrecy in the negotiation of treaties is
not a rule written in stone—revisiting the balance between secrecy and openness is an
imperative, especially in the Philippines where the right to information has been elevated to a
constitutional right essential to our democratic society .—Secrecy has long played an integral
but also controversial role in the negotiation of international agreements. It facilitates frank
discussion, minimizes posturing and allows flexibility in negotiating positions. But it is
also prone to abuse and is often assailed as undemocratic and facilitating abuse of power. In
the public eye, excessive secrecy can weaken accountability and undermine the legitimacy of
government action. Generally, it can also undermine the faith of the public in the need for
secrecy for “secrecy can best be preserved only when credibility is truly maintained.” The
tension between secrecy and the demand for openness continues, but circumstances have
changed, as the international trade agreements of today tend to be far more authoritative and
comprehensive than those negotiated by Presidents Woodrow Wilson, George Washington and
John Jay. These trade agreements have broader and more direct consequences on private
conduct. As the trend on international trade agreements will only continue, it is important
to revisit the tension between secrecy and openness. The fact alone that secrecy shrouded
negotiations of international agreements three hundred or even twenty-five years ago can no
longer justify the continuation of that approach in today’s era of the NAFTA, CAFTA (Central
American Free Trade Agreement), and a prospective FTAA. These developments in the
openness to the public of international trade agreement negotiations show that secrecy in the
negotiation of treaties is not a rule written in stone . Revisiting the balance between secrecy
and openness is an imperative, especially in the Philippines where the right to information has
been elevated to a constitutional right essential to our democratic society.
Republicanism; Of all the organic laws of our country, the 1987 Constitution holds most
sacrosanct the people’s role in governance—the word “democratic” was added to “republican”
in Article II, Section 1 of the Constitution as a “pardonable redundancy” to highlight the
importance of the people’s role in government. —Of all the organic laws of our country, the
1987 Constitution holds most sacrosanct the people’s role in governance. As a first principle of
government, the 1987 Constitution declares in Article II, Section 1, Declaration of Principles
and State Policies, that the Philippines is not only a republican but also a democratic
state.  The word “democratic” was added to “republican” as a “pardonable redundancy” to
highlight the importance of the people’s role in government, as evinced by the exchanges in
the 1986 Constitutional Commission.
Same; Right to Information; The constitutional provision on the people’s right to
information made its maiden appearance in the Bill of Rights of the 1973 Constitution, but
without the phrase “as well as to government research data used as basis for policy
development” was added in the 1987 Constitution to stop the government practice during
Martial Law of withholding social research data from the knowledge of the public whenever
such data contradicted policies that the government wanted to espouse.—The constitutional
provision on the people’s right to information made its maiden appearance in the Bill of Rights
of the 1973 Constitution, but without the phrase “as well as to government research data used
as basis for policy development.” The phrase was added in the 1987 Constitution to stop the
government practice during Martial Law of withholding social research data from the
knowledge of the public whenever such data contradicted policies that the government
wanted to espouse.
Same; Same; Locus Standi; Under both the 1973 and the 1987 Constitutions, the right
to information is self-executory, a public right that belongs to and can be invoked by the
people—every citizen has the “standing” to challenge any violation of the right and may seek
its enforcement.—Under both the 1973 and the 1987 Constitutions, the right to information
is self-executory. It is a public right that belongs to and can be invoked by the people.
Consequently, every citizen has the “standing” to challenge any violation of the right and may
seek its enforcement. The self-executory status and the significance in a democracy of the
right of access to information were emphasized by the Court in Gonzales v. Narvasa, 337
SCRA 733 (2000).
Same; Same; Burden of Proof; With the elevation of the right to information to
constitutional stature, the starting point of the inquiry is the general rule that the public has a
right to information on matters of public concern and the State has a corresponding duty to
allow public access to such information—should the government agency deny access, it has
the burden of showing that the information requested is not of public concern, or, if it is of
public concern, that the same has been exempted by law from the operation of the guarantee
because to hold otherwise will serve to dilute the constitutional right. —With the elevation of
the right to information to constitutional stature, the starting point of the inquiry is the general
rule that the public has a right to information on matters of public concern and the State has a
corresponding duty to allow public access to such information. It is recognized, however, that
the constitutional guarantee admits of exceptions such as “limitations as may be provided by
law.” Thus, as held in Legaspi, 150 SCRA 530 (1987), “in every case, the availability of access
to a particular public record” is circumscribed by two elements: (1) the information is
“of public concern or one that involves public interest,” and, (2) it is “not exempt by law from
the operation of the constitutional guarantee.” The question of access is first addressed to the
government agency having custody of the information sought. Should the government agency
deny access, it “has the burden of showing that the information requested is not of public
concern, or, if it is of public concern, that the same has been exempted by law from the
operation of the guarantee” because “(t)o hold otherwise will serve to dilute the constitutional
right. As aptly observed, ‘. . . the government is in an advantageous position to marshal and
interpret arguments against release . . .’ (87 Harvard Law Review 1511 [1974]).” Furthermore,
the Court ruled that “(t)o safeguard the constitutional right, every denial of access by the
government agency concerned is subject to review by the courts.”
Same; Same; Balancing of Interests Test; Showing of Need Test; In the adjudication of
rights guaranteed in the Constitution, the Court has never used “showing of need” as a test to
uphold rights or allow inroads into them; The question in the adjudication of constitutional
rights is whether the incursion into a right is peripheral or essential, or whether there is a
heavier public interest that must prevail over a constitutional right in order to preserve an
ordered society.—In the adjudication of rights guaranteed in the Constitution, however, the
Court has never used “showing of need” as a test to uphold rights or allow inroads into
them.  I respectfully submit that we ought not to weigh the need to exercise the right to free
speech or free assembly or free practice of religion. These are freedoms that have been won
by all for the benefit of all, without the requisite showing of need for entitlement. When we
valuate these constitutional rights, we do not consider their necessity for the performance of a
function, as in the case of government branches and entities. The question in the adjudication
of constitutional rights is whether the incursion into a right is peripheral or essential, as when
there is only a “soft restraint” on the potential extraditee’s right to procedural due process; or
whether there is a heavier public interest that must prevail over a constitutional right in order
to preserve an ordered society, such as when there is a “clear and present danger” of a
substantive evil that the State has a right to prevent as demonstrated in free speech cases, or
when there is a “compelling state interest” that must override the free exercise of religion.
Same; Same; Same; Same; The right to information lies at the heart of a government
that is not only republican but also democratic; Employing the “balancing of interests” test,
the public interest in upholding this constitutional right of the public to information must be
carefully balanced with the public interest in nondisclosure of information in relation to treaty
negotiations.—The right to information lies at the heart of a government that is not only
republican but also democratic. For this reason, Article III, Section 7 of the 1987 Constitution,
calls for “an informed citizenry with access to the diverse currents in political, moral and
artistic thought and data relative to them, and the free exchange of ideas and discussion of
issues thereon is vital to the democratic government envisioned under our Constitution.” Thus,
employing the “balancing of interests” test, the public interest in upholding this constitutional
right of the public to information must be carefully balanced with the public interest in
nondisclosure of information in relation to treaty negotiations. This test is in line with the
approach adopted in the right to access statute of the United Kingdom and New Zealand.
Same; Same; Same; Same; The right to information is an end in itself; The yardstick
with respect to individuals exercising a constitutionally granted right to information should be
the importance of the right and the public interest in upholding it.—The right to information is
a constitutional right in and of itself and does not derive its significance only in relation to the
exercise of another right, such as the right to free speech or a free press if that is the kind of
“function” of an individual that can be equated with the functions of government agencies in
the above cases cited by the ponencia. To reiterate, Valmonte teaches that the right to
information is not merely an adjunct of the right to free speech and a free press. Stated
another way, the right to information is an end in itself , even as it may be exercised in
furtherance of other rights or purposes of an individual. To say that one exercises the right to
information simply to be informed, and not because of a particular need, is not a meaningless
tautology. Thus, instead of using “showing of need” as a passport to access purportedly
privileged information, as in the case of government entities needing information to perform
a constitutionally mandated duty, the yardstick with respect to individuals exercising
a constitutionally granted right to information should be the importance of the right and the
public interest in upholding it.
 Same; Same; Same; Same; There is no absurdity when a distinction is made where
there are real differences.—That the application of the “showing of need” test to executive
privilege cases involving branches of government and of the “balancing of interests” test to
cases involving the constitutional right to information could yield different results is not an
absurdity. The difference in results would not be any more absurd than it would be for an
accused to be adjudged innocent in a criminal action but liable in a civil action arising from
one and the same act he committed. There is no absurdity when a distinction is made where
there are real differences.
Same; Same; Uninformed participation in the governance of the country impairs the
right of our people to govern their lives while informed debate serves as the fountainhead
from which truth and the best interest of the country will spring. —Without adjudging the
merits of objections to the above provisions of the JPEPA, the fact that these concerns are
raised and that these provisions will impact on the lives of our people stress the need for
an informed debate by the public on the JPEPA. Rooted in the unique Philippine
experience, the 1987 Constitution strengthened participatory democracy not only in our
political realm but also in the economic arena. Uninformed participation in the governance of
the country impairs the right of our people to govern their lives while informed debate serves
as the fountainhead from which truth and the best interest of the country will spring.
Same; Same; When warranted, we must overcome the entropy of the old tradition of
secrecy.—By upholding the constitutional right to information over the invocation of executive
privilege in the instant case, it is my considered view that the subject JPEPA documents should
be disclosed considering the particular circumstances of the case at bar. In arriving at this
conclusion, a balancing of interests test has to be employed which will allow the executive to
show the public interest it seeks to protect in invoking executive privilege. The test serves as
a safeguard against disclosure of information that should properly be kept secret. There is
thus no foundation for the fears expressed in the Separate Opinion of Justice Tinga, viz.:
“(The ruling) would establish a general rule that diplomatic negotiations of treaties and other
international agreements . . . belong to the public record since it is encompassed within the
constitutional right to information . . . if indeed the Philippines would become unique among
the governments of the world in establishing that these correspondences related to treaty
negotiations are part of the public record, I fear that such doctrine would impair the ability of
the Philippines to negotiate treaties or agreements with foreign countries.” As afore-discussed,
allowing public access to trade agreement negotiations and draft texts, in various degrees and
ways, has gained momentum in the landscape of U.S. diplomatic and foreign relations. I
submit that, when warranted, we must overcome the entropy of the old tradition of secrecy.
Same; Same; In a democracy, debate—by the people directly or through their
representatives in Congress—is a discussion of and by the informed and not an exchange of
surpluses of ignorance.—In sum, transparency and opacity are not either-or propositions in
the conduct of international trade agreement negotiations. The degree of confidentiality
necessary in a particular negotiation is a point in a continuum where complete disclosure and
absolute secrecy are on opposite ends. In assigning this fulcrum point, it is my humble view
that the Court should balance the need for secrecy of the Executive and the demand for
information by the legislature or the public. The balancing act in every case safeguards against
disclosure of information prejudicial to the public interest and upholds the fundamental
principle enunciated in Senate v. Ermita, 488 SCRA 1 (2006)—that a claim of executive
privilege “may be valid or not depending on the ground invoked to justify it and the context in
which it is made.” We elevated the right to information to constitutional stature not without
reason. In a democracy, debate—by the people directly or through their representatives in
Congress—is a discussion of and by the informed and not an exchange of surpluses of
ignorance. In the arena of economic governance, the right to debate and participate is
exercised not as an end in itself. Especially for the powerless whose sword and shield against
abuse is their voice, the exercise of the right is not merely rhetoric. It is a fight from the gut
to satisfy basic human needs and lead a humane life.
SPECIAL CIVIL ACTION in the Supreme Court. Mandamus and Prohibition.
   The facts are stated in the opinion of the Court.
  Ma. Tanya Karina A. Lat, Ibarra M. Gutierrez  and Antonio L. Salvador  for petitioners.
CARPIO-MORALES, J.:
Petitioners—non-government organizations, Congresspersons, citizens and taxpayers—
seek via the present petition for mandamus and prohibition to obtain from respondents the full
text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine
and Japanese offers submitted during the negotiation process and all pertinent attachments
and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25,
2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then
being negotiated by the Philippine government, particularly the JPEPA. The Resolution became
the basis of an inquiry subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating
Committee created under Executive Order No. 213 (“Creation of A Philippine Coordinating
Committee to Study the Feasibility of the Japan-Philippines Economic Partnership
Agreement”)1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a
copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of
November 2, 2005, replied that the Congressman shall be provided with a copy thereof “once
the negotiations are completed and as soon as a thorough legal review of the proposed
agreement has been conducted.”
In a separate move, the House Committee, through Congressman Herminio G. Teves,
requested Executive Secretary Eduardo Ermita to furnish it with “all documents on the subject
including the latest draft of the proposed agreement, the requests and offers etc.”2 Acting on
the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as
follows:
 “In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs]
explains that the Committee’s request to be furnished all documents on the JPEPA
may be difficult to accomplish at this time, since the proposed Agreement has been
a work in progress for about three years. A copy of the draft JPEPA will however be
forwarded to the Committee as soon as the text thereof is settled and complete.” (Emphasis
supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of
the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission
does not have a copy of the documents being requested, albeit he was certain that Usec.
Aquino would provide the Congressman with a copy “once the negotiation is completed.” And
by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the
Congressman that his request addressed to Director-General Neri had been forwarded to
Usec. Aquino who would be “in the best position to respond” to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue
a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves’ information, then House Speaker Jose de Venecia
had requested him to hold in abeyance the issuance of the subpoena until the President gives
her consent to the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005.4 The agreement was to
be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese
Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it
to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To
date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippines with another country in the event the Senate grants its consent to it, covers a
broad range of topics which respondents enumerate as follows: trade in goods, rules of origin,
customs procedures, paperless trading, trade in services, investment, intellectual property
rights, government procurement, movement of natural persons, cooperation, competition
policy, mutual recognition, dispute avoidance and settlement, improvement of the business
environment, and general and final provisions.5
While the final text of the JPEPA has now been made accessible to the public since
September 11, 2006,6 respondents do not dispute that, at the time the petition was filed up to
the filing of petitioners’ Reply—when the JPEPA was still being negotiated—the initial drafts
thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the
petition, the Court finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. 7 Respondents
deny that petitioners have such standing to sue. “[I]n the interest of a speedy and definitive
resolution of the substantive issues raised,” however, respondents consider it sufficient to cite
a portion of the ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need
for a “personal stake in the outcome of the controversy” on questions of standing.
In a petition anchored upon the right of the people to information on matters of public
concern, which is a public right by its very nature, petitioners need not show that they have
any legal or special interest in the result, it being sufficient to show that they are citizens and,
therefore, part of the general public which possesses the right.9 As the present petition is
anchored on the right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of Representatives who
additionally are suing in their capacity as such, the standing of petitioners to file the present
suit is grounded in jurisprudence.
Mootness
Considering, however, that “[t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two States
parties,”10 public disclosure of the text of the JPEPA after its signing by the President, during
the pendency of the present petition, has been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands
cannot yet be considered as final and binding between the two States. Article 164 of the
JPEPA itself provides that the agreement does not take effect immediately upon the signing
thereof. For it must still go through the procedures required by the laws of each country for its
entry into force, viz.:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the
Governments of the Parties exchange diplomatic notes informing each other that their
respective legal procedures necessary for entry into force of this Agreement have
been completed. It shall remain in force unless terminated as provided for in Article
165.11 (Emphasis supplied)
 
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the
legal procedures which must be met prior to the agreement’s entry into force.
 The text of the JPEPA having then been made accessible to the public, the petition has
become moot and academic to the extent that it seeks the disclosure of the “full text” thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely
the text of the JPEPA, but also the Philippine and Japanese offers in the course of the
negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for
access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents
bearing on the JPEPA negotiations violates their right to information on matters of public
concern13 and contravenes other constitutional provisions on transparency, such as that on the
policy of full public disclosure of all transactions involving public interest.14 Second, they
contend that non-disclosure of the same documents undermines their right to effective and
reasonable participation in all levels of social, political, and economic decision-making. 15 Lastly,
they proffer that divulging the contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber stamp of the Executive, in
violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of
the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine
and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents’
claim of privilege shall be discussed. The last, being purely speculatory given that the Senate
is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold
requirement that it be a matter of public concern. Apropos  is the teaching of Legaspi v. Civil
Service Commission:
“In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest or importance, as it relates
to or affects the public.”16 (Italics supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution are
matters of public concern. This, respondents do not dispute. They only claim that diplomatic
negotiations are covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of
full public disclosure is absolute, there being matters which, albeit of public concern or public
interest, are recognized as privileged in nature. The types of information which may be
considered privileged have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18
Chavez v. Public Estates Authority,19  and most recently in Senate v. Ermita20 where the Court
reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its
scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it
and the context in which it is made.21 In the present case, the ground for respondents’ claim
of privilege is set forth in their Comment, viz.:
“x x x The categories of information that may be considered privileged includes matters of
diplomatic character and under negotiation and review. In this case, the privileged character
of the diplomatic negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations
and legal review by the parties fall under the exceptions to the right of access to information
on matters of public concern and policy of public disclosure. They come within the coverage of
executive privilege. At the time when the Committee was requesting for copies of such
documents, the negotiations were ongoing as they are still now and the text of the proposed
JPEPA is still uncertain and subject to change. Considering the status and nature of such
documents then and now, these are evidently covered by executive privilege consistent with
existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the “rolling
texts” which may undergo radical change or portions of which may be totally
abandoned. Furthermore, the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality. ”22 (Emphasis and italics supplied)
The ground relied upon by respondents is thus not simply that the information sought
involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction.
In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held
that “information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest.”23 Even earlier, the same privilege was upheld in People’s Movement for Press
Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in
more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement.25 The Court denied the petition, stressing that “ secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.” The
Resolution went on to state, thus:
“The nature of diplomacy requires centralization of authority and expedition of
decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature. Although much has been said about “open” and
“secret” diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson
have clearly analyzed and justified the practice. In the words of Mr. Stimson:
“A complicated negotiation . . . cannot be carried through without many,
many private talks and discussion, man to man; many tentative suggestions
and proposals. Delegates from other countries come and tell you in
confidence of their troubles at home and of their differences with other
countries and with other delegates; they tell you of what they would do
under certain circumstances and would not do under other circumstances . .
. If these reports . . . should become public . . . who would ever
trust American Delegations in another conference? (United States Department
of State, Press Releases, June 7, 1930, pp. 282-284.).”
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign
powers on nearly all subjects is concerned. This, it is claimed, is incompatible with
the substance of democracy. As expressed by one writer, “It can be said that there is no
more rigid system of silence anywhere in the world.” (E.J. Young, Looking Behind the
Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have “open covenants, openly arrived at.”
He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
“muscle in.” An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved. (The New American Government and Its Works, James T. Young, 4th Edition,
p. 194)” (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus,  the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp.26 that the President is the sole organ  of the nation in its negotiations with foreign
countries, viz.:
“x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates.
Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the House of
Representatives, “The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations.” Annals, 6th Cong., col.
613. . .” (Emphasis supplied; underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of
the JPEPA may not be kept perpetually confidential—since there should be “ample opportunity
for discussion before [a treaty] is approved”—the offers exchanged by the parties during the
negotiations continue to be privileged even after the JPEPA is published. It is reasonable to
conclude that the Japanese representatives submitted their offers with the understanding that
“historic confidentiality”27 would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign governments in
future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny
would discourage future Philippine representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter Philippine representatives
from entering into compromises, it bears noting that treaty negotiations, or any negotiation for
that matter, normally involve a process of quid pro quo, and oftentimes negotiators have
to be willing to grant concessions in an area of lesser importance in order to obtain
more favorable terms in an area of greater national interest . Apropos  are the
following observations of Benjamin S. Duval, Jr.:
“x x x [T]hose involved in the practice of negotiations appear to be in agreement
that publicity leads to “grandstanding,” tends to freeze negotiating positions, and
inhibits the give-and-take essential to successful negotiation. As Sissela Bok points
out, if “negotiators have more to gain from being approved by their own sides than by making
a reasoned agreement with competitors or adversaries, then they are inclined to ‘play to the
gallery . . .” In fact, the public reaction may leave them little option. It would be a
brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that
did not involve the return of the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel’s existing settlements from Judea and Samaria in return for
peace.”28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the
JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege
is only presumptive. For as Senate v. Ermita  holds, recognizing a type of information as
privileged does not mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined if there is a
public interest that calls for the disclosure of the desired information, strong enough to
overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by petitioners
against the application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto  to the present case,
there being substantial factual distinctions between the two.
To petitioners, the  first  and most fundamental distinction lies in the nature of the treaty
involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which
necessarily pertained to matters affecting national security; whereas the present case
involves an economic treaty that seeks to regulate trade and commerce between the
Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement,
are not so vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate v. Ermita29 that executive
privilege has encompassed claims of varying kinds, such that it may even be more accurate to
speak of “executive privileges,” cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One example
is the “informer’s privilege,” or the privilege of the Government not to disclose the identity
of a person or persons who furnish information of violations of law to officers charged with the
enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to
national security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only would this
be contrary to long-standing practice. It would also be highly prejudicial to law enforcement
efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are
presumed privileged without distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege being that
“x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. x x
x”31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature
of the case deliberated upon, so presidential communications are privileged whether they
involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not
absolute, one significant qualification being that “the Executive cannot, any more than the
other branches of government, invoke a general confidentiality privilege to shield  its officials
and employees from investigations by the proper governmental institutions into possible
criminal wrongdoing.”32 This qualification applies whether the privilege is being invoked in
the context of a judicial trial or a congressional investigation conducted in aid of legislation.33
Closely related to the “presidential communications” privilege is the deliberative process
privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v.
Sears, Roebuck & Co.,34 deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Notably, the privileged status of such documents
rests, not on the need to protect national security but, on the “obvious realization that
officials will not communicate candidly among themselves if each remark is a potential item of
discovery and front page news,” the objective of the privilege being to enhance the quality of
agency decisions.35
The diplomatic negotiations privilege bears a close resemblance to the deliberative
process and presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative process, and
presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic
negotiations is meant to encourage a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from public view. Similar to the privilege for
presidential communications, the diplomatic negotiations privilege seeks, through the same
means, to protect the independence in decision-making of the President, particularly in its
capacity as “the sole organ of the nation in its external relations, and its sole representative
with foreign nations.” And, as with the deliberative process privilege, the privilege accorded to
diplomatic negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the public
interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury37  enlightens on the close relation between diplomatic negotiations
and deliberative process privileges. The plaintiffs in that case sought access to notes taken by
a member of the U.S. negotiating team during the U.S.-French tax treaty negotiations.
Among the points noted therein were the issues to be discussed, positions which the French
and U.S. teams took on some points, the draft language agreed on, and articles which needed
to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
“Negotiations between two countries to draft a treaty represent a true example
of a deliberative process. Much give-and-take must occur for the countries to reach
an accord.  A description of the negotiations at any one point would not provide an onlooker
a summary of the discussions which could later be relied on as law. It would not be “working
law” as the points discussed and positions agreed on would be subject to change at any date
until the treaty was signed by the President and ratified by the Senate.
 The policies behind the deliberative process privilege support non-disclosure.
Much harm could accrue to the negotiations process if these notes were
revealed. Exposure of the pre-agreement positions of the French negotiators might
well offend foreign governments and would lead to less candor by the U.S. in
recording the events of the negotiations process. As several months pass in between
negotiations, this lack of record could hinder readily the U.S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies should be changed,
public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the notes state the
tentative provisions and language agreed on. As drafts of regulations typically are
protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
accorded the same protection.” (Emphasis and italics supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical
consequence from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al.
v. Office of U.S. Trade Representative 38—where the plaintiffs sought information relating to
the just-completed negotiation of a United States-Chile Free Trade Agreement—the same
district court, this time under Judge Friedman, consciously refrained from applying the
doctrine in Fulbright and ordered the disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine
in Fulbright, a discussion of why the district court did not apply the same would help illumine
this Court’s own reasons for deciding the present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
information, namely, Exemption 5 of the Freedom of Information Act (FOIA). 39 In order to
qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must
be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional
and part of the agency’s deliberative or decision-making process. 40
Judge Friedman, in CIEL, himself cognizant of a “superficial similarity of context” between
the two cases, based his decision on what he perceived to be a significant distinction: he
found the negotiator’s notes that were sought in Fulbright to be “clearly internal,” whereas the
documents being sought in CIEL were those produced by or exchanged with an outside
party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the
question of disclosure therein turned not on the threshold requirement of Exemption 5 that
the document be inter-agency, but on whether the documents were part of the agency’s pre-
decisional deliberative process. On this basis, Judge Friedman found that “Judge Green’s
discussion [in Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the
Court does not reach the question of deliberative process.” (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
irrelevant in light of its distinct factual setting. Whether this conclusion was valid—a question
on which this Court would not pass—the ruling in Fulbright that “[n]egotiations between two
countries to draft a treaty represent a true example of a deliberative process” was left
standing, since the CIEL court explicitly stated that it did not reach the question of deliberative
process.
Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and
to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle
articulated in Fulbright that the public policy underlying the deliberative process privilege
requires that diplomatic negotiations should also be accorded privileged status, even if the
documents subject of the present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on
its finding that the first requirement of FOIA Exemption 5—that the documents be inter-
agency—was not met. In determining whether the government may validly refuse disclosure
of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement,
it being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on
the issue of whether the privilege being claimed is indeed supported by public
policy, without having to consider—as the CIEL court did—if these negotiations fulfill a formal
requirement of being “inter-agency.” Important though that requirement may be in the
context of domestic negotiations, it need not be accorded the same significance when dealing
with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the
reasons explained above, the Court sees no reason to modify, much less abandon, the
doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from
the present case is the fact that the petitioners therein consisted entirely of members of the
mass media, while petitioners in the present case include members of the House of
Representatives who invoke their right to information not just as citizens but as members of
Congress.
Petitioners thus conclude that the present case involves the right of members of Congress
to demand information on negotiations of international trade agreements from the Executive
branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass
media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a
controversy such as the present, where the demand for information has come from members
of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances. The probability of the claim succeeding in the
new context might differ, but to say that the privilege, as such, has no validity at all in that
context is another matter altogether.
The Court’s statement in Senate v. Ermita that “presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of considerations [state secrets
privilege, informer’s privilege, and a generic privilege for internal deliberations], and may be
asserted, with differing degrees of success, in the context of either judicial or legislative
investigations,”41 implies that a privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the
President alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’
demands for information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of
diplomatic negotiations cannot be considered irrelevant in resolving the present case, the
contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case,
petitioners proffer that “the socio-political and historical contexts of the two cases are worlds
apart.” They claim that the constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus came about, particularly the school of thought that the requirements of foreign
policy and the ideals of transparency were incompatible with each other or the “incompatibility
hypothesis,” while valid when international relations were still governed by power, politics and
wars, are no longer so in this age of international cooperation.42
Without delving into petitioners’ assertions respecting the “incompatibility hypothesis,” the
Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school of thought. If petitioners are
suggesting that the nature of treaty negotiations have so changed that “[a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are exacted or offered on
both sides” no longer “lead[s] to widespread propaganda to block the negotiations,” or that
parties in treaty negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This petitioners failed
to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that “diplomatic negotiations on the JPEPA are entitled to a reasonable
amount of confidentiality so as not to jeopardize the diplomatic process.” They argue,
however, that the same is privileged “only at certain stages of the negotiating process, after
which such information must necessarily be revealed to the public.” 43 They add that the duty
to disclose this information was vested in the government when the negotiations moved from
the formulation and exploratory stage to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in
both that case and Chavez v. PCGG with regard to the duty to disclose “definite propositions of
the government” does not apply to diplomatic negotiations:
“We rule, therefore, that the constitutional right to information includes official information
on on-going negotiations before a final contract. The information, however, must
constitute definite propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar
matters affecting national security and public order. x x x”46 (Emphasis and
underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under “recognized exceptions.” The privilege for diplomatic negotiations is
clearly among the recognized exceptions, for the footnote to the immediately quoted ruling
cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against
disclosure, even against the demands of members of Congress for information, the Court shall
now determine whether petitioners have shown the existence of a public interest sufficient to
overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account.
One is the presumed public interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the first place, and the other is the
public interest in favor of disclosure, the existence of which must be shown by the party
asking for information. 47
The criteria to be employed in determining whether there is a sufficient public interest in
favor of disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select
Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege against
the subpoena duces tecum of a district court in a criminal  case, emphasized the need to
balance such claim of privilege against the constitutional duty of courts to ensure a fair
administration of criminal justice.
 “x x x the allowance of the privilege to withhold evidence that is demonstrably
relevant  in a criminal trial would cut deeply into the guarantee of due process of law
and gravely impair the basic function of the courts. A President’s acknowledged
need for confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President’s broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.” (Emphasis, italics
and italics supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a Senate committee, spoke
of the need to balance such claim with the duty of Congress to perform
its legislative  functions.
“The staged decisional structure established in Nixon v. Sirica was designed to ensure that
the President and those upon whom he directly relies in the performance of his duties could
continue to work under a general assurance that their deliberations would remain confidential.
So long as the presumption that the public interest favors confidentiality can be
defeated only by a strong showing of need by another institution of government— a
showing that the responsibilities of that institution cannot responsibly be fulfilled
without access to records of the President’s deliberations—we believed in Nixon v.
Sirica, and continue to believe, that the effective functioning of the presidential office will not
be impaired. x x x
xxxx
The sufficiency of the Committee’s showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. x x x” (Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential
communications privileges against a subpoena duces tecum  of a grand jury. On the claim of
deliberative process privilege, the court stated:
“The deliberative process privilege is a qualified privilege and can be overcome
by a sufficient showing of need. This need determination is to be made flexibly on
a case-by-case, ad hoc basis. “[E]ach time [the deliberative process privilege] is asserted
the district court must undertake a fresh balancing of the competing interests,” taking into
account factors such as “the relevance of the evidence,” “the availability of other
evidence,” “the seriousness of the litigation,” “the role of the government,” and the
“possibility of future timidity by government employees.” x x x (Emphasis, italics and
underscoring supplied)
Petitioners have failed to present the strong and “sufficient showing of need” referred to in
the immediately cited cases. The arguments they proffer to establish their entitlement to the
subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and property
rights without their knowledge and participation, in violation of the due process clause of the
Constitution. They claim, moreover, that it is essential for the people to have access to the
initial offers exchanged during the negotiations since only through such disclosure can their
constitutional right to effectively participate in decision-making be brought to life in the
context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were
conducted on the JPEPA. Parenthetically, petitioners consider these “alleged consultations” as
“woefully selective and inadequate.”53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and
Japanese representatives have not been disclosed to the public, the Court shall pass upon the
issue of whether access to the documents bearing on them is, as petitioners claim, essential to
their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the
full text of the JPEPA to the public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the
Senate to concur with the validity of the JPEPA at this moment, there has already been, in the
words of PMPF v. Manglapus, “ample opportunity for discussion before [the treaty] is
approved.”
The text of the JPEPA having been published, petitioners have failed to convince this Court
that they will not be able to meaningfully exercise their right to participate in decision-making
unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have
already publicly expressed their views on the JPEPA, their comments not being limited to
general observations thereon but on its specific provisions. Numerous articles and statements
critical of the JPEPA have been posted on the Internet.54 Given these developments, there is
no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential to
the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have
a right to the subject documents on the basis of Congress’ inherent power to regulate
commerce, be it domestic or international. They allege that Congress cannot meaningfully
exercise the power to regulate international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the negotiations thereof. In the same
vein, they argue that the President cannot exclude Congress from the JPEPA negotiations
since whatever power and authority the President has to negotiate international trade
agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of
the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate
treaties and international agreements, but the power to fix tariff rates, import and export
quotas, and other taxes. Thus it provides:
“(2) The Congress may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.”
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of
Article VII—the article on the Executive Department—which states:
“No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.”
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed in BAYAN v.
Executive Secretary56  where the Court held:
“By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the country.
In many ways, the President is the chief architect of the nation’s foreign policy; his
“dominance in the field of foreign relations is (then) conceded.” Wielding vast
powers and influence, his conduct in the external affairs of the nation, as Jefferson
describes, is “executive altogether.”
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at
least two thirds vote of all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are exclusive acts which pertain
solely to the President, in the lawful exercise of his vast executive and diplomatic
powers  granted him no less than by the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it. x x x” (Italics in the original; emphasis and italics supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary57 where the Court ruled:
“In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country’s sole
representative with foreign nations. As the chief architect of foreign policy, the President
acts as the country’s mouthpiece with respect to international affairs. Hence, the President
is vested with the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. x x x” (Emphasis and underscoring supplied) 
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is
exercised by the President only by delegation of that body, it has long been recognized that
the power to enter into treaties is vested directly and exclusively in the President, subject only
to the concurrence of at least two-thirds of all the Members of the Senate for the validity of
the treaty. In this light, the authority of the President to enter into trade agreements with
foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of
a power already inherent in its office. It may not be used as basis to hold the President
or its representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited
but for the requirement of Senate concurrence, since the President must still ensure that all
treaties will substantively conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21
provides for Senate concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is
not even Congress as a whole that has been given the authority to concur as a means of
checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-
members of the House of Representatives fail to present a “ sufficient showing of need”  that
the information sought is critical to the performance of the functions of Congress, functions
that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective, not
having been done seasonably as it was raised only in their Comment to the present petition
and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the
present petition does not mean that the claim of privilege should not be credited. Petitioners’
position presupposes that an assertion of the privilege should have been made during the
House Committee investigations, failing which respondents are deemed to have waived it.
 When the House Committee and petitioner-Congressman Aguja requested respondents for The Court, however, in its endeavor to guard against the abuse of executive privilege,
copies of the documents subject of this case, respondents replied that the negotiations were should be careful not to veer towards the opposite extreme, to the point that it would strike
still on-going and that the draft of the JPEPA would be released once the text thereof is settled down as invalid even a legitimate exercise thereof.
and complete. There was no intimation that the requested copies are confidential in nature by
reason of public policy. The response may not thus be deemed a claim of privilege by the We respond only to the salient arguments of the Dissenting Opinion which have not yet
standards of Senate v. Ermita, which recognizes as claims of privilege only those which are been sufficiently addressed above.
accompanied by precise and certain reasons for preserving the confidentiality of the
information being sought.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that “it will be turning somersaults
Respondents’ failure to claim the privilege during the House Committee hearings may not, with history to contend that the President is the sole organ for external relations” in that
however, be construed as a waiver thereof by the Executive branch. As the immediately jurisdiction. With regard to this opinion, We make only the following observations:
preceding paragraph indicates, what respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the
There is, at least, a core meaning of the phrase “sole organ of the nation in its external
House Committee itself refrained from pursuing its earlier resolution to issue a
relations” which is not being disputed, namely, that the power to directly negotiate treaties
subpoena duces tecum  on account of then Speaker Jose de Venecia’s alleged request to
and international agreements is vested by our Constitution only in the Executive. Thus, the
Committee Chairperson Congressman Teves to hold the same in abeyance.
dissent states that “Congress has the power to regulate commerce with foreign nations but
does not have the power to negotiate international agreements directly.”62
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to
executive officials—out of respect for their office—until resort to it becomes necessary, the
What is disputed is how this principle applies to the case at bar.
fact remains that such requests are not a compulsory process. Being mere requests, they do
not strictly call for an assertion of executive privilege.
The dissent opines that petitioner-members of the House of Representatives, by asking for
the subject JPEPA documents, are not seeking to directly participate in the negotiations of the
The privilege is an exemption to Congress’ power of inquiry.  So long as Congress itself
59
JPEPA, hence, they cannot be prevented from gaining access to these documents.
finds no cause to enforce such power, there is no strict necessity to assert the privilege. In
this light, respondents’ failure to invoke the privilege during the House Committee
investigations did not amount to a waiver thereof. On the other hand, We hold that this is one occasion where the following ruling in Agan v.
PIATCO63—and in other cases both before and since—should be applied:
The Court observes, however, that the claim of privilege appearing in respondents’
Comment to this petition fails to satisfy in full the requirement laid down in Senate v. “This Court has long and consistently adhered to the legal maxim that those
Ermita  that the claim should be invoked by the President or through the Executive Secretary that cannot be done directly cannot be done indirectly. To declare the PIATCO
“by order of the President.”60 Respondents’ claim of privilege is being sustained, however, its contracts valid despite the clear statutory prohibition against a direct government
flaw notwithstanding, because of circumstances peculiar to the case. guarantee would not only make a mockery of what the BOT Law seeks to prevent—
which is to expose the government to the risk of incurring a monetary obligation resulting
from a contract of loan between the project proponent and its lenders and to which the
The assertion of executive privilege by the Executive Secretary, who is one of the
Government is not a party to—but would also render the BOT Law useless for what it
respondents herein, without him adding the phrase “by order of the President,” shall be
seeks to achieve—to make use of the resources of the private sector in the “financing,
considered as partially complying with the requirement laid down in Senate v. Ermita. The
operation and maintenance of infrastructure and development projects” which are necessary
requirement that the phrase “by order of the President” should accompany the Executive
for national growth and development but which the government, unfortunately, could ill-
Secretary’s claim of privilege is a new rule laid down for the first time in Senate v. Ermita,
afford to finance at this point in time.”64
which was not yet final and executory at the time respondents filed their Comment to the
petition.61 A strict application of this requirement would thus be unwarranted in this case.
Similarly, while herein petitioners-members of the House of Representatives may not have
been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their
Response to the Dissenting Opinion of the Chief Justice
scrutiny—even to the point of giving them access to the offers exchanged between the
Japanese and Philippine delegations—would have made a mockery of what the Constitution
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our sought to prevent and rendered it useless for what it sought to achieve when it vested the
people’s right to information against any abuse of executive privilege. It is a zeal that We fully power of direct negotiation solely with the President.
share.
 What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-
making power of the President, which our Constitution similarly defines, may be gathered from
Hamilton’s explanation of why the U.S. Constitution excludes the House of Representatives
from the treaty-making process:
“x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential to the
proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a
steady and systematic adherence to the same views; a nice and uniform sensibility to national
character, decision, secrecy and dispatch; are incompatible with a body so variable and so
numerous. The very complication of the business by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater length of time which
it would often be necessary to keep them together when convened, to obtain their sanction in
the progressive stages of a treaty, would be source of so great inconvenience and expense, as
alone ought to condemn the project.”65
These considerations a fortiori  apply in this jurisdiction, since the Philippine
Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the
Executive in the making of treaties, but only vests in that body the power to concur in the
validity of the treaty after negotiations have been concluded.66 Much less, therefore, should it
be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject
JPEPA documents would set a precedent for future negotiations, leading to the contravention
of the public interests articulated above which the Constitution sought to protect, the subject
documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets
privilege over the subject JPEPA documents now that negotiations have been concluded, since
their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in
their Comment, necessarily apply only for as long as the negotiations were still pending;
In their Comment, respondents contend that “the negotiations of the representatives of
the Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality.” That respondents liken the documents involved in the
JPEPA negotiations to judicial deliberations and working drafts of opinions evinces,
by itself, that they were claiming confidentiality not only until, but even after, the
conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of opinions,
which are comparable to intra-agency recommendations. Such intra-agency recommendations
are privileged even after the position under consideration by the agency has developed into a
definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose
only definite propositions, and not the inter-agency and intra-agency communications during
the stage when common assertions are still being formulated.67
3. The dissent claims that petitioner-members of the House of Representatives have
sufficiently shown their need for the same documents to overcome the privilege. Again, We
disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its
earlier intention to subpoena the documents. This strongly undermines the assertion that
access to the same documents by the House Committee is critical to the performance of its
legislative functions. If the documents were indeed critical, the House Committee should have,
at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v.
Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion
of individual Congressmen whether to pursue an action or not. Such acts would have served
as strong indicia that Congress itself finds the subject information to be critical to its legislative
functions.
Further, given that respondents have claimed executive privilege, petitioner-members of
the House of Representatives should have, at least, shown how its lack of access to the
Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere
assertion that the JPEPA covers a subject matter over which Congress has the
power to legislate would not suffice.   As Senate Select Committee v. Nixon68 held, the
showing required to overcome the presumption favoring confidentiality turns, not only on the
nature and appropriateness of the function in the performance of which the material was
sought, but also the degree to which the material was necessary to its fulfillment. This
petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives have been
free to use it for any legislative purpose they may see fit. Since such publication, petitioners’
need, if any, specifically for the Philippine and Japanese offers leading to the final version of
the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how disclosing
them after the conclusion of negotiations would impair the performance of its functions. The
contention, with due respect, misplaces the onus probandi. While, in keeping with the general
presumption of transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is able to show that the
documents being sought are covered by a recognized privilege, the burden shifts to the party
seeking information to overcome the privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for
diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their
disclosure would impair the performance of executive functions. It was then incumbent on
petitioner—requesting parties to show that they have a strong need for the information
sufficient to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming
the privilege “by order of the President,” the same may not be strictly applied to the privilege
claim subject of this case.
 When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart even in the
United States from which the concept of executive privilege was adopted. As held in the 2004
case of Judicial Watch, Inc. v. Department of Justice ,69 citing In re Sealed Case,70 “the issue of
whether a President must personally invoke the [presidential communications] privilege
remains an open question.” U.S. v. Reynolds,71 on the other hand, held that “[t]here must be
a formal claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer.”
The rule was thus laid down by this Court, not in adherence to any established precedent,
but with the aim of preventing the abuse of the privilege in light of its highly exceptional
nature. The Court’s recognition that the Executive Secretary also bears the power to invoke
the privilege, provided he does so “by order of the President,” is meant to avoid laying down
too rigid a rule, the Court being aware that it was laying down a new restriction on executive
privilege. It is with the same spirit that the Court should not be overly strict with applying the
same rule in this peculiar instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
implies that the Court therein erred in citing US v. Curtiss-Wright72 and the book entitled The
New American Government and Its Work73 since these authorities, so the dissent claims, may
not be used to calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive
and legislative branches of government, the factual setting thereof was different from that
of PMPF v. Manglapus which involved a collision between governmental power over the
conduct of foreign affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright—a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information—in the course of laying
down a ruling on the public  right to information—only serves to underscore the principle
mentioned earlier that the privileged character accorded to diplomatic negotiations does
not ipso facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not
an executive-legislative conflict, but so did Chavez v. PEA74 which held that “the [public’s] right
to information  . . . does not extend to matters recognized as privileged information under the
separation of powers.” What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the public’s right to information.
Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized
as a valid limitation to that right the same privileged information based on separation of
powers—closed-door Cabinet meetings, executive sessions of either house of Congress, and
the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the
context of an executive-legislative conflict or a citizen’s demand for information, as closely
intertwined, such that the principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely
different criteria in each context, this may give rise to the absurd
result where Congress would be denied access to a particular information because of a claim
of executive privilege, but the general public would have access to the same information,
the claim of privilege notwithstanding.
Absurdity  would be the ultimate result if, for instance, the Court adopts the “clear and
present danger” test for the assessment of claims of privilege against citizens’ demands for
information. If executive information, when demanded by a citizen, is privileged only when
there is a clear and present danger of a substantive evil that the State has a right to prevent,
it would be very difficult for the Executive to establish the validity of its claim in each instance.
In contrast, if the demand comes from Congress, the Executive merely has to show that the
information is covered by a recognized privilege in order to shift the burden on Congress to
present a strong showing of need. This would lead to a situation where it would
be more difficult for Congress to access executive information than it would be for
private citizens.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a “strong
showing of need,” whether that party is Congress or a private citizen.
The rule that the same “showing of need” test applies in both these contexts, however,
should not be construed as a denial of the importance of analyzing the context in which an
executive privilege controversy may happen to be placed. Rather, it affirms it, for it means
that the specific need being shown by the party seeking information in every particular
instance is highly significant in determining whether to uphold a claim of privilege. This
“need” is, precisely, part of the context in light of which every claim of privilege
should be assessed.
Since, as demonstrated above, there are common principles that should be applied to
executive privilege controversies across different contexts, the Court in PMPF v. Manglapus did
not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government
and Its Work could not have taken into account the expanded statutory right to information in
the FOIA assumes that the observations in that book in  support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA. Such assumption is, with
due respect, at best, speculative.
As to the claim in the dissent that “[i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine setting
considering its elevation as a constitutional right,” we submit that the elevation of such right
as a constitutional right did not set it free from the legitimate restrictions of executive privilege
which is itself constitutionally-based.76 Hence, the comments in that book which were cited
in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used “need” as a test to uphold or
allow inroads into rights guaranteed under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the term “need.”
In executive privilege controversies, the requirement that parties present a “sufficient
showing of need” only means, in substance, that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of privilege. 77 Verily, the Court in such
cases engages in a balancing of interests. Such a balancing of interests is certainly not new
in constitutional adjudication involving fundamental rights. Secretary of Justice v.
Lantion,78  which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the “clear and present
danger” test to the present controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in this ponencia and that reflected in the
dissent as to what test to apply.
It would appear that the only disagreement is on the results of applying that test in this
instance.
The dissent, nonetheless, maintains that “it suffices that information is of public concern
for it to be covered by the right, regardless of the public’s need for the information,” and that
the same would hold true even “if they simply want to know it because it interests them.” As
has been stated earlier, however, there is no dispute that the information subject of this case
is a matter of public concern. The Court has earlier concluded that it is a matter of public
concern, not on the basis of any specific need shown by petitioners, but from the very nature
of the JPEPA as an international trade agreement.
However, when the Executive has—as in this case—invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can
a party overcome the same by merely asserting that the information being demanded is a
matter of public concern, without any further showing required? Certainly not, for that would
render the doctrine of executive privilege of no force and effect whatsoever as a limitation on
the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the
documents of the JPEPA negotiations, the Philippine government runs the grave risk of
betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese
government itself. How would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to  release the information because
certain persons simply wanted to know it “because it interests them.”
Thus, the Court holds that, in determining whether an information is covered by the right to
information, a specific “showing of need” for such information is not a relevant consideration,
but only whether the same is a matter of public concern. When, however, the government has
claimed executive privilege, and it has established that the information is indeed covered by
the same, then the party demanding it, if it is to overcome the privilege, must show that that
the information is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decision-making.79
7. The dissent maintains that “[t]he treaty has thus entered the ultimate stage where the
people can exercise their right to participate in the discussion whether the Senate should
concur in its ratification or not.” (Emphasis supplied) It adds that this right “will be diluted
unless the people can have access to the subject JPEPA documents.” What, to the dissent, is a
dilution of the right to participate in decision-making is, to Us, simply a recognition of the
qualified nature of the public’s right to information. It is beyond dispute that the right to
information is not absolute and that the doctrine of executive privilege is a recognized
limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would
be diluted, We reiterate that our people have been exercising their right to participate in the
discussion on the issue of the JPEPA, and they have been able to articulate their different
opinions without need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present controversy,
the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only
the President’s assertion of privilege in the context of a criminal trial, not a civil litigation nor a
congressional demand for information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other contexts. It does not, however,
absolutely mean that the principles applied in that case may never be applied in such
contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services80—which involved former President Nixon’s invocation of
executive privilege to challenge the constitutionality of the “Presidential Recordings and
Materials Preservation Act”81—and the above-mentioned In re Sealed Case which involved a
claim of privilege against a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the
other cases already mentioned, We are merely affirming what the Chief Justice stated in his
Dissenting Opinion in Neri v. Senate Committee on Accountability82—a case involving an
executive-legislative conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the President’s generalized interest
in confidentiality and congressional demands for information, “[n]onetheless the [U.S.]
Court laid down principles and procedures that can serve as torch lights to illumine
us on the scope and use of Presidential communication privilege in the case at
bar.”83 While the Court was divided in Neri, this opinion of the Chief Justice was not among
the points of disagreement, and We similarly hold now that the Nixon case is a useful guide in
the proper resolution of the present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it
should also give full recognition to the validity of the privilege whenever it is
claimed within the proper bounds of executive power, as in this case.   Otherwise, the
Court would undermine its own credibility, for it would be perceived as no longer aiming to
strike a balance, but seeking merely to water down executive privilege to the point of
irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the
JPEPA has become moot and academic, it having been made accessible to the public since
September 11, 2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents’ claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the
reasons proffered by petitioners against the application of the ruling therein to the present
case have not persuaded the Court. Moreover, petitioners—both private citizens and members
of the House of Representatives—have failed to present a “ sufficient showing of need”  to
overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the present
petition, and not during the hearings of the House Special Committee on Globalization, is of no
moment, since it cannot be interpreted as a waiver of the privilege on the part of the
Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the
ruling in Senate v. Ermita that executive privilege should be invoked by the President or
through the Executive Secretary “by order of the President.”
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Quisumbing, Corona, Chico-Nazario, Velasco, Jr., Nachura, Reyes  and Leonardo-De
Castro, JJ.,  concur.
Puno (C.J.),  See Dissenting Opinion.
Ynares-Santiago, J.,  I join C.J.’s dissenting opinion.
Carpio, J.,  See Concurring Opinion.
Austria-Martinez, J.,  I join in the dissenting opinion of Chief Justice.
Azcuna, J.,  I dissent in a separate opinion.
Tinga, J.,  In the result. See separate opinion.
Brion, J.,  No part.
CONCURRING OPINION
CARPIO, J.:
I concur with the ponencia of Justice Conchita Carpio-Morales on the following grounds:
1. Offers and counter-offers between States negotiating a treaty are expected by the
negotiating States to remain confidential during the negotiations prior to the signing of the
treaty. There is no dispute on this.
2. After the signing of the treaty, the public disclosure of such offers and counter-offers
depends on the consent of both negotiating States. A State may wish to keep its offers and
counter-offers confidential even after the signing of the treaty because it plans to negotiate
similar treaties with other countries and it does not want its negotiating positions known
beforehand by such other countries. The offers and counter-offers of a negotiating State
usually include references to or discussions of the offers and counter-offers of the other
negotiating State. Hence, a negotiating State cannot decide alone to disclose publicly its own
offers and counter-offers if they refer to or discuss the offers and counter-offers of the other
negotiating State.
3. If the Philippines does not respect the confidentiality of the offers and counter-offers
of its negotiating partner State, then other countries will be reluctant to negotiate in a candid
and frank manner with the Philippines. Negotiators of other countries will know that Philippine
negotiators can be forced to disclose publicly offers and counter-offers that their countries
want to remain confidential even after the treaty signing. Thus, negotiators of such countries
will simply repeat to Philippine negotiators offers and counter-offers that they can disclose
publicly to their own citizens, which offers and counter-offers are usually more favorable to
their countries. This denies to Philippine negotiators the opportunity to hear, and explore,
other more balanced offers or counter-offers from negotiators of such countries. A writer on
diplomatic secrets puts it this way:
“x x x Disclosure of negotiating strategy and goals impairs a party’s ability to negotiate the
most favorable terms, because a negotiating party that discloses its minimum demands
insures that it will get nothing more than the minimum. Moreover, those involved in the
practice of negotiations appear to be in agreement that publicity leads to ‘grandstanding,’
tends to freeze negotiating positions, and inhibits the give-and-take essential to successful
negotiation. As Sissela Bok points out, if ‘negotiators have more to gain from being approved
by their own sides than by making a reasoned agreement with competitors or adversaries,
then they are inclined to ‘play to the gallery . . . .’ In fact, the public reaction may leave them
little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness
for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader
who stated publicly a willingness to remove Israel’s existing settlements from Judea and
Samaria in return for peace.”1
4. In the present case, at least one negotiating State—the Philippines—does not want to
disclose publicly the offers and counter-offers, including its own. The Philippines is expected to
enter into similar treaties with other countries. The Court cannot force the Executive branch to
telegraph to other countries its possible offers and counter-offers that comprise our
negotiating strategy. That will put Philippine negotiators at a great disadvantage to the
prejudice of national interest. Offers and counter-offers in treaty negotiations are part of
diplomatic secrets protected under the doctrine of executive privilege. Thus, in United States
v. Curtiss-Wright,2 the leading case in American jurisprudence on this issue, the U.S. Supreme
Court, quoting with approval a letter of President George Washington, held:
“x x x Indeed, so clearly is this true that the first President refused to accede to a request to
lay before the House of Representatives the instructions, correspondence and documents
relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was
recognized by the House itself and has never since been doubted. In his reply to the
request, President Washington said:
The nature of foreign negotiations requires caution, and their success must often
depend on secrecy; and even when brought to a conclusion a full disclosure of all the
measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic; for this might have a pernicious
influence on future negotiations, or produce immediate inconveniences,
perhaps danger and mischief, in relation to other powers. The necessity of
such caution and secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the Senate, the principle on
which that body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign power would be to
establish a dangerous precedent.” (Emphasis supplied)
5. The negotiation of treaties is different from the awarding of contracts by government
agencies. In diplomatic negotiations, there is a traditional expectation that the offers and
counter-offers of the negotiating States will remain confidential even after the treaty signing.
States have honored this tradition and those that do not will suffer the consequences. There is
no such expectation of keeping confidential the internal deliberations of government agencies
after the awarding of contracts.
6. However, in the ratification of a treaty, the Senate has the right to see in executive
session,  the offers and counter-offers made in the treaty negotiations even in the absence of
consent from our treaty partner State. Otherwise, the Senate cannot examine fully the wisdom
of the treaty. In the present case, however, the Senate is not a party.
Accordingly, I vote to DISMISS the petition.
SEPARATE DISSENTING OPINION
AZCUNA, J.:
I fully agree with the Dissenting Opinion of Chief Justice Reynato S. Puno.
The ponencia regrettably assumes that the power of Congress, when it investigates, is
either in aid of legislation or by way of oversight. What appears to have been forgotten is an
equally important and fundamental power and duty of Congress and that is its informing
function by way of investigating for the purpose of enlightening the electorate.
Arthur M. Schlesinger, in THE IMPERIAL PRESIDENCY, aptly quotes Wilson on
CONGRESSIONAL GOVERNMENT on this power:
“Congress’s “only whip,” Wilson said, “is investigation,” and that “the chief purpose of
investigation, even more than the direction of affairs, was the enlightenment of the electorate.
The inquisitiveness of such bodies as Congress is the best conceivable source of information . .
. . The informing function of Congress should be preferred even to its legislative function.” For
“the only really self-governing people is that people which discusses and interrogates its
administration.”1
This is all the more compelling in our polity because our Constitution is replete and
suffused with provisions on transparency, accountability and the right of the people to know
the facts of governance, as pointed out by the Chief Justice. Neither is the Philippines the only
country that has done this. Only last year, 2007, Mexico amended its Constitution to raise to
the level of a fundamental right the public’s right to know the truth, thereby providing that:
“All information in the possession of any federal, state and municipal authority, entity, body or
organization is public x x x x.” The amendment reads:
The Amendment to Article 6 of the Constitution
The Permanent Commission of the Honorable Congress, in full use of the power bestowed
on it by Article 135 of the Constitution, and after approval by both the Chamber of Deputies
and the Senate of Mexico, as well as the legislatures, decrees:
A second paragraph with seven subsections is hereby added to Article 6 of the Mexican
Constitution.
Single Article. A second paragraph with seven subsections is added to Article 6 of the
Mexican Constitution, which will now read as follows:
Article 6 . . .
 For purposes of the exercise of the right to access to information, the federal
government, the states of the Federal District, each in their respective jurisdictions,
will comply with the following principles and bases:
I. All information in the possession of any federal, state and municipal authority,
entity, body and organism [organs] is public and may only be temporarily withheld in
the public interest in accordance with legislation. In interpreting this right, the
principle of the maximum public-ness must prevail.
II. Information referring to individual’s private lives and personal data shall be
protected as stipulated in and with the exceptions established by law.
III. Without having to show any involvement in the topic or justify its use, all
individuals will have access, free of charge, to public information, his/her personal
data, or to the rectification of said data.
IV. Mechanisms for access and expeditious review procedures shall be
established. These procedures will be substantiated before specialized, impartial
bodies with operational, managerial and decision-making autonomy.
V. Entities herein mandated shall preserve their documents in updated
administrative archives and shall publish in the available electronic media complete,
updated information about their management indicators and the exercise of public
resources.
VI. Legislation will determine the manner in which those mandated to comply will
make public the information about public resources given to individuals or entities.
VII. Incompliance [Noncompliance] with the stipulations regarding access to
public information will be sanctioned accordingly to the law.
TRANSITORY ARTICLES
First. The present Decree shall go into effect the day after its publication in the Official
Federal Gazette.
Second. The federal government, the states and the Federal District, in their respective
jurisdictions, shall issue legislation about access to public information and transparency, or
make the necessary changes no later than one year after this Decree goes into effect.
Third. The federal government, the states and the Federal District must establish electronic
systems so that any person can use from a distance the mechanisms for access to information
and the review procedures mentioned in this Decree. Said systems must be functioning no
later than two years after the Decree goes into effect. State laws shall establish whatever is
needed for municipalities with more than 60,000 inhabitants and the territorial sub-divisions of
the Federal District to have their own electronic systems within that same period of time.”
[Emphasis supplied.]2
Transparency is in fact the prevalent trend and non-disclosure is the diminishing exception.
The reason lies in the recognition under international law of the fundamental human right of a
citizen to take part in governance, as set forth in the 1948 United Nations Universal
Declaration of Human Rights, a right that cannot be realized without access to information.
And even in the United States from where the privilege originated no President has
claimed a general prerogative to withhold but rather the Executive has claimed particular
exceptions to the general rule of unlimited executive disclosure:
“Conceding the idea of Congress as the grand inquest of the nation, Presidents only
claimed particular exceptions to the general rule of unlimited executive disclosures—
Washington, the protector of the exclusive constitutional jurisdiction of one house of Congress
against invasion by the other house; Jefferson, the protector of presidential relationship within
the executive branch and the defense of that branch against congressional harassment;
Taylor, the protection of ongoing investigation and litigation; Polk, the protection of state
secrets in intelligence and negotiation. While exceptions might accumulate, no President had
claimed a general and absolute prerogative to withhold.”3
The President, therefore, has the burden to show that a particular exception obtains in
every case where the privilege is claimed. This has not been done in the present case. All that
the Senate is asking for are copies of the starting offers of the Philippines and of Japan. What
is the deep secret in those papers? If the final product is and has been disclosed, why cannot
the starting offers be revealed? How can anyone, the Senate or the electorate included,
fathom—to use the favorite word of a counsel—the end product if one is not told the starting
positions?
Furthermore, Executive Secretary Ermita did not really invoke the privilege. All he said was
that, at the time of the request, negotiations were on-going, so that it was difficult to
provide all the papers relative to the proposed Treaty (which was then the request of the
Senate). He did not say it was privileged or secret or confidential but that it was difficult at the
time to comply with the request as the Executive understandably had its hands full in the
midst of the negotiations.
Now the negotiations are over. The proposed treaty has been signed and submitted to the
Senate for ratification. There is no more difficulty in complying with the now reduced request
of giving copies of the starting offers of the Philippines and of Japan.
Since the privilege is an exception to the rule, it must be properly, seasonably and clearly
invoked. Otherwise, it cannot be applied and sustained.
Finally, as Ex parte Milligan4 sums it:
“A country preserved at the sacrifice of all the cardinal principles of liberty is not worth the
cost of preserving.”5
I vote to compel disclosure of the requested documents.
 information belongs to the public record would diminish a nation’s bargaining power in the
negotiation of treaties. This truth may be borne moreso out of realpolitik, rather then the
SEPARATE OPINION prevalence of a pristine legal principle, yet it is a political reality which this Court has to
contend with since it redounds to the ultimate wellbeing of the Philippines as a sovereign
nation. On the premise that at least a significant majority of the most relevant players in the
TINGA, J.:
international scene adhere to the basic confidentiality of treaty negotiations no matter the
domestic implications of such confidentiality, then it can only be expected that such nations
The dissent of our eminent Chief Justice raises several worthy points. Had the present will hesitate, if not refuse outright,to negotiate treaties with countries which do not respect
question involved the legislative consideration of a domestic enactment, rather than a bilateral that same rule.
treaty submitted for ratification by the Senate, I would have no qualms in voting to grant the
petition. However, my vote to dismiss the petition, joining in the result of the ponencia  of the
The Dissenting Opinion does strive to establish that in certain countries such as the United
esteemed Justice Morales, is due to my inability to blithely disregard the diplomatic and
States, the United Kingdom, Australia and New Zealand, there is established a statutory right
international ramifications should this Court establish a rule that materials relevant to treaty
to information that allows those states’ citizens to demand the release of documents pertinent
negotiations are demandable as a matter of right. The long-standing tradition of respecting
to public affairs. However, even the dissent acknowledges that in the United Kingdom for
the confidentiality of diplomatic negotiations is embodied in the rule according executive
example, “confidential information obtained from a State other than the United Kingdom” or
privilege to diplomatic secrets.
information that would be likely to prejudice relations between the United Kingdom and other
countries are exempt from its own Freedom of Information Act of 2000. It is impossible to
The ponente engages in a thorough and enlightening discussion on the importance and vitality conclude, using the examples of those countries, that there is a general presumptive right to
of the diplomatic secrets privilege, and points out that such privilege, which is a specie of access documents relevant to diplomatic negotiations.
executive privilege, serves to balance the constitutional right to information invoked in this
case. If I may add, in response to the Dissenting Opinion which treats the deliberative process
It would be a different matter if the petitioners or the dissent were able to demonstrate
privilege as “a distinct kind of executive privilege” from the “diplomatic secrets privilege,”
that a significant number of nations have adopted a paradigm that incorporates their treaty
notwithstanding the distinction, both deliberative process privilege and diplomatic secrets
negotiations into the public record out of recognition of the vital right to information,
privilege should be jointly considered if the question at hand, as in this case, involves such
transparency, good governance, or whatever national interest revelation would promote; or
diplomatic correspondences related to treaty negotiations. The diplomatic character of such
that there is an emerging trend in international law that recognizes that treaty negotiations
correspondences places them squarely within the diplomatic secrets privilege, while the fact
are not privileged in character, or even if so, that the privilege is of such weak character that it
that the ratification of such treaty will bestow on it the force and effect of law in the
may easily be overcome. If either circumstance was established, it would be easier to adopt
Philippines also places them within the ambit of the deliberate process privilege. Thus, it
the position of the dissent, which admirably attempts to infuse full vitality into the
would not be enough to consider the question of privilege from only one of those two
constitutional rights of the people, as it would assure that such constitutional affirmation
perspectives, as both species of executive privilege should be ultimately weighed and applied
would not come at the expense of the country’s isolation from the community of nations.
in conjunction with each other.

Unfortunately, neither the Dissenting Opinion nor the petitioners herein, have attempted to
In ascertaining the balance between executive privilege and the constitutional right to
engage such perspective. A cursory inquiry into foreign jurisprudence and international law
information in this case, I likewise consider it material to consider the implications had the
does not reveal that either of the two trends exist at the moment. In the United Kingdom, the
Court established a precedent that would classify such documents relating to treaty
concept of State interest immunity (formerly known as “Crown Privilege”) guarantees that
negotiations as part of the public record since it is encompassed within the constitutional right
information, the disclosure of which would be prejudicial to the interests of the State, may not
to information. The Dissenting Opinion is unfortunately unable to ultimately convince that
be disclosed. In the Corfu Channel Case,1 the International Court of Justice affirmed the
establishing such a general rule would not set the Philippines so far apart from the general
United Kingdom’s refusal to turn over certain documents relevant to its dispute with Albania
practice of the community of nations. For if indeed the Philippines would become unique
on the ground of national security. In Australia, the Attorney General’s certification that
among the governments of the world in establishing that these correspondences related to
information may not be disclosed for the reason that it would prejudice the security, defense
treaty negotiations are part of the public record, I fear that such a doctrine would impair the
or international relations of Australia is authoritative and must be adhered to by the court.2
ability of the Philippines to negotiate treaties or agreements with foreign countries. The
Philippines would become isolated from the community of nations, and I need not expound on
the negative and destabilizing implications of such a consequence. According to commentaries on the law on evidence in Pakistan, “if the privilege is claimed
on the ground that the document relates to the affairs of the State which means maters of
public nature in which a State is concerned and disclosure of which will be prejudicial to public
It should be expected that national governments, including our own, would insist on
interest or endangers national defense or is detrimental to good diplomatic relations then the
maintaining the presumptive secrecy of all documents and correspondences relating to treaty
general rule [of judicial review] ceases to apply and the Court shall not inspect the document
negotiations. Such approach would be maintained upon no matter how innocuous, honest or
or show it to the opposite party unless the validity of the privilege claimed is determined.”3
above-board the privileged information actually is, since an acknowledgment that such
 The International Criminal Tribunal for the former Yugoslavia, in a decision dated 18 July
1997, did recognize an international trend that in cases where national security or state
secrets privilege is invoked, the courts may nonetheless assess the validity of the claim, thus
requiring the disclosure of such documents to the courts or its designates. 4 Nonetheless,
assuming that such a ruling is indicative of an emerging norm in international law, it only
establishes that the invocation of state secrets cannot be taken at face value but must be
assessed by the courts. The Dissenting Opinion implicitly goes further and establishes that
documents involved in diplomatic negotiations relating to treaty agreements should form part
of the public record as a consequence of the constitutional right to information. I would have
been more conformable to acknowledge such a doctrine if it is supported by a similar trend in
foreign jurisprudence or international law.
Where the contracting nations to a treaty share a common concern for the basic
confidentiality of treaty negotiations it is understandable that such concern may evolve unto a
firm norm of conduct between them for as long as no conflict between them in regard to the
treaty emerges. Thus, with respect to the subject treaty the Government of the Philippines
should expectedly heed Japan’s normal interest in preserving the confidentiality of the treaty
negotiations and conduct itself accordingly in the same manner that our Government expects
the Japanese Government to observe the protocol of confidentiality.
Even if a case arises between the contracting nations concerning the treaty it does not
necessarily follow that the confidentiality of the treaty negotiations may be dispensed with and
looked into by the tribunal hearing the case, except for the purposes mentioned in Article 32
of the Vienna Convention of the Law of Treaties. The Article provides:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leaves to a result which is manifestly absurd or unreasonable. 
The aforequoted “preparatory work” or travaux preparatiores  may be used either to
confirm the meaning of the treaty or as an aid to interpretation where, following the
application of Article 32, the meaning is ambiguous or obscure or leads to a result which is
manifestly absurd or unreasonable.5 The article may be limited in design as a rule in the
interpretation of treaties.
Moreover, it is less clear what exactly classifies documents or correspondences as
“preparatory work.” Should such preparatory work have been cleared for disclosure by the
negotiating countries? In 1995, the International Court of Justice, in Qatar v. Bahrain,6 dealt
with Bahrain’s claim that following Article 32, the ICJ should adopt its theory concerning a
territorial dispute based on the text of a documents headed “Minutes” signed at Doha on 25
December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia. While
the ICJ ultimately rejected Bahrain’s contention on the ground that such minutes could not
provide conclusive supplementary elements for the interpretation of the text adopted, it is
useful to dwell on the fact that such a document classified as “preparatory work” was, at the
very least, expressly approved by the negotiating parties through their Foreign Ministers.
In the case at bar, it appears that the documents which the petitioners are particularly
interested in their disclosure are the various drafts of the JPEPA. It is not clear whether such
drafts were ever signed by the Philippine and Japanese governments, or incorporated in
minutes or similar documents signed by the two governments. Even assuming that they were
signed but without any intention to release them for public documentation, would such
signatures already classify the minutes as part of “preparatory work” which, following the
Vienna Convention, provides supplementary means of interpretation and should logically be
within the realm of public disclosure? These are manifestly difficult questions which
unfortunately, the petitioners and the Dissenting Opinion did not adequately address.
Finally, I wish to add that if the petitioner in this case is the Senate of the Philippines, and
that it seeks the requested documents in the process of deliberating on the ratification of the
treaty, I will vote for the disclosure of such documents, subject to mechanisms such as in
camera inspection or executive sessions that would have accorded due regard to executive
privilege. However, the reason behind such a position will be based not on the right to
information, but rather, on the right of the Senate to fully exercise its constituent function of
ratifying treaties.
DISSENTING OPINION
PUNO, C.J.:
Some 22,000 years ago, the homo sapiens in the Tabon caves of Palawan gathered food,
hunted, and used stone tools to survive. Advancing by thousands of years, the early
inhabitants of our land began to trade with neighboring countries. They exchanged wax,
rattan, and pearls for porcelain, silk, and gold of China, Indo-China, and Malaysia. 1 The 16th
century then ushered in the galleon trade between Manila and Acapulco. The 1700s saw the
genesis of the Filipino trading with the British, followed by the German and the French in the
1800s. The 1900s opened commerce between the Philippines and the United States of
America.2 Today, with the onset of globalization of the economy and the shrinking of the world
through technology, a far more complicated international trade has become a matter of
survival—much like gathering food and hunting 22,000 years ago—to both countries and
individuals.
 The growth and development envisioned by globalization are premised on the proposition
that the whole world economy would expand and become more efficient if barriers and
protectionist policies are eliminated. Expansion will happen as each country opens its doors to
every other producer, and more efficient producers start to compete successfully with
countries that produce at higher costs because of special protections that domestic laws and
regulations provide. Smaller countries and small enterprises will then concentrate their
resources where they can be most competitive. The logic is that ultimately, the individual
consumer will benefit and lower cost will stimulate consumption, thus increasing trade and the
production of goods and services where it is economically advantageous.3
Not a few world leaders, however, have cautioned against the downside of globalization.
Pope John Paul II observed that “(g)lobalization has also worked to the detriment of the poor,
tending to push poorer countries to the margin of international economic and political
relations. Many Asian nations are unable to hold their own in a global market
economy.”4 Mahatma Gandhi’s words, although referring to infant industrialization, are
prescient and of similar import: “The world we must strive to build needs to be based on the
concept of genuine social equality . . . economic progress cannot mean that few people charge
ahead and more and more are left behind.”
The key to resolving the decisive issue in the case at bar turns on the proper framework of
analysis. The instant case involves primarily not an assessment of globalization and
international trade or of the extent of executive privilege in this global arena, but a valuation
of the right of the individual and his representatives in Congress to participate in
economic governance. Economic decisions such as forging comprehensive free trade
agreements impact not only on the growth of our nation, but also on the lives of individuals,
especially those who are powerless and vulnerable in the margins of society.
First, the facts.
In 2002, Japanese Prime Minister Junichiro Koizumi introduced the “Initiative for Japan-
ASEAN Comprehensive Economic Partnership.”5 President Gloria Macapagal-Arroyo proposed
the creation of a working group to study the feasibility of an economic partnership with
Japan.6 In October of that year, the Working Group on the Japan-Philippine Economic
Partnership Agreement (JPEPA) was formed, consisting of representatives from concerned
government agencies of the Philippines and Japan. It was tasked to study the possible
coverage and content of a mutually beneficial economic partnership between the two
countries.7
On 28 May 2003, the Philippine Coordinating Committee (PCC), composed of
representatives from eighteen (18) government agencies, was created under Executive Order
No. 213. It was tasked to negotiate with the Japanese representatives on the proposed JPEPA,
conduct consultations with concerned government and private sector representatives, and
draft a proposed framework for the JPEPA and its implementing agreements.8
In June 2003, the Working Group signified that both countries were ready to proceed to
the next level of discussions and thus concluded its work. The Joint Coordinating Team (JCT)
for JPEPA, composed of representatives from concerned government agencies and the private
sector, was then created.9
On 11 December 2003, Prime Minister Koizumi and President Macapagal-Arroyo agreed
that the Japanese and Philippine governments should start negotiations on JPEPA in 2004
based on the discussions and outputs of the Working Group and the Joint Coordinating Team.
In February 2004, negotiations on JPEPA commenced.10
On 25 January 2005, petitioners Congressman Lorenzo R. Tañada III and Congressman
Mario Joyo Aguja jointly filed House Resolution No. 551, “Directing the Special
Committee on Globalization to Conduct an Urgent Inquiry in Aid of Legislation on
Bilateral Trade and Investment Agreements that Government Has Been Forging,
with Far Reaching Impact on People’s Lives and the Constitution But with Very
Little Public Scrutiny and Debate.”11 In the course of the inquiry conducted by the Special
Committee on Globalization (Committee), respondent DTI Undersecretary Thomas G. Aquino
was requested to furnish the Committee a copy of the latest draft of the JPEPA. Respondent
Undersecretary Aquino was the Chairperson of the PCC. He did not accede to the request.12
 On 10 May 2005, Congressman Herminio G. Teves, as Chairperson of the Special
Committee on Globalization, wrote to respondent Executive Secretary Eduardo Ermita,
requesting that the Committee be furnished all documents on the JPEPA, including the latest
drafts of the agreement, the requests and the offers. 13 Executive Secretary Ermita wrote
Congressman Teves on 23 June 2005, informing him that the DFA would be unable to
furnish the Committee all documents on the JPEPA, since the proposed agreement
“has been a work in progress for about three years.” He also said that a copy of the
draft agreement would be forwarded to the Committee “as soon as the text thereof
is settled and complete.”14
On 1 July 2005, petitioner Congressman Aguja, as member of the Committee, wrote NEDA
Director-General Romulo Neri and respondent Tariff Commission Chairperson Abon to request
copies of the latest text of the JPEPA. Respondent Chairperson Abon wrote petitioner
Congressman Aguja on 12 July 2005 that the former did not have a copy of the document
being requested. He also stated that “the negotiation is still ongoing” and that he was certain
respondent Undersecretary Aquino would provide petitioner Congressman Aguja a copy “once
the negotiation was completed.”15 For its part, NEDA replied through respondent Assistant
Director-General Songco that petitioner Congressman Aguja’s request had been forwarded to
the office of respondent Undersecretary Aquino, who would be in the best position to respond
to the request.16
In view of the failure to furnish the Committee the requested document, the Committee
resolved to subpoena the records of the DTI with respect to the JPEPA. However, House
Speaker Jose de Venecia requested the Committee to hold the subpoena in abeyance, as he
wanted to secure first the consent of President Macapagal-Arroyo to furnish the Committee a
copy of the JPEPA.17
 On 25 October 2005, petitioner Congressman Aguja, as member of the Committee, wrote
to the individual members of the PCC, reiterating the Committee’s request for an update on
the status of the JPEPA negotiations, the timetable for the conclusion and signing of the
agreement, and a copy of the latest working draft of the JPEPA. 18 None of the members
provided the Committee the requested JPEPA draft. In his letter dated 2 November 2005,
respondent Undersecretary Aquino replied that the Committee would be provided the
latest draft of the agreement “once the negotiations are completed and as soon as
a thorough legal review of the proposed agreement has been conducted.”19
As the Committee has not secured a copy of the full text of the JPEPA and its attachments
and annexes despite the Committee’s many requests, petitioners filed the instant Urgent
Petition for Mandamus and Prohibition on 9 December 2005. They pray that the Court (1)
order respondents to provide them the full text of the JPEPA, including the Philippine and
Japanese offers and all pertinent attachments and annexes thereto; and (2) restrain
respondents from concluding the JPEPA negotiations, signing the JPEPA, and transmitting it to
the President until said documents have been furnished the petitioners.
On 17 May 2006, respondents filed their Comment. Petitioners filed their Reply on 5
September 2006.
On 11 September 2006, a certified true copy of the full text of the JPEPA signed by
President Macapagal-Arroyo and Prime Minister Koizumi with annexes and the
implementing agreement was posted on the website of the Department of Trade and Industry
and made accessible to the public.20 Despite the accessibility of the signed full text of
the JPEPA, petitioners reiterated in their Manifestation and Motion filed on 19 September
2007 their prayer that respondents furnish them copies of the initial offers (of the Philippines
and of Japan) of the JPEPA, including all pertinent attachments and annexes thereto, and
the final text of the JPEPA prior to signing by the President (the “subject JPEPA
documents”).21
I respectfully submit that the ponencia overlooks the fact that it is the final text of the
JPEPA prior to its signing by the President that petitioners seek to access when
the ponencia holds at the outset, viz.:
 “Considering, however, that “[t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two States parties,”
(Reply to the Comment of the Solicitor General, rollo, p. 319 [underscoring supplied]) public
disclosure of the text of the JPEPA after its signing by the President, during the
pendency of the present petition, has been largely rendered moot and academic.
x x x   x x x   x x x
The text of the JPEPA having been made accessible to the public, the petition has become
moot and academic to the extent that it seeks the disclosure of the “full text”
thereof.”22 (emphasis supplied)
Thus, insofar as petitioners’ access to the final text of the JPEPA prior to signing by the
President is concerned, the ponencia failed to include the same among the issues for the
Court to resolve.
The issues for resolution in the case at bar are substantive and procedural, viz.:
I. Do petitioners have standing to bring this action for mandamus in their
capacity as citizens of the Republic, taxpayers and members of Congress?
II. Does the Court have jurisdiction over the instant petition?
III. Do petitioners have a right of access to the documents and information being
requested in relation to the JPEPA?
IV. Will petitioners’ right to effective participation in economic decision-making be
violated by the deferral of the public disclosure of the requested documents until such
time that the JPEPA has been concluded and signed by the President?
I shall focus on the jugular issue of whether or not petitioners have a right of access to the
subject JPEPA documents. Let me first take up petitioners’ demand for these documents
as members of the House of Representatives.
I. The context: the question of access of the membersof the  House of
Representatives to the subject JPEPA documents is raised in relation
to international trade agreement negotiations
In demanding the subject JPEPA documents, petitioners suing as members of the
House of Representatives invoke their power over foreign trade under Article VI,
Section 28 (2) of the 1987 Constitution which provides, viz.:
“Sec. 28 (2). The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development program of the Government.”
(emphasis supplied)
Respondents, on the other hand, deny petitioners’ demand for information by contending that
the President is the sole organ of the nation in external relations   and has sole
authority  in the negotiation of a treaty; hence, petitioners as members of the House
of Representatives   cannot have access to the subject JPEPA documents.23 On closer
examination, respondents’ contention can be reduced into two claims: (1) the executive
has sole authority in treaty negotiations, hence, the House of Representatives has no power
in relation to treaty negotiations; and (2) the information and documents used by the
executive in treaty negotiations are confidential.
To buttress their contention, which the ponencia upholds, respondents rely on United
States v. Curtiss-Wright Export Corporation,24 a case that has become a classic authority on
recognizing executive primacy or even exclusivity in foreign affairs in the U.S.25 and in the
Philippines.26 They also cite People’s Movement for Press Freedom (PMPF) v.
Manglapus, the only Philippine case wherein the Court, in an unpublished
Resolution, had occasion to rule on the issue of access to information on treaty
negotiations. PMPF v. Manglapus extensively quoted Curtiss-Wright, viz.:
“In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress
itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in
the House of Representatives, ‘The President is the sole organ of the nation in its
external relations,  and its  sole representative with foreign nations.’ Annals, 6th
Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history
(February 15, 1816), reported to the Senate, among other things, as follows:
‘The President is the constitutional representative of the United States with regard to
foreign nations. He manages our concerns with foreign nations and must necessarily be most
competent to determine when, how, and upon what subjects negotiation may be urged with
the greatest prospect of success. For his conduct he is responsible to the Constitution. The
committee considers this responsibility the surest pledge for the faithful discharge of his duty.
They think the interference of the Senate in the direction of foreign negotiations calculated to
diminish that responsibility and thereby to impair the best security for the national safety. The
nature of transactions with foreign nations, moreover, requires caution and unity
of design, and their success frequently depends on secrecy and dispatch.’  8 U.S.
Sen. Reports Comm. on Foreign Relations, p. 24.
It is important to bear in mind that we are here dealing not alone with an authority
vested in the President by an exertion of legislative power, but with such an
authority plus the very delicate, plenary and exclusive power of the President as
the sole organ of the federal government in the field of international relations—a
power which does not require as a basis for its exercise an act of Congress, but
which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It is quite apparent
that if, in the maintenance of our international relations, embarrassment—perhaps serious
embarrassment—is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field
must often accord to the Presi-578
578 SUPREME COURT REPORTS ANNOTATED
Akbayan Citizens Action Party ("AKBAYAN") vs. Aquino
dent a degree of discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign countries, and especially is this
true in time of war. He has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in respect of information
gathered by them may be highly necessary, and the premature disclosure of it
productive of harmful results. Indeed, so clearly is this true that the first President refused
to accede to a request to lay before the House of Representatives the instructions,
correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the
wisdom of which was recognized by the House itself and has never since been
doubted.”27 (emphasis supplied)
In examining the validity of respondents’ contention and the ponencia’s affirmation
thereof, that the executive has sole authority in treaty negotiations, and that information
pertaining to treaty negotiations is confidential, let me begin by tracing respondents’ and
the ponencia’s steps back to U.S. jurisdiction as they heavily rely on Curtiss-Wright,
which was quoted in PMPF v. Manglapus, for their position.
In the U.S., there is a long-standing debate on the locus of the primary or even exclusive
power over foreign affairs.28 Ironically,  while Curtiss-Wright is considered a most influential
decision on asserting presidential primacy in foreign affairs, the issue in that case was the
validity of Congress’ delegation of its foreign affairs power   to the President; President
Franklin D. Roosevelt ordered an embargo on ammunition sales to two South American
countries in execution of a Joint Resolution of Congress. Towards the end of
the ponencia, Justice Sutherland stated that “it was not within the power of the President to
repeal the Joint Resolution.”29 The oft-quoted “sole organ” remark in Curtiss-Wright has not
a few times been regarded in the U.S. as dictum in that case. 30 I make this observation to
caution against over-reliance on Curtiss-Wright, but the case at bar is not the occasion to
delve into and settle the debate on the locus of the primary power in the broad area of foreign
affairs. In this vast landscape, I shall limit my view only to the subject matter of the instant
case—the openness or secrecy of treaty negotiations and, more particularly, of
trade agreement negotiations.
Aside from the fact that Curtiss-Wright did not involve treaty negotiations, much
less trade agreement negotiations, that case was decided in 1936 or more than 70 years
ago. Since then, the dynamics of the allocation of power over international trade
agreements between the executive and the legislature has dramatically
changed.  An appreciation of these developments would provide a useful backdrop in
resolving the issue of access to the subject JPEPA documents.
A. Negotiation of trade agreements:
the question of power allocation between
the executive and Congress in U.S. jurisdiction
The U.S. constitution is a good place to start in understanding the allocation of power over
international trade agreements between the executive and the legislative branches of
government.
 Article II of the U.S. Constitution grants the President the power to make treaties, but only
with the approval of a super-majority of the Senate. 31 Under Article I, Congress has the power
to regulate foreign trade,32 including the power to “lay and collect Taxes, Duties, Imposts and
Excises.”33
While the drafters of the U.S. Constitution discussed the commerce power and the power
to make treaties,34 there is scant information on how they intended to allocate the powers of
foreign commerce between the political branches of government. 35 “The well-recognized utility
of Congressional involvement in treaty and international agreement negotiation applies with
even greater force when it comes to international trade. For here, the making of
international agreements intersects with the Constitution’s express grant of
authority to Congress to regulate commerce with foreign nations.” (emphasis
supplied)36
The drafters of the Constitution gave the President power to negotiate because of the need to
demonstrate clear leadership and a unified front when dealing with other nations.37
The Senate was given the power to ratify treaties because, as the more “contemplative”
arm of the legislature, it was less subject to short-term interests than the House while still
directly representing the interests of the people.38 Congress was granted the power to set
tariffs and to regulate commerce in order to check the powers of the Executive.39
Thus, under the U.S. Constitution, the President has the power to negotiate international
treaties, but does not have the constitutional authority to regulate commerce or to determine
tariffs and duties. On the other hand, Congress has the power to regulate commerce with
foreign nations, but does not have the power to negotiate international agreements
directly.40 That there is a question on the demarcation of powers between the
President and Congress in international trade agreements cannot escape the
eye. Throughout U.S. history, answers to this question have come in various permutations.
In the late 1700s, after the U.S. established its independence, it had a weak military and
relied on trade policies to maintain its independence and guard its national security through
restriction of imports or exports with offending great powers. 41 Congress implemented these
trade policies through legislation42 and ratification of commercial treaties negotiated by the
President.43 This continued in the 1800s—the President negotiated treaties, including
trade treaties, and secured the requisite Senate concurrence.44
But beginning in the 1920s, Congress began to reassert its power over the
development of international trade policy. 45 It began passing protectionist legislation to
respond to pressure from domestic industries and agriculture. 46 In 1930, Congress passed the
Smoot-Hawley Tariff Act of 1930,47 which increased tariffs to an average of fifty-three percent
and increased the number of products subject to duties.48 In retaliation, other countries
quickly subjected the U.S. to similar tariffs. In the mid-1930s, Congress realized that its setting
of tariffs was at best inefficient 49 and thus passed the Reciprocal Trade Agreement Act
of 1934 (the 1934 Act).50
The 1934 Act allowed the President to reduce tariffs within guidelines prescribed
by Congress.51 It permitted the President to issue a Presidential Proclamation enacting
international agreements that lowered tariffs without any further action by
Congress.52 Needless to state, the 1934 Act was a significant delegation of Congress’ power to
set tariffs. But the Act had a limited lifespan and, with each extension of the Act, Congress
issued more guidelines and restrictions on the powers it had delegated to the President.53
The modern period saw a drastic alteration in the U.S. approach to negotiating
trade agreements.54 Instead of making additional changes to the 1934 Act, Congress passed
the Trade Act of 1974 (the 1974 Act), which created modern procedures called the
“fast track.”55 Fast track legislation was enacted to address conflicts between the President
and Congress.56 These conflicts stemmed from the presidential exercise of the executive trade
agreement authority and the ordinary congressional approval procedures, which resulted in
ongoing amendments and a slower, less reliable trade negotiation process. 57 Fast track
procedures were intended as a “consultative” solution to foreign trade disputes between
Congress and the President.58 It was designed to benefit both branches of government by
allowing congressional input into trade agreement negotiations while enabling “the President
to guarantee to international trading partners that Congress will decide on the final agreement
promptly.”59
The 1974 Act broadened the scope of powers delegated to the President who was given
the authority to make international trade agreements affecting both tariff and non-tariff
barriers.60 With the 1974 Act, Congress delegated to the President both the power to set tariffs
and the power to regulate commerce with foreign nations.61 But while the scope of the powers
granted to the President was broader, the extent of the grant was limited. Unlike in the
1934 Act, Congress did not give the President the authority to enact international
trade agreement by a simple proclamation. 62 Instead, the President had to seek
congressional approval.63 To facilitate approval, the fast track mechanism put in place
procedures for congressional review of the agreement during the negotiation process. 64 The
most significant feature of the fast track procedure was that Congress could only approve or
disapprove, but not modify, the text of the agreement. 65 This mechanism gave the President
greater credibility when negotiating international agreements, because other countries knew
that the agreements would not be subject to prolonged debates and drastic changes by
Congress.66
In the 1980s, legislation made the fast track procedure increasingly complicated. 67 The
Trade and Tariff Act of 1984 added a requirement that the President consult with the House
Ways and Means Committee and the Senate Finance Committee before giving notice of his
intent to sign the agreement so that the committees could disapprove the negotiations before
formal talks even began.68 Congress effectively retained a bigger portion of its constitutional
authority over regulation of international trade.69 In 1988, Congress passed the Omnibus
Trade and Competitiveness Act of 1988. 70 The Act further “enhance(d) Congress’ power
in two respects: by reserving for either House the power to block extension of the Fast Track
authority past the original expiration date and for both houses to derail already authorized
agreements from the Fast Track.”71 Aside from the House Ways and Means and Senate
Finance Committees, the House Rules Committee was given the power to “derail” an extension
of the fast track.72
The Act extended the fast-track for only three years.73
Committee on Finance, and members of the committees of the House and the Senate, “which
would have . . . jurisdiction over provisions of law affected by a (sic) trade agreement
negotiations . . . .”92 Each member of the COG is an official advisor to the U.S.
delegation in negotiations for any trade agreement under the Act. 93 The COG was
created “to provide an additional consultative mechanism for Members of Congress and to
provide advice to the (United States Trade Representative) on trade negotiations.”94

To enter into an international agreement using the TPA procedures, the President must first
The fast track legislation saw its end in 1994. 74 For the first time after fifty years, the
consult with the Senate Committee on Finance, the House Committee on Ways and Means,
executive branch was without authority to enter into international trade agreements except
and the COG.95 He must then provide written notice to Congress of his intention to enter into
through treaties subject to Senate approval. Despite persistent attempts by President William
negotiations.96 The notice must include the date that negotiations are scheduled to begin, the
J. Clinton and President George H.W. Bush to renew the fast track, 75 Congress refused to
specific objectives of the negotiations, and whether the President seeks to create a new
grant the executive branch the power to enter directly into international trade
agreement or modify an existing agreement. 97 Six months prior to signing an agreement, the
agreements from 1994 until August 2002.76
President must “send a report to Congress . . . that lays out what he plans to do with respect
to (U.S.) trade laws.”98 At that time, Congress reviews the proposed agreement. The Trade Act
Finally, with the dawn of the new millennium, Congress enacted the Bipartisan Trade of 2002 “provides for a resolution process where Congress can specifically find that the
Promotion Authority Act of 2002 (Trade Act of 2002),77 which provided for a revised fast- proposed changes are ‘inconsistent’ with the negotiating objectives.”99
track procedure under the new label, “trade promotion authority (TPA).”78 The Trade Act of
2002 was billed as “establish(ing) a partnership of equals. It recognizes that Congress’
 In defending the complexity of the Trade Act of 2002, Congress points out that “the
constitutional authority to regulate foreign trade and the President’s constitutional
negotiating objectives and procedures . . . represent a very careful substantive and political
authority to negotiate with foreign nations are interdependent. It requires a working
balance on some very complex and difficult issues such as investment, labor and the
relationship that reflects that interdependence.”79 (emphasis supplied) The purpose of the Act
environment, and the relationship between Congress and the Executive branch during
was to attempt again to resolve the ambiguity in the constitutional separation of powers in the
international trade negotiations.”100 Without doubt, the Act ultimately places much more
area of international trade.80
stringent limitations on the President’s ability to negotiate effectively with foreign nations than
previous fast-track legislation did.101
The Trade Act of 2002 was intended for Congress to retain its constitutional authority
over foreign trade while allowing performance by the President of the role of
Given this slice of U.S. history showing the allocation of power over international trade
negotiatior,81 but with Congress keeping a closer watch on the President. 82 Aside from
agreement negotiations between the executive and Congress in U.S. jurisdiction, it will be
providing strict negotiating objectives to the President, Congress reserved the right to
turning somersaults with history to contend that the President is the sole organ for
veto a negotiated agreement. 83 The President’s power is limited by specific guidelines
external relations. The “sole organ” remark in Curtiss-Wright simply does not apply to the
and concerns identified by Congress and his negotiations may address only the issues
negotiation of international trade agreements in the U.S. where Congress is allowed, at the
identified by Congress in the statute and must follow specific guidelines.84 Authorization to
very least, to indirectly participate in trade negotiations through the setting of statutory
negotiate is given if the President determines that foreign trade is “unduly burden(ed) and
limits to negotiating objectives and procedures, and to almost directly negotiate through
restrict(ed)” and “the purposes, policies, priorities, and objectives of (the Trade Act of 2002)
the Congressional Oversight Group.
will be promoted” by the negotiations. 85 The Act provides five additional limitations on the
negotiation of agreements regarding tariff barriers.86 Negotiation of agreements regarding
non-tariff barriers is subject to the objectives, limitations and requirement of consultation and Let me now discuss the allocation of power over international trade agreements between
notice provided in the Act.87 In addition, the President must notify Congress prior to initiating the Executive and Congress in Philippine jurisdiction.
negotiations, in order for the final negotiated agreement to be eligible for TPA.88 The President
is also required to consult Congress regarding the negotiations “before and after B. Negotiation of trade agreements:
submission of the notice.”89 The Act also requires the President to make specific the question of power allocation between
determinations and special consultations with Congress in the areas of agriculture and the Executive and Congress in Philippine jurisdiction
textiles.90
In their Reply, petitioners refute respondents’ contention that the President is the sole
As oversight to ensure that the President follows the guidelines laid out by Congress, the organ of the nation in its external relations and has exclusive authority in treaty negotiation by
Trade Act of 2002 created a Congressional Oversight Group (COG) composed of asserting that Congress has the power to legislate on matters dealing with foreign trade;
members of Congress, in order to provide direct participation and oversight to hence, they should have access to the subject JPEPA documents.
trade negotiations initiated under the Act. 91 The COG membership includes four
members of the House Committee on Ways and Means, four members of the Senate
 Specifically, as aforementioned, petitioners as members of the House of Representatives
point to Article VI, Section 28 (2) of the 1987 Constitution, as basis of their power over foreign
trade. It provides, viz.:
“Sec. 28 (2). The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the Government.”
(emphasis supplied)
They contend that, pursuant to this provision, the Executive’s authority to enter into
international trade agreements is a legislative power delegated to the President through
Sections 401 and 402 of Presidential Decree No. 1464 or the Tariff and Customs Code of the
Philippines, viz.:
“Sec. 401. Flexible Clause.—
a. In the interest of national economy, general welfare and/or national security, and subject
to the limitations herein prescribed, the President, upon recommendation of the National
Economic and Development Authority (hereinafter referred to as NEDA), is hereby
empowered: (1) to increase, reduce or remove existing protective rates of import
duty (including any necessary change in classification). The existing rates may be
increased or decreased to any level, in one or several stages but in no case shall the increased
rate of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2)
to establish import quota or to ban imports of any commodity, as may be
necessary; and (3) to impose an additional duty on all imports not exceeding ten
(10%) percent ad valorem whenever necessary;
x x x   x x x   x x x
c. The power of the President to increase or decrease rates of import
duty within the limits fixed in subsection “a” shall include the authority to modify the form of
duty. In modifying the form of duty, the corresponding ad valorem or specific equivalents of
the duty with respect to imports from the principal competing foreign country for the most
recent representative period shall be used as bases.
x x x   x x x   x x x
Sec. 402. Promotion of Foreign Trade.—
a. For the purpose of expanding foreign markets for Philippine products as a means of
assistance in the economic development of the country, in overcoming domestic
unemployment, in increasing the purchasing power of the Philippine peso, and in establishing
and maintaining better relations between the Philippines and other countries, the President,
is authorized from time to time:
(1) To enter into trade agreements with foreign governments or
instrumentalities thereof; and
(2) To modify import duties (including any necessary change in classification) and
other import restrictions, as are required or appropriate to carry out and promote
foreign trade with other countries:. . .
b. The duties and other import restrictions as modified in subsection “a”
above, shall apply to articles which are the growth, produce or manufacture of the
specific country, whether imported directly or indirectly, with which the Philippines
has entered into a trade agreement: x x x
c. Nothing in this section shall be construed to give any authority to cancel or
reduce in any manner any of the indebtedness of any foreign country to the
Philippines or any claim of the Philippines against any foreign country.
d. Before any trade agreement is concluded with any foreign government or
instrumentality thereof, reasonable public notice of the intention to negotiate an
agreement with such government or instrumentality shall be given in order that
any interested person may have an opportunity to present his views to the
Commission which shall seek information and advice from the Department of Agriculture,
Department of Natural Resources, Department of Trade and Industry, Department of Tourism,
the Central Bank of the Philippines, the Department of Foreign Affairs, the Board of
Investments and from such other sources as it may deem appropriate.”102 (emphasis supplied)
Indeed, it is indubitable that Article VI, Section 28 (2) of the 1987 Constitution,
vests Congress with power over foreign trade, at least with respect to the fixing of
tariff rates, import and export quotas, tonnage and wharfage dues and other
duties and imposts, similar to the power of Congress under the U.S.
Constitution. This grant of power to the Philippine Congress is not new in the 1987
Constitution. The 1935 Constitution, in almost similar terms, provides for the same power
under Article VI, Section 22(2), viz.:
“Sec. 22(2). The Congress may by law authorize the President, subject to such
limitations and restrictions as it may impose to fix, within specified limits, tariff rates,
import and export quotas, and tonnage and wharfage dues.”103 (emphasis supplied)
Pursuant to this provision, Congress enacted Republic Act. No. 1937, entitled, “An Act to
Revise and Codify the Tariff and Customs Laws of the Philippines,” in 1957. Section 402 of the
Act is the precursor of Section 402 of the Tariff and Customs Code of the Philippines of
1978,104 which petitioners cite. In almost identical words, these sections provide for the
authority of the President to “enter into trade agreements with foreign governments or
instrumentalities thereof.”105 Section 401 of both the Tariff and Customs Code of 1978 and
Republic Act No. 1937 also provide for the power of the President to, among others, increase
or reduce rates of import duty.106
The provision in Article VI, Section 22(2) of the 1935 Constitution—to authorize the
President, by law, to fix, within specified limits, tariff rates, import and export quotas, and
tonnage and wharfage dues—was inspired by a desire to enable the nation, through the
President, to carry out a unified national economic program and to administer the laws of the
country to the end that its economic interests would be adequately protected.107 This intention
to implement a unified national economic program was made explicit in the 1987 Constitution
with the addition of the phrase “within the framework of the national development program of
the government,” upon motion of Commissioner Christian Monsod. He explained the rationale
for adding the phrase, viz.:
“The reason I am proposing this insertion is that an economic program has to be internally
consistent. While it is directory to the President—and it says “within specified limits” on line 2
—there are situations where the limits prescribed to the President might, in fact be distortive
of the economic program.
x x x   x x x   x x x
We are not taking away any power from Congress. We are just saying that as a
frame of reference, the authority and the limits prescribed should be consistent with the
economic program of government which the legislature itself approves.”108 (emphasis
supplied)
In sum, while provision was made for granting authority to the President with respect to
the fixing of tariffs, import and export quotas, and tonnage and wharfage dues, the power of
Congress over foreign trade, and its authority to delegate the same to the President by
law, has consistently been constitutionally recognized. 109 Even Curtiss-Wright, which
respondents and the ponencia  rely on, make a qualification that the foreign relations power of
the President, “like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution.” 110 Congress’  power
over foreign trade is one such provision that must be considered in interpreting the
treaty-making power of the President.
Moreover, while Curtiss-Wright admonished that “. . . if, in the maintenance of our
international relations, embarrassment—perhaps serious embarrassment—is to be avoided and
success for our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible
were domestic affairs alone involved,”111 the 1987 Constitution itself, reiterating the 1935 and
the 1973 Constitutions, provides that Congress may, by law, authorize the President to
fix tariff rates, import and export quotas, tonnage and wharfage dues within specified limits,
and subject to such limitations and restrictions as Congress may impose. One cannot
simply turn a blind eye on Congress’ foreign trade power granted by the
Constitution in interpreting the power of the Executive to negotiate international
trade agreements.
Turning to the case at bar, Congress undoubtedly has power over the subject
matter of the JPEPA,112 as this agreement touches on the fixing of “tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts.” Congress can, in
fact, revoke or amend the power of the President to fix these as authorized by law
or the Tariff and Customs Code of 1978. Congress can legislate and conduct an inquiry in
aid of legislation on this subject matter, as it did pursuant to House Resolution No. 551.
The purpose of the legislative inquiry in which the subject JPEPA documents are
needed is to aid legislation, which is different from the purpose of the negotiations
conducted by the Executive, which is to conclude a treaty. Exercised within their
proper limits, the power of the House of Representatives to conduct a legislative inquiry in aid
of legislation and the power of the executive to negotiate a treaty should not collide with each
other.
It is worth noting that petitioner members of the House of Representatives are not
seeking to directly participate in the negotiation of the JPEPA, nor are they indirectly
interfering with the Executive’s negotiation of the JPEPA. They seek access to the subject
JPEPA documents for purposes of their inquiry, in aid of legislation, on the forging of bilateral
trade and investment agreements with minimal public scrutiny and debate, as evinced in the
title of House Resolution No. 551, “Directing the Special Committee on Globalization
to Conduct an Urgent Inquiry in Aid of Legislation on Bilateral Trade and
Investment Agreements that Government Has Been Forging, with Far Reaching
Impact on People’s Lives and the Constitution But with Very Little Public Scrutiny
and Debate.”113 In relation to this, the ponencia states, viz.:
“Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were
conducted on the JPEPA. Parenthetically, petitioners consider these “alleged consultations” as
“woefully selective and inadequate.”114
Precisely, the inquiry in aid of legislation under House Resolution No. 551 seeks to investigate
the sufficiency of public scrutiny and debate on the JPEPA, considering its expansiveness,
which is well within the foreign trade power of Congress. At this point, it is in fact impossible
for petitioners to interfere with the JPEPA negotiations, whether directly or indirectly, as the
negotiations have already been concluded. Be that as it may, the earlier discussion on the
allocation of international trade powers between the Executive and Congress in U.S.
jurisdiction has shown that it is not anathema to the preservation of the treaty-making powers
of the President for Congress to indirectly participate in trade agreement negotiations.
 Let us now proceed to respondents’ argument that the subject JPEPA documents are
covered by the diplomatic secrets privilege and should therefore be withheld from Congress.
In so proceeding, it is important to bear in mind the interdependence of the power of
Congress over foreign trade and the power of the executive over treaty negotiations.
C. The power of Congress to conduct inquiry
in aid of legislation on foreign trade
vis-à-vis executive privilege
In Senate v. Ermita,115 the Court defined “executive privilege” as the right of the
President and high-level executive branch officials to withhold information from Congress, the
courts, and the public.
 In the U.S., it is recognized that there are at least four kinds of executive privilege: (1)
military and state secrets, (2) presidential communications, (3) deliberative process, and (4)
law enforcement privileges.116 In the case at bar, respondents invoke the state secrets
privilege covering diplomatic or foreign relations and the deliberative process privilege. Let me
first take up the diplomatic secrets privilege.
1. Diplomatic secrets privilege
In Almonte v. Vasquez,117 the Court recognized a common law governmental privilege
against disclosure, with respect to state secrets bearing on diplomatic matters.118 In Chavez
v. PCGG,119 the Court also recognized the confidentiality of information on inter-government
exchanges prior to the conclusion of treaties and executive agreements subject to
reasonable safeguards on the national interest. 120 It also reiterated the privilege against
disclosure of state secrets bearing on diplomatic matters, as held in Almonte. Citing Chavez,
Senate v. Ermita also acknowledged the states secrets privilege bearing on diplomatic
matters. In PMPF v. Manglapus, the Court upheld the confidentiality of treaty negotiations.
In that case, petitioners sought to compel the representatives of the President in the
then ongoing negotiations of the RP-U.S. Military Bases Agreement to give them access
to the negotiations, to treaty items already agreed upon, and to the R.P. and U.S. positions on
items that were still being contested.
In determining the applicability of the diplomatic secrets privilege to the case at bar, I
reiterate the primordial principle in Senate v. Ermita that a claim of executive privilege may be
valid or not depending on the ground invoked to justify it and the context in which it
is made. Thus, even while Almonte and Senate v. Ermita both recognized the state secrets
privilege over diplomatic matters, and Chavez and PMPF v. Manglapus both acknowledged
the confidentiality of inter-government exchanges during treaty negotiations, the validity of
the claim of the diplomatic secrets privilege over the subject JPEPA documents shall be
examined under the particular circumstances of the case at bar. I especially take note of
the fact that unlike PMPF v. Manglapus, which involved a request for access to
information during negotiations of a military treaty, the case at bar involves a request for
information after the conclusion of negotiations of an international trade
agreement. Bearing this context in mind, let me now delve into the merits of the invocation
of executive privilege.
Almonte, Chavez, Senate v. Ermita , and PMPF v. Manglapus  did not discuss the
manner of invoking the diplomatic secrets privilege. For the proper invocation of this
privilege, U.S. v. Reynolds 121 is instructive. This case involved the military secrets privilege,
which can be analogized to the diplomatic secrets privilege, insofar as they are both based on
the nature and the content of the information withheld. I submit that we should follow the
procedure laid down in Reynolds to determine whether the diplomatic secrets privilege is
properly invoked, viz.:
“The privilege belongs to the Government and must be asserted by it; it can neither be
claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal
claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer. The court itself must determine
whether the circumstances are appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege is designed to protect.
x x x   x x x   x x x
It may be possible to satisfy the court, from all the circumstances of the case, that there is
a reasonable danger that compulsion of the evidence will expose military matters which, in the
interest of national security, should not be divulged. When this is the case, the occasion for
the privilege is appropriate, and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of the evidence, even by the
judge alone, in chambers.”122 (emphasis supplied) (footnotes omitted)
In the case at bar, the reasons for nondisclosure of the subject JPEPA documents are
stated in the 23 June 2005 letter of respondent Secretary Ermita to Congressman Teves,
Chairperson of the House Special Committee on Globalization, viz.: 
“Dear Congressman Teves,
x x x   x x x   x x x
In its letter dated 15 June 2005 (copy enclosed), DFA explains that the Committee’s
request to be furnished all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for about three
years. A copy of the draft JPEPA will however be forwarded to the Committee as
soon as the text thereof is settled and complete. (emphasis supplied)
In the meantime, DFA submits copies of the following documents:
 Joint Statement on the JPEPA issued in December 2002
 JPEPA Joint Coordinating Team Report dated December 2003
 Joint Announcement of the Philippine President and the Japanese Prime Minister
issued in December 2003
 Joint Press Statement on the JPEPA issued in November 2004
x x x   x x x   x x x
For your information.
Very truly yours,
(Signed)
Eduardo R. Ermita
Executive Secretary”123
 Respondents’ Comment further warned of the danger of premature disclosure of the
subject JPEPA documents, viz.:
“. . . At the time when the Committee was requesting the copies of such
documents, the negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Considering the status and
nature of such documents then and now, these are evidently covered by executive
privilege . . .
Practical and strategic considerations likewise counsel against the disclosure of
the “rolling texts” which may undergo radical change or portions of which may be
totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the course of the
negotiations . . .”124
The reasons cited by respondents for refusing to furnish petitioners the subject JPEPA
documents demonstrate that these documents contain matters that should not be disclosed,
lest the ongoing negotiations be hampered. As respondents further explain in their
Comment, if premature disclosure is made while negotiations are ongoing, the Philippine
panel and the President would be “hampered and embarrassed by criticisms or comments
from persons with inadequate knowledge of the nuances of treaty negotiations or worse by
publicity seekers or idle kibitzers.”125
Without ruling on the confidentiality of the subject JPEPA documents during negotiations
(as this is no longer in issue), I submit that the reasons provided by respondents for
invoking the diplomatic secrets privilege while the JPEPA negotiations were
ongoing no longer hold now that the negotiations have been concluded.   That
respondents were claiming confidentiality of the subject JPEPA documents during—not after
—negotiations and providing reasons therefor is indubitable. The 23 June 2005 letter of
respondent Secretary Ermita to Congressman Teves states that the “proposed Agreement has
been a work in progress for about three years.” Likewise, respondents’ Comment states
that “(a)t the time when the Committee was requesting the copies of such documents, the
negotiations were ongoing as they are still now.” Both statements show that the
subject JPEPA documents were being withheld from petitioners during and not after
negotiations, and that the reasons provided for withholding them refer to the
dangers of disclosure while negotiations are ongoing and not after they have been
concluded.
 In fact, respondent Secretary Ermita’s 23 June 2005 letter states that a “copy of the draft
JPEPA” as soon as “the text thereof is settled and complete” would be forwarded to the
Committee, which is precisely one of the subject JPEPA documents, i.e., the final text of the
JPEPA prior to its signing by the President. Similarly, in his letter dated 2 November
2005, respondent Undersecretary Aquino replied that the Committee would be provided
the latest draft  of the agreement “once the negotiations are completed and as soon as a
thorough legal review of the proposed agreement has been conducted.”126 Both letters of
Secretary Ermita and Undersecretary Aquino refer to the draft texts of the JPEPA that
they would provide to the Committee once the negotiations and text are completed, and
not to the final text of the JPEPA after it has been signed by the President. The
discussion infra will show that in the case of the North American Free Trade Agreement
(NAFTA), the complete text of the agreement was released prior to its signing by the
Presidents of the U.S., Canada and Mexico. Likewise, draft texts of the Free Trade Area of
the Americas (FTAA) have been made accessible to the public. It is not a timeless
absolute in foreign relations that the text of an international trade agreement prior to its
signing by the President should not be made public.
For a claim of diplomatic secrets privilege to succeed, it is incumbent upon
respondents to satisfy the Court that the disclosure of the subject JPEPA documents after
the negotiations have been concluded would prejudice our national interest, and
that they should therefore be cloaked by the diplomatic secrets privilege. It is the
task of the Executive to show the Court the reason for the privilege in the context in which
it is invoked, as required by Senate v. Ermita, just as the U.S. government did
in Reynolds.127 Otherwise, the Court, which has the duty to determine with finality whether
the circumstances are appropriate for a claim of privilege, 128 will not have any basis for
upholding or rejecting respondents’ invocation of the privilege. The requirement to show the
reason for the privilege is especially important in the case at bar, considering that the subject
JPEPA documents are part of trade agreement negotiations, which involve
the interdependent powers of the Executive over treaty negotiations and the
legislature over foreign trade, as recognized in both Philippine and U.S.
jurisdictions. Upon the Executive’s showing of the reason and circumstances for invoking the
diplomatic secrets privilege, the Court can then consider whether the application of the
privilege to the information or document in dispute is warranted. As the Executive is given the
opportunity to show the applicability of the privilege, there is a safeguard for protecting what
should rightfully be considered privileged information to uphold national interest.
With respondents’ failure to provide reasons for claiming the diplomatic secrets
privilege after the conclusion of negotiations, the inevitable conclusion is that
respondents cannot withhold the subject JPEPA documents.
The contentions in the Concurring Opinion of Justice Carpio that a State may wish to
keep its offers “confidential even after the signing of the treaty because it plans to negotiate
similar treaties with other countries and it does not want its negotiating positions known
beforehand by such countries,” and that “(i)f the Philippines does not respect the
confidentiality of the offers and counter-offers of its negotiating partner State, then other
countries will be reluctant to negotiate in a candid and frank manner with the
Philippines”129 are speculative and matters for respondents to show the Court. The same
holds true as regards the assertion in the Separate Opinion of Justice Tinga that “with
respect to the subject treaty, the Government of the Philippines should expectedly heed
Japan’s normal interest in preserving the confidentiality of the treaty negotiations and conduct
itself accordingly in the same manner that our Government expects the Japanese Government
to observe the protocol of confidentiality.”130
 Respondents having failed in shielding the subject JPEPA documents with the diplomatic
secrets privilege, let us now proceed to determine whether they can keep these documents
secret under the deliberative process privilege, which is a distinct kind of executive
privilege. The Separate Opinion of Justice Tinga asserts, however, that while there is a
distinction between the diplomatic secrets privilege and the deliberative process privilege,
“they should be jointly considered if the question at hand, as in this case, involves such
diplomatic correspondences related to treaty negotiations . . . Thus, it would not be enough to
consider the question of privilege from only one of these two perspectives as both species of
privilege should be ultimately weighed and applied in conjunction with each other.”
Indeed, the diplomatic character of the JPEPA deliberations or negotiations and the subject
JPEPA documents was considered in determining the applicability of the diplomatic secrets
privilege in the above discussion. But as respondents have failed in protecting the subject
JPEPA documents with this kind of privilege that considers the diplomatic character of
negotiations, the next question to consider is whether another kind of privilege—that does not
hinge on the diplomatic nature of negotiations, but on the deliberative status of information
alone—can shield the subject JPEPA documents.
2. Deliberative process privilege
The “deliberative process privilege” was not literally invoked in the 23 June 2005 letter
of respondent Secretary Ermita or in respondents’ Comment. Nevertheless, Secretary Ermita’s
statement that “the Committee’s request to be furnished all documents on the JPEPA may be
difficult to accomplish at this time, since the proposed Agreement has been a work in progress
for about three years, (a) copy of the draft JPEPA will however be forwarded to the Committee
as soon as the text thereof is settled and complete,” and respondents’ afore-quoted
assertion of danger of premature disclosure131 in their Comment show reliance on the
deliberative process privilege.
In the U.S., it is settled jurisprudence that the deliberative process privilege
justifies the government’s withholding of documents and other materials that would reveal
“advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.”132 In 1958, the
privilege was first recognized in a U.S. federal case, Kaiser Aluminum Chemical Corp. v.
United States,133 in which the term “executive privilege” was also originally used.
Kaiser was a suit filed against the U.S. in the Federal Court of Claims. Plaintiff Kaiser
sought documents from the General Services Administration in the context of an action for
breach of the most favored purchaser clause of a contract for the sale of war aluminum plants
to plaintiff. The Court of Claims held that the production of advisory opinion on intra-
office policy in relation to the sale of aluminum plants to plaintiff and to another entity was
contrary to public interest; thus, the U.S. must be allowed to claim the executive privilege of
nondisclosure. The Court sustained the following justification of the government for
withholding a document:
“The document . . . contains opinions that were rendered to the Liquidator of War Assets
by a member of his staff concerning a proposed sale of aluminum plants. Those opinions do
not necessarily reflect the views of, or represent the position ultimately taken by,
the Liquidator of War Assets. A disclosure of the contents of documents of this
nature would tend to discourage the staffs of Government agencies preparing such
papers from giving complete and candid advice and would thereby impede
effective administration of the functions of such agencies.”134 (emphasis supplied)
Thereupon, the Court etched out the classic justification of the deliberative process
privilege,135 viz.:
“Free and open comments on the advantages and disadvantages of a proposed
course of governmental management would be adversely affected if the civil servant
or executive assistant were compelled by publicity to bear the blame for errors or bad
judgment properly chargeable to the responsible individual with power to decide and
act.”136 (emphasis supplied)
The Court also threw in public policy and public interest as bases for the deliberative
process privilege, viz.:
“. . . Government from its nature has necessarily been granted a certain freedom from control
beyond that given the citizen . . . There is a public policy involved in this claim of
privilege for this advisory opinion—the policy of open, frank discussion between
subordinate and chief concerning administrative action. 137
x x x   x x x   x x x
. . . Viewing this claim of privilege for the intra-agency advisory opinion in its entirety, we
determine that the Government’s claim of privilege for the document is well-founded. It would
be definitely contrary to the public interest in our view for such an advisory opinion
on governmental course of action to be produced by the United States under the
coercion of a bar against production of any evidence in defense of this suit for contract
damages.”138 (emphasis supplied)
The Court also held that the judicial branch, and not the executive branch, is the final
arbiter of whether the privilege should apply, contrary to the government’s assertion
that the head of the relevant agency should be allowed to assert the privilege unilaterally.139
 Courts and scholars have identified three purposes 140 of the privilege: (1) to
protect candid discussions within an agency;141 (2) to prevent public confusion from
premature disclosure of agency opinions before the agency has established a final
policy;142 and (3) to protect against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action,
when these were not in fact the ultimate reasons for the agency’s action.143
Two requisites are essential for a valid assertion of the privilege: the material must
be pre-decisional and deliberative. To be “pre-decisional,” a document must
be generated before the adoption of an agency policy. To be “deliberative,” it must
reflect the give-and-take of the consultative process. 144 Both requirements stem from the
privilege’s “ultimate purpose (which) . . . is to prevent injury to the quality of agency
decisions” by allowing government officials freedom to debate alternative approaches in
private.145 The deliberative process privilege does not shield documents that simply state
or explain a decision the government has already made; nor does the privilege cover
material that is purely factual, unless the material is so inextricably intertwined with the
deliberative sections of documents that its disclosure would inevitably reveal the government’s
deliberations.146 There must also be a formal assertion  of the privilege by the head of the
department in control of the information based on his actual personal consideration of the
matter and an explanation as to why the information sought falls within the scope of
the privilege. 147
Once the agency has shown that the material is both pre-decisional and deliberative,
the material enjoys a qualified privilege that may be overcome by a sufficient
showing of need, as held in In re Sealed Case (Espy).148 In general, courts balance the
need for information against the harm that may result from disclosure. Thus, “each
time (the deliberative process privilege) is asserted, the district court must undertake a fresh
balancing of the competing interests,” taking into account factors such as “the relevance of
the evidence,” “the availability of other evidence,” “the seriousness of the litigation,” “the role
of the government,” and the “possibility of future timidity by government employees.”149 These
rulings were made in the context of the refusal of the White House to submit some documents
sought by a grand jury subpoena.150
In our jurisdiction, the Court has had no occasion to recognize and rule on the
applicability of the deliberative process privilege. In the recent case Neri v. Senate
Committees,151 the Court recognized the claim of the presidential communications privilege,
which is closely associated with the deliberative process privilege.152 In In re Sealed Case
(Espy), the distinction between the two privileges was explained, viz.:
“Both are executive privileges designed to protect executive branch decision-making,
but one (deliberative process privilege) applies to decision-making of executive officials
generally, the other specifically to decision-making of the President. The presidential
privilege is rooted in constitutional separation of powers principles and the
President’s unique constitutional role; the deliberative process privilege is primarily
a common law privilege. . .  Consequently, congressional or judicial negation of the
presidential communications privilege is subject to greater scrutiny than denial of the
deliberative privilege . . . Unlike the deliberative process privilege (which covers only material
that is pre-decisional and deliberative),153 the presidential communications privilege
applies to documents in their entirety, and covers final and post-decisional materials
as well as pre-deliberative ones.”154 (emphasis supplied)
The distinction notwithstanding, there is no reason not to recognize in our jurisdiction the
deliberative process privilege, which has essentially the same purpose as the presidential
communications privilege, except that it applies to executive officials in general.
Let us now determine whether the deliberative process privilege will shield
from disclosure  the following JPEPA documents sought by petitioners: (1) the initial offers
(of the Philippines and Japan) of the JPEPA, including all pertinent attachments and annexes
thereto; and (2) the final text of the JPEPA prior to the signing by the President. The answer
is in the negative.
It is my considered view that the subject JPEPA documents do not come within the
purview of the kind of information which the deliberative process privilege shields in order to
promote frank and candid discussions and protect executive branch decision-making of
the Philippine government. The initial offers are not in the nature of “advisory opinions,
recommendations and deliberations”155 similar to those submitted by the subordinate to
the chief in a government agency, as in the seminal case of Kaiser. The initial offer of the
Philippines is not a document that offers alternative courses of action to an executive official
to aid in the decision-making of the latter, but is instead a proposal to another government,
the Japanese government, to institute negotiations. The end in view of these negotiations is
not a decision or policy of the Philippine government, but a joint decision or agreement
between the Philippine and the Japanese governments.
Likewise, the final text of the JPEPA prior to signing by the President is not in the
nature of an advice or recommendation or deliberation by executive officials of the Philippine
government, as it is the handiwork of the Philippine and the Japanese negotiating
panels working together. The documents sought to be disclosed are not of the same
nature as internal deliberations of the Department of Trade and Industry or the Philippine
negotiating panel in crafting and deciding the initial offer of the Philippines or internal
memoranda of Philippine government agencies to advise President Macapagal-Arroyo in her
decision to sign the JPEPA. Extending the mantle of protection of the deliberative
process privilege to the initial offers of the Philippines and of Japan and the final
JPEPA text prior to signing by President Macapagal-Arroyo will be tantamount to
extending the protection of executive branch decision-making to the executive
branch not only of the Philippine government, but also of the Japanese
government, which, in trade agreement negotiations, represents an interest
adverse to that of the Philippine government. As seen from the rationale and history of
the deliberative process privilege, this is not the intent of the deliberative process
privilege.156 Given the nature of the subject JPEPA documents, it is the diplomatic secrets
privilege that can properly shield them upon sufficient showing of reasons for their
confidentiality. Hence, the invocation of deliberative process privilege to protect the subject
JPEPA documents must fail. 
But this is not all. In Senate v. Ermita, the Court also required that executive
privilege must be invoked by the President, or the Executive Secretary “by order of
the President,” unlike in U.S. jurisdiction where, as afore-discussed, the formal assertion of
the head of the department claiming the privilege suffices. 157 In the case at bar, the
Executive Secretary invoked both the deliberative process privilege and the diplomatic secrets
privilege not “by order of the President,” as his 23 June 2005 letter quoted above shows.
Accordingly, the invocation of executive privilege was not properly made and was therefore
without legal effect.
Senate v. Ermita was decided on 20 April 2006 and became final and executory on 21
July 2006. Hence, it may be argued that it cannot be used as a yardstick to measure whether
respondent Secretary Ermita properly invoked executive privilege in his 23 June 2005 letter.
It must be noted, however, that the case at bar has been pending decision even after the
finality of Senate v. Ermita. During the time of its pendency, respondents failed to inform
the Court whether Executive Secretary Ermita’s position bore the imprimatur of the Chief
Executive. The period of nearly two years from the time Senate v. Ermita became final up to
the present is more than enough leeway for the respondents to comply with the requirement
that executive privilege be invoked by the President, or the Executive Secretary “by order of
the President.” Contrary to the assertion of the ponencia,158 the Court would not be overly
strict in exacting compliance with the Senate v. Ermita requirement, considering the two-
year margin the Court has afforded respondents.
 Let us now determine whether the public’s constitutional right to information and
participation can be trumped by a claim of executive privilege over the documents sought to
be disclosed.
II. The context: the question of the right of access
of the petitioner private citizens to the subject JPEPA documents is raised in
relation to international trade agreement negotiations on the strength of a
constitutional right to information and participation
A. The developing openness of trade agreement negotiations in U.S. jurisdiction
The waning of the exclusivity of executive power over negotiations of international trade
agreements vis-à-vis Congressional power over foreign trade was accompanied by a
developing openness to the public of international trade agreement negotiations in
U.S. jurisdiction.
Historically, the American public only had an indirect participation in the trade
negotiation process. Public involvement primarily centered on electing representatives who
were responsible for shaping U.S. trade policy.159 From the 18th century until the early
1930s, U.S. international trade relations160 were largely left to the interplay between these
public delegates in the legislative and the executive branches and similar officials in foreign
nations.161 But this trend began to see changes during the Great Depression in the
early 1930s and the enactment of the Trade Agreements Act of 1934,162 under which
regime the 1936 case Curtiss-Wright was decided.
As afore-discussed, the U.S. Congress passed the Reciprocal Trade Agreement Act of 1934
(the 1934 Act). As an economic stimulus, the 1934 Act authorized the President to address
economic stagnation by reducing tariffs on foreign goods by as much as fifty percent. 163 When
the President took such an action, America’s trading partners reciprocated by reducing tariffs
placed on U.S. goods, thereby stimulating the U.S. economy. 164 Confronted with the Great
Depression and the subsequent deterioration of the global economy, the 1934 Act
called for a single, strong voice to deal effectively with foreign nations. Thus, the
President, with this Congressional mandate, became the chief American trade negotiator
with complete and unrestricted authority to enter into binding international trade
agreements.165
While the 1934 Act gave trading muscle to the President, it also created the first formal
method of public participation in the international trade negotiation
process. Section 4 of the 1934 Act required “reasonable public notice” of the President’s
intention to enter into agreements with foreign states, 166 thereby giving American citizens the
opportunity to know with which foreign nations the U.S. government proposed to
negotiate. Pursuant to the 1934 Act, the President established the Trade Agreements
Committee, which was composed of high-ranking members of the executive branch.167 The
Trade Agreements Committee, commonly known as the Committee for Reciprocity
Information, conducted public hearings at which specific items up for negotiation with a
particular country would be discussed.168 But with the Congress left almost completely outside
the trade negotiation process and agreements being concluded and implemented in
relative obscurity, the attention of Congress and the public turned more toward the
pressing domestic issues, at least until the dawn of the ‘70s.169
The Cold War and the lingering Vietnam War made international relations
increasingly significant to the general welfare of the U.S. By the mid-1970s, the post-
World War II economic dominance of the U.S. began to deteriorate. 170 Under Japan’s
lead, Asia began gaining economic strength, quickly joining Europe as a major global industrial
competitor to the U.S. At the same time, increased media coverage brought
international trade issues to the public’s attention 171 and moved the public
to challenge the traditions, institutions, and authority of government with respect
to trade issues.
With the swell of public activism, the U.S. Congress re-analyzed its transfer of powers
over international trade issues. Thus, as afore-discussed, in 1974, after forty years of
continuous presidential authority over international trade matters, Congress passed the Trade
Act of 1974.172 The Trade Act of 1974 increased the levels of public involvement in
international trade negotiations, far beyond the requirement of notice of a proposed
trading partner under the 1934 Act. The 1974 Act required international agreements to
include provisions creating domestic procedures through which interested public
parties could participate in the international trade process. 173 It also required the
President to seek information and advice from both private and public sectors. 174 For
this purpose, it incorporated the use of advisory committees and included spontaneous
opportunities for acceptance of information from the public. 175 Thus, the 1974 Act,
supplemented by several amendments passed in 1979 and 1988, opened the door to
unprecedented formal and direct public participation 176 in the negotiation of
international trade agreements and contributed to a rekindled awareness of government
activities and their impact on the public.177
Towards the latter half of the 1980s, government leaders and trade experts again
began to advocate reduced trade barriers as an answer to economic difficulty. They
became convinced that increased emphasis on free global trade was the key to future
economic prosperity. The idea of increasing the size and strength of the national economy by
reducing restrictions on foreign trade was the impetus behind trade agreements such as the
1993 North American Free Trade Agreement (NAFTA) 178 concluded among the U.S., Mexico
and Canada. The launch of the NAFTA and the completion of the World Trade Organization’s
(WTO) Uruguay round in the mid-’90s swept in a new era of unprecedented international
collaboration on trade policy.179
In the 1990s, the changing nature of world politics and economics focused
international issues on economic well-being rather than on political and military
dominance. Fearing environmental destruction and increased unemployment, members of
Congress, commentators, and special interest groups have used trade agreements such as
NAFTA and the mass media to heighten public awareness and participation in
international trade relationships.180 The 1990s led the American public to realize
that international trade issues had a direct impact on their standard of living and
way of life,181 thus fomenting public participation in international trade
negotiations. With the growing concern over the far-reaching implications of bilateral and
multilateral international trade agreements and the increased focus upon the processes by
which they are negotiated, calls for greater openness and public participation in their
negotiation have come in many forms and from many corners, particularly in the U.S. A
central component of the demand for participation has been to gain access to
negotiating documents shared by the U.S. with other governments prior to the
conclusion of a free trade agreement. 182
The 1990s saw a continuous expansion of public access to the international
trade agreement process. Rather than simply being left to point out failures in already
existing agreements, individuals were now allowed to help shape future
agreements. In reemphasizing the open government mentality of the 1970s, the 1990s
marked the beginning of a new era in trade negotiations. Private individuals now
played an important role in many areas throughout the international trade agreement
process.183 The Trade Act of 2002 was then passed, enhancing transparency through
increased and more timely access to information regarding trade issues and
activities of international trade institutions; increased public access to meetings,
proceedings, and submissions at the World Trade Organization (WTO); and
increased and more timely public access to all notifications and supporting
documentation by parties to the WTO.184
Public participation in international trade negotiations affects trade negotiations in two
distinct ways. First, it serves as a check on the power of elected and bureaucratic
leaders by generating and limiting the issues that require government action. Second, it
provides those in positions of power and influence with specific, detailed information
upon which to base their decisions; for in the absence of public input, government
officials risk making decisions based on incomplete information, thereby compromising
public policy.185
The public participates in trade negotiations in various ways. Individuals influence
governmental action by electing the President and members of Congress, joining special
interest groups that lobby influential members of the executive and the legislative branches,
initiating litigation, serving on presidentially appointed advisory committees, testifying at
international trade commission hearings, and protesting individually or as a group.
But ultimately, the degree of public involvement in any area of government policy depends
on the amount of available access.186
 Although the NAFTA negotiations have been criticized for being shrouded in much
secrecy, the U.S. government released on 6 September 1992, the most recent text of the
NAFTA, prior to its signing by Canadian Prime Minister Brian Mulroney, U.S. President
George H.W. Bush and Mexican President Carlos Salinas on October 7, 1992.187
The negotiation of the Free Trade Area of the Americas (FTAA) that began in 1995 has
also shown a changing landscape that allows for greater public participation in international
trade negotiations. In their Santiago Summit in 1998, the heads of thirty-four Western
Hemisphere states extended principles of participation explicitly to the FTAA:
“The FTAA negotiating process will be transparent . . . in order to create the
opportunities for the full participation by all countries. We encourage all segments of civil
society to participate in and contribute to the process in a constructive manner ,
through our respective mechanisms of dialogue and consultation and by presenting their views
through the mechanism created in the FTAA negotiating process.”188
The Santiago Declaration also includes a pledge to “promote the necessary actions for
government institutions to become more participatory structures.”189 (emphasis supplied)
In the Quebec Summit in 2001, the heads of State went even further and declared their
commitment to “the full participation of all persons in the political, economic, social and
cultural life of our countries.”190 They also addressed participation in the context of an FTAA
and committed to—
“Ensure the transparency of the negotiating process, including through publication of
the preliminary draft FTAA Agreement in the four official languages as soon as possible
and the dissemination of additional information on the progress of negotiations;
[and to] Foster through their respective national dialogue mechanisms and through
appropriate FTAA mechanisms, a process of increasing and sustained communication
with civil society to ensure that it has a clear perception of the development of the
FTAA negotiating process; [and to] invite civil society to continue to contribute to the FTAA
process . . .”191 (emphasis supplied)
Thus, the Presidential summits, which have established both the impetus and the context for
an FTAA, unmistakably contemplate public access to the negotiating process, and the
FTAA itself is a central part of that process. 192 In July 2001 came the first public release of
the preliminary official text of the FTAA. A revised draft of the text was released in
November 2002 and again in 2003. 193 This notwithstanding, civil society organizations have
expressed great concern for and emphasis on the timeliness of information given to the public
and input given to negotiators. They have observed that the draft text is published long after
issues are actually negotiated; they have thus proposed specific mechanisms for the timely
release of negotiating documents, many of which were procedures already in place in the
World Trade Organization (WTO).194
The need to create meaningful public participation during negotiation and
implementation applies to both multilateral agreements, such as the FTAA, and to bilateral
agreements.195 Public participation gives legitimacy to the process and result, and
it strengthens the political will of populations who must support ratification and
implementation once the text is finalized. The wide range of expertise available outside
of governmental corridors would also be more fully accessible to officials if an organic and
meaningful exchange of ideas is part of the process. While it is true that participation implies
resource allocation and sometimes delay, these are investments in a democratic
outcome and should not be seen as costs.196
Secrecy has long played an integral but also controversial role in the negotiation of of interference by the people through people’s organizations . . .201x x
international agreements. It facilitates frank discussion, minimizes posturing and allows x   x x x   x x x
flexibility in negotiating positions. But it is also prone to abuse and is often assailed as
undemocratic and facilitating abuse of power. In the public eye, excessive secrecy can MR. OPLE. The Committee added the word “democratic” to “republican,” and,
weaken accountability and undermine the legitimacy of government therefore, the first sentence states: “The Philippines is a republican and
action.197 Generally, it can also undermine the faith of the public in the need for democratic state.”
secrecy198 for “secrecy can best be preserved only when credibility is truly maintained.”199
May I know from the committee the reason for adding the word “democratic” to
The tension between secrecy and the demand for openness continues, but “republican”? The constitutional framers of the 1935 and 1973 Constitutions were
circumstances have changed, as the international trade agreements of today tend content with “republican.” Was this done merely for the sake of emphasis?
to be far more authoritative and comprehensive than those negotiated by
MR. NOLLEDO. Madam President, that question has been asked several times, but
Presidents Woodrow Wilson, George Washington and John Jay. These trade
being the proponent of this amendment, I would like the Commissioner to know
agreements have broader and more direct consequences on private conduct. As the
that “democratic” was added because of the need to emphasize people power and
trend on international trade agreements will only continue, it is important to revisit the
the many provisions in the Constitution that we have approved related to recall, people’s
tension between  secrecy and openness. The fact alone that secrecy shrouded
organizations, initiative and the like, which recognize the participation of the people
negotiations of international agreements three hundred or even twenty-five years
in policy-making in certain circumstances.”
ago can no longer justify the continuation of that approach in today’s era of the
NAFTA, CAFTA (Central American Free Trade Agreement), and a prospective
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does
FTAA.200
meet a need. . .

These developments in the openness to the public of international trade agreement x x x   x x x   x x x
negotiations show that secrecy in the negotiation of treaties is not a rule written in
stone. Revisiting the balance between secrecy and openness is an imperative, especially in MR. NOLLEDO. According to Commissioner Rosario Braid, “democracy”
the Philippines where the right to information has been elevated to a here is understood as participatory democracy. 202 (emphasis supplied)
constitutional right essential to our democratic society.
Of a similar tenor is the following exchange between Commissioners Abraham
Sarmiento and Adolfo Azcuna:

B. Democracy and the rights to information MR. SARMIENTO. When we speak of republican democratic state, are we referring to
and participation representative democracy?

1. Philippine Constitutional provisions MR. AZCUNA. That is right.

on information and transparency
MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and
1935 Constitutions which used the words “republican state” because “republican
Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct the
state” would refer to a democratic state where people choose their
people’s role in governance. As a first principle of government, the 1987 Constitution declares
representatives?
in Article II, Section 1, Declaration of Principles and State Policies, that the Philippines is not
only a republican but also a democratic state.   The word “democratic” was added to
MR. AZCUNA. We wanted to emphasize the participation of the people in
“republican” as a “pardonable redundancy” to highlight the importance of the people’s role in
government.203 (emphasis supplied)
government, as evinced by the exchanges in the 1986 Constitutional Commission, viz.:

 
 

In line with this desideratum, our fundamental law enshrined in rubric the indispensability
MR. NOLLEDO. I am putting the word “democratic” because of the provisions that we
of the people’s participation in government
are now adopting which are covering consultations with the people. For
through recall,204 initiative,205 and referendum.206
example, we have provisions on recall, initiative, the right of the people even to
participate in lawmaking and other instances that recognize the validity
 Similarly, it expressly provided for the people’s right to effective and reasonable
participation in Article XIII, Section 16, on Social Justice and Human Rights, viz.:
“The right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate the establishment of adequate consultation
mechanisms.” (emphasis supplied)
To prevent the participation of the people in government from being a mere chimera, the
1987 Constitution also gave more muscle to their right to information, protected in the
Bill of Rights, by strengthening it with the provision on transparency in government, and by
underscoring the importance of communication. Thus, the 1987 Constitution provides in Article
III, Section 7 of the Bill of Rights, viz.:
“The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.” (emphasis supplied)
Symmetrical to this right to information are the following provisions of the 1987
Constitution:  to be active in seeking information rather than being dependent on
Article II, Section 28, Declaration of State Principles and Policies:
Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving
public interest. (emphasis supplied)
Article XI, Section 21, National Economy and Patrimony:
Foreign loans may be incurred in accordance with law and the regulation of the
monetary authority. Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public. (emphasis supplied) 
The objective of the 1987 Constitution is to attain an open and honest
government predicated on the people’s right to know, as shown by the following portion of
the deliberations of the 1986 Constitutional Commission, viz.:
MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by
Commissioners Ople, Rama, Treñas, Romulo, Regalado and Rosario Braid. It
reads as follows: “SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A
POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO
REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY
LAW.”
x x x   x x x   x x x
In the United States, President Aquino has made much of the point that the government
should be open and accessible to the public. This amendment is by way of
providing an umbrella statement in the Declaration of Principles for all these
safeguards for an open and honest government distributed all over the draft
Constitution. It establishes a concrete, ethical principle for the conduct of
public affairs in a genuinely open democracy, with the people’s right to
know as the centerpiece.207 (emphasis supplied)
The correlative policy of public disclosure and the people’s right to information were also
expounded by Constitutional Commissioners Joaquin Bernas and Napoleon Rama, viz.:
FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that
Section 6 (referring to Section 7, Article III on the right to information) talks
about the right of the people to information, and corresponding to every right is
a duty. In this particular case, corresponding to this right of the people is
precisely the duty of the State to make available whatever information
there may be needed that is of public concern. Section 6 is very broadly
stated so that it covers anything that is of public concern. It would
seem also that the advantage of Section 6 is that it challenges citizens
whatever the State may release to them.
x x x   x x x   x x x
MR. RAMA. There is a difference between the provisions under the Declaration of
Principles and the provision under the Bill of Rights. The basic difference is that
the Bill of Rights contemplates collision between the rights of the citizens and the
State. Therefore, it is the right of the citizen to demand information. While
under the Declaration of Principles, the State must have a policy, even
without being demanded, by the citizens, without being sued by the
citizen, to disclose information and transactions. So there is a basic
difference here because of the very nature of the Bill of Rights and the nature of
the Declaration of Principles.208 (emphases supplied)
Going full circle, the 1987 Constitution provides for the vital role of information in nation-
building in the opening Declaration of State Principles and Policies and in the General
Provisions towards the end of the Constitution.
Article II, Section 24, provides, viz.:
“Sec. 24. The State recognizes the vital role of communication and information in
nation-building.” (emphasis supplied).
Article XVI, Section 10, General Provisions provides, viz.:
 “Sec. 10. The State shall provide the policy environment for the full development of
Filipino capability and the emergence of communication structures suitable to the
needs and aspirations of the nation and the balanced flow of information into, out
of, and across the country, in accordance with a policy that respects the freedom of speech
and of the press.” (emphasis supplied)
Constitutional Commissioner Rosario Braid explained the rationale of these provisions on
information and communication in her sponsorship speech, viz.:
MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we
have a philosophy of communication, unless we have a vision of society. Here we
have a preferred vision where opportunities are provided for participation by as
many people, where there is unity even in cultural diversity, for there is freedom to
have options in a pluralistic society. Communication and information provide the
leverage for power. They enable the people to act, to make decisions, to share
consciousness in the mobilization of the nation.209 (emphasis supplied)
With the constitutional provisions on transparency and information brightlined in neon as
backdrop, we now focus on the people’s right to information.
2. Focusing on the right to information
The constitutional provision on the people’s right to information made its maiden
appearance in the Bill of Rights of the 1973 Constitution, but without the phrase “as well as
to government research data used as basis for policy development.” The phrase was added in
the 1987 Constitution to stop the government practice during Martial Law of withholding social
research data from the knowledge of the public whenever such data contradicted policies that
the government wanted to espouse.210
Likewise, the framers of the 1987 Constitution expanded the scope of “transactions” that
may be accessed, to include negotiations leading to the consummation of contracts and
treaties, but subject to “reasonable safeguards on national interest.”211  Under both the 1973 and the 1987 Constitutions, the right to information is self-
The intent of the constitutional right to information, as pointed out by Constitutional
Commissioner Wilfrido V. Villacorta, is “to adequately inform the public so that nothing vital in
state affairs is kept from them”212 In Valmonte v. Belmonte,213 we explained the rationale of
the right of access to information, viz.:
“An informed citizenry with access to the diverse currents in political, moral and
artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon is vital to the democratic government envisioned
under our Constitution. The cornerstone of this republican system of government is
delegation of power by the people to the State. In this system, governmental agencies and
institutions operate within the limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can become prey to the whims
and caprices of those to whom the power had been delegated . . .
x x x   x x x   x x x
. . . The right of access to information ensures that these freedoms are not rendered
nugatory by the government’s monopolizing pertinent information. For an essential element of
these freedoms is to keep open a continuing dialogue or process of communication between
the government and the people. It is in the interest of the State that the channels for free
political discussion be maintained to the end that the government may perceive and be
responsive to the people’s will. Yet, this open dialogue can be effective only to the
extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in a discussion are aware of the issues and
have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech
and expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with the constitutional
policies of full public disclosure  (footnote omitted) and honesty in the public
service  (footnote omitted). It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking abuse in
government.”214 (emphases supplied)
Notably, the right to information was written in broad strokes, as it merely required that
information sought to be disclosed must be a matter of public concern. 215 In Legaspi v.
Civil Service Commission,216 the Court elucidated on the meaning of “matters of public
concern,” viz.:
“In determining whether or not a particular information is of public concern, there is no
rigid test which can be applied. “Public concern” like “public interest” is a term that eludes
exact definition. Both terms embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is
for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.”217 (emphasis supplied)
executory. It is a public right that belongs to and can be invoked by the people.
Consequently, every citizen has the “standing” to challenge any violation of the right and
may seek its enforcement. 218 The self-executory status and the significance in a democracy
of the right of access to information were emphasized by the Court in Gonzales v.
Narvasa,219 viz.:
“Under both the 1973 (footnote omitted) and 1987 Constitutions, this (the right to
information) is a self-executory provision which can be invoked by any citizen before
the courts . . .
Elaborating on the significance of the right to information, the Court said in Baldoza v.
Dimaano (71 SCRA 14 [1976]. . .) that “[t]he incorporation of this right in the Constitution is
a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nation’s
problems, nor a meaningful democratic decision-making if they are denied access
to information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times.”220 (emphases supplied)
Prior to the 1973 Constitution, this right was merely statutory in character, as stressed
in Subido v. Ozaeta.221 In said case, Subido was an editor of the Manila Post. He filed a
petition for mandamus to compel the respondents Secretary of Justice and Register of Deeds
of Manila to furnish him the list of real estate properties sold to aliens and registered with the
Register of Deeds of Manila since the promulgation of Department of Justice Circular No. 128,
or to allow him to examine all records in the respondents’ custody relative to the said
transactions, after his requests to the Secretary of Justice and the Register of Deeds were
denied.
The Court upheld the contention of the respondents that the 1935 Constitution did not
guarantee freedom of information or freedom to obtain information for publication. The Court
ruled that “the right to examine or inspect public records is purely a question of
statutory construction.”222 Section 56 of Act No. 496, as amended by Act No. 3300, saved
the day for Subido, as it provided that “all records relating to registered lands in the office of
the Register of Deeds shall be open to the public subject to such reasonable regulations as
may be prescribed by the Chief of the General Land Registration Office with the approval of
the Secretary of Justice.” Hence, the petition for mandamus was granted.
The Subido Court’s interpretation of the 1935 Constitution followed U.S.
jurisprudence that did not and continues not to recognize a constitutional right of
access to information on matters of public concern. Let us briefly examine the right of
access to information in U.S. and other jurisdictions.
3. Right to information in U.S. and other jurisdictions
a. U.S. jurisdiction
The U.S. Supreme Court has recognized a constitutional right to receive
information integral to the freedom of speech under the First Amendment to the U.S.
Constitution. It has ruled, however, that the right of access to information is not
constitutionally mandated, but statutorily granted. 223
The U.S. Supreme Court first identified a constitutional right to receive information in
the 1936 case Grosjean v. American Press Company .224 In that case, the U.S. High
Court, citing Judge Cooley, held that a free and general discussion of public matters is
essential to prepare the people for an intelligent exercise of their rights as citizens. 225 In the
1976 case Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council226 widely considered to be the seminal “right to receive” case, 227 a Virginia statute
forbidding pharmacists from advertising the prices of prescription drugs was held
unconstitutional by the U.S. High Court. It reasoned that the free speech guarantee of
the First Amendment covered not only the speaker, but also the recipient of the
speech. While commercial speech was involved in that case, the Court left no doubt that the
constitutional protection for receipt of information would apply with even more force when
more directly related to self-government and public policy.228
On the premise that information is a prerequisite to meaningful participation in government,
the U.S. Congress passed the Freedom of Information Act of 1966 (FOIA). 229 In the
leading FOIA case, Environmental Protection Agency v. Mink ,230 the U.S. Supreme Court
held that the FOIA “seeks to permit access to official information long shielded unnecessarily
from public view and attempts to create a judicially enforceable public right to secure such
information from possibly unwilling official hands.”231 In Department of Air Force v.
Rose,232 the same Court held that the basic purpose of the law was “to open agency action to
the light of public scrutiny.” In National Labor Relations Board v. Robbins Tire
&Rubber Co.,233 the U.S. High Court ruled that the basic purpose of the FOIA “is to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.”234
Under the FOIA, the reason for the request for information has no bearing on the merits of
the request.235 But while the FOIA promotes a policy of public disclosure, it recognizes certain
exemptions from disclosure, among which are matters “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such Executive order.”236
Still and all, the U.S. Supreme Court characterized the right of access to information
as statutory and not constitutional in Houchins v. KQED, Inc., et al. ,237 viz.: “(T)here
is no constitutional right to have access to particular government information, or
to require openness from the bureaucracy. . . The Constitution itself is neither a
Freedom of Information Act nor an Official Secrets Act.”238 Neither the U.S. courts nor the
U.S. Congress recognizes an affirmative constitutional obligation to disclose
information concerning governmental affairs; such a duty cannot be inferred from the
language of the U.S. Constitution itself.239
Like the U.S., other countries also recognize a statutory right to information as discussed
below.
b. Other jurisdictions
(i.e., UK, Australia and New Zealand)
In the United Kingdom, the last four decades of the 20th century saw a gradual increase
in the rights of the individual to elicit information from the public authorities. 240 This trend
culminated in the passage of the “Freedom of Information Act 2000” (FOIA 2000). FOIA 2000
conferred a right of access to official information to every person, irrespective of that person’s
interest in the information. It covers all information, regardless of subject matter, but also
provides for specific exemptions.
 Exemptions under FOIA 2000 can be either absolute or qualified. When the exemption
is absolute, the right to disclosure does not apply; but when it is qualified, the right will
not be applied only if the public interest in maintaining the exemption outweighs
the public interest in disclosure of the information. 241 The weighing of the public
interest must be carried out by reference to the particular circumstances existing at the
time a request for information is made. “The central question in every case is the content of
the particular information in question. Every decision is specific to the particular facts
and circumstances under consideration.”242 Thus, while a public authority may properly
refuse to disclose information subject to a qualified exemption, a change in surrounding
circumstances may result in the public authority being obliged to disclose the information upon
a subsequent request.243
Among the qualified exemptions   are information that “would be likely to prejudice . .
. relations between the United Kingdom and any other State” 244 and “confidential information
obtained from a State other than the United Kingdom . . .”245
Ahead of the United Kingdom, the Commonwealth of Australia passed its “Freedom of
Information Act 1982 (Act 1982).” Act 1982 gives every person a legally enforceable right to
obtain access to information of a public agency without requirement to demonstrate a need to
know.246 At the same time, it recognizes two basic kinds of exemptions: (1) exemptions which
protect a document of a particular class or kind without a need to refer to the effects of
disclosure (class exemption), and (2) exemptions which depend on demonstrating a
certain likelihood that a particular harm would result from disclosure of a document
(harm-based exemption).
Covered by the harm-based exemptions are documents that “would, or could
reasonably be expected to, cause damage to . . . the international relations of the
Commonwealth” or “would divulge any information or matter communicated in confidence by
or on behalf of a foreign government, an authority of a foreign government or an international
organization to the Government of the Commonwealth, to an authority of the Commonwealth
or to a person receiving the communication on behalf of the Commonwealth or of an authority
of the Commonwealth.”247
Almost simultaneous with Australia, New Zealand enacted the “Official Information Act
1982 (OIA),” which allows its citizens, residents, persons in New Zealand, and companies
incorporated in New Zealand to request official information. Under the OIA, exemptions may
be divided into two broad classes: (1) “those that are engaged upon their terms being
satisfied,” and (2) “those that will be disengaged if, in the circumstances, the withholding of
particular information is outweighed by other considerations which render it desirable in the
public interest to make that information available.”248 Among the exemptions included in the
first class is information that would be likely to prejudice the entrusting of information to the
Government of New Zealand on a basis of confidence by the government of any other country
or any agency of such government. 249
Taking into account the higher constitutional status of the right of access to
information in Philippine jurisdiction compared with the statutorily granted right of
access to information in U.S. and other jurisdictions, let me now turn to the question of
whether executive privilege can constitute an exception to the right of access and be used to
withhold information from the public.
C. Adjudicating the constitutional right to
information vis-à-vis executive privilege in
Philippine jurisdiction
1. The general rule and the exception
With the elevation of the right to information to constitutional stature, the starting point of
the inquiry is the general rule that the public has a right to information on matters of public
concern and the State has a corresponding duty to allow public access to such information. It
is recognized, however, that the constitutional guarantee admits of exceptions such as
“limitations as may be provided by law.”250 Thus, as held in Legaspi, “in every case, the
availability of access to a particular public record” is circumscribed by two elements: (1) the
information is “of public concern or one that involves public interest,” and, (2) it is “not
exempt by law from the operation of the constitutional guarantee.”251
The question of access is first addressed to the government agency having custody of the
information sought. Should the government agency deny access, it “has the burden of
showing that the information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the operation of the
guarantee” because “(t)o hold otherwise will serve to dilute the constitutional right. As aptly
observed, ‘. . . the government is in an advantageous position to marshal and interpret
arguments against release . . .’ (87 Harvard Law Review 1511 [1974]).”252 Furthermore, the
Court ruled that “(t)o safeguard the constitutional right, every denial of access by the
government agency concerned is subject to review by the courts.”253
There is no dispute that the subject JPEPA documents are matters of public
concern that come within the purview of Article III, Section 7 of the Bill of Rights. The
thorny issue is whether these documents, despite being of public concern, are
exempt from being disclosed to petitioner private citizens on the ground that they are
covered by executive privilege.254
Unlike the U.S., U.K., Australia, and New Zealand, the Philippines does not have a
comprehensive freedom of information law that enumerates the exceptions or sources of
exceptions255 to the right to information. In our jurisdiction, various laws provide exceptions
from the duty to disclose information to the public, such as Republic Act No. 8293 or the
“Intellectual Property Code,” Republic Act No. 1405 or the “Secrecy of Bank Deposits Act,” and
Republic Act No. 6713 or the “Ethical Standards Act.”256
Respondents contend that Executive Order 464 (E.O. 464), “Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect
for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under
the Constitution, and for other Purposes,”257 provides basis for exemption of the subject JPEPA
documents from the operation of the constitutional guarantee of access to information. They
argue that while Senate v. Ermita struck down Sections 2(b) and 3 of E.O. 464 as
unconstitutional, Section 2(a), which enumerates the scope of executive privilege including
information prior to the conclusion of treaties, was spared from a declaration of constitutional
infirmity.258 However, it is easily discernible from the title and provisions of E.O. 464 that this
presidential issuance  applies to executive privilege invoked against the legislature
in the context of inquiries in aid of legislation, and not to executive privilege
invoked against private citizens asserting their constitutional right to
information.259 It thus cannot be used by respondents to discharge their burden of showing
basis for exempting the subject JPEPA documents from disclosure to petitioners suing as
private citizens.
Respondents also rely on Almonte, Chavez v. PCGG, Senate v. Ermita , and PMPF v.
Manglapus  to carve out from the coverage of the right to information the subject JPEPA
documents. Let us put these cases under the lens of scrutiny to determine the correctness of
respondents’ reliance upon them.
As noted earlier, Almonte recognized a common law governmental privilege against
disclosure, with respect to state secrets bearing on military and diplomatic
matters.260 his case involved an investigation by the Office of the Ombudsman that required
the Economic Intelligence and Investigation Bureau (EIIB) to produce records pertaining to
their personnel. As the Court found that no military or diplomatic secrets would be disclosed
by the production of these records and there was no law making them classified, it held that
disclosure of the records to the Office of the Ombudsman was warranted. In arriving at this
conclusion, the Court noted that the case did not concern a demand by a citizen for
information under the freedom of information guarantee of the Constitution, but
involved the power of the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government.
It is thus not difficult to see that the facts and issue of Almonte starkly differ from the case
of petitioner private citizens who are enforcing their constitutional right to
information. Given this distinction, I submit that Almonte cannot provide the backbone for
exemption of the subject JPEPA documents from disclosure. The same holds true with respect
to Senate v. Ermita in which the constitutionality of E.O. 464 was at issue, and the Court
ruled, viz.:
“E.O. 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings conducted by it, and not with the demands of
citizens for information pursuant to their right to information on matters of public
concern.”261 (emphasis supplied)
In Chavez v. PCGG, the Court, citing the above-quoted exchanges of the Constitutional
Commissioners regarding the constitutional right to information, recognized that “information
on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest.”
Be that as it may, in Chavez v. PCGG, the Court resolved the issue whether the government,
through the Presidential Commission on Good Government (PCGG), could be compelled to
disclose the proposed terms of a compromise agreement with the Marcos heirs as
regards their alleged ill-gotten wealth. The Court did not have occasion to rule on the
diplomatic secrets privilege vis-à-vis the constitutional right to information.
It was in PMPF v. Manglapus that the Court was confronted with a collision between a
citizen’s constitutional right to information and executive secrecy in foreign affairs. As afore-
discussed, the Court, in denying the petition in an unpublished Resolution, quoted at
length Curtiss-Wright’s disquisition on the necessity of secrecy in foreign negotiations.
Again, the relevant portion of that quote, which was cited by respondents, reads, viz.:
“In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress
itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in
the House of Representatives, ‘The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.’ Annals, 6th Cong.,
col. 613.
x x x   x x x   x x x
It is important to bear in mind that we are here dealing not alone with an authority
vested in the President by an exertion of legislative power, but with such an
authority plus the very delicate, plenary and exclusive power of the President as
the sole organ of the federal government in the field of international relations—a
power which does not require as a basis for its exercise an act of Congress, but
which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It is quite apparent
that if, in the maintenance of our international relations, embarrassment—perhaps serious
embarrassment—is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom from statutory
restriction which would not be admissible were domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials. Secrecy
in respect of information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. Indeed, so clearly is this true
that the first President refused to accede to a request to lay before the House of
Representatives the instructions, correspondence and documents relating to the negotiation of
the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has
never since been doubted.”262 (emphasis supplied)
The Court followed this quote with the conclusion that “(w)e have the same doctrine of
separation of powers in the Constitution and the same grant of authority in foreign affairs
to the President as in the American system. The same reasoning applies to treaty negotiations
by our Government.”
Taking a hard look at the facts and circumstances of PMPF v. Manglapus, it cannot
escape one’s eye that this case did not involve a question of separation of powers
arising from a legislative inquiry, as in the case of the House of Representative’s demand
on President Washington for papers relating to the Jay Treaty. In PMPF v. Manglapus,
petitioners invoked their right to information under Article III, Section 7; and freedom of
speech and the press under Article III, Section 4. They sought to compel the representatives
of the President of the Philippines in the then ongoing negotiations of the RP-U.S. Military
Bases Agreement to (1) open to petitioners the negotiations/sessions of respondents with
their U.S. counterparts on the RP-U.S. Military Agreement; (2) reveal and/or give petitioners
access to the items which they (respondents) had already agreed upon with their American
counterparts relative to the review of the RP-U.S. Military Bases Agreement; and (3) reveal
and/or make accessible to petitioners the respective positions of respondents and their U.S.
counterparts on items they had not agreed upon, particularly the compensation package for
the continued use by the U.S. of their military bases and facilities in the Philippines. The above
quote from Curtiss-Wright, referring to a conflict between the executive and the legislative
branches of government, was therefore different from the factual setting of PMPF v.
Manglapus. The latter case which involved a collision between governmental power over the
conduct of foreign affairs with its secrecy prerogative on the one hand, and the citizen’s right
to information under the Constitution on the other.
The PMPF Court did stress that secrecy of negotiations with foreign countries did not
violate freedom of access to information and freedom of speech and of the press.
Significantly, it quoted The New American Government and Its Work , viz.:
“The nature of diplomacy requires centralization of authority and expedition of decision
which are inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about “open” and “secret” diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed
and justified the practice. In the words of Mr. Stimson:
“A complicated negotiation… cannot be carried through without many, many private talks and
discussions, man to man; many tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at home and of their differences
with other countries and with other delegates; they tell you of what they do under certain
circumstances and would not do under other circumstances . . . If these reports . . . should
become public . . . who would ever trust American Delegations in another conference? (United
States Department of State, Press Releases, June 7, 1930, pp. 282-284).
x x x   x x x   x x x
“There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, ‘It can be said that there is no more rigid system of
silence anywhere in the world.’ (E.J. Young, Looking Behind the Censorship, J.B. Lippincott
Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared
that we must have ‘open covenants, openly arrived at.’ He quickly abandoned his thought.
“No one who has studied the question believes that such a method of publicity
is possible. In the moment that negotiations are started, pressure groups attempt
to ‘muscle in.’ An ill-timed speech by one of the parties or a frank declaration of the
concessions which are extracted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved.” (The New American Government and Its Work , James T. Young, 4th edition,
p. 194)”263 (emphasis supplied)
It is worth noting that while the above quote speaks of the evil of “open” diplomacy, it
does not discuss the value of the right of access to information; much less, one that is
constitutional in stature. The New American Government and Its Work  was published in
1940, long before the Freedom of Information Act was passed in the U.S. in 1966. It did not
and could not have taken into account the expanded statutory right to information in FOIA. It
is more doubtful if this book can be used to calibrate the importance of the right of
access to information in the Philippine setting, considering its elevation as a
constitutional right.
Be that as it may, I submit that as both Chavez v. PCGG and PMPF v.
Manglapus are extant case law recognizing the constitutionally-based diplomatic
secrets privilege over treaty negotiations, respondents have discharged the burden of
showing the bases for exempting the subject JPEPA documents from the scope of the
constitutional right to information.
Prescinding from these premises, the next question to grapple with is whether the
exemption or diplomatic secrets privilege over treaty negotiations as recognized in Chavez v.
PCGG  and PMPF v. Manglapus is absolute or qualified.
2. Diplomatic secrets privilege covering treaty negotiations: An absolute or
qualified exemption?
It is my considered view that the diplomatic secrets privilege is a qualified privilege or
qualified exemption from the coverage of the right to information. In Chavez v. PCGG, the
Court cited the following deliberations of the 1986 Constitutional Commission in recognizing
that “inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest,” viz.:
MR. SUAREZ. And when we say “transactions” which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or does he refer to the contract
itself?
MR. OPLE. The “transactions” used here, I suppose, is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated
contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national interest.
MR. SUAREZ. Thank you. Will the word “transactions” here also refer to
treaties, executive agreements and service contracts particularly?
MR. OPLE. I suppose that is subject to reasonable safeguards on national
interest which include the national security.”264 (emphasis supplied)
The above deliberations show that negotiation of treaties and executive agreements may or
may not come within the purview of “transactions” covered by the right to
information, subject to reasonable safeguards to protect national interest. 265 In other
words, the diplomatic secrets privilege over treaty negotiations may provide a ground for
exemption, but may be overcome if there are reasonable safeguards to protect the
national interest. It is thus not an absolute exemption or privilege, but a qualified
one.
The Freedom of Information Act 2000 of the United Kingdom  provides that when an
exemption is qualified, the right to information will not be upheld only if   the public
interest in maintaining the exemption outweighs the public interest in disclosure
of the information. The Act treats as qualified exemptions information that “would be likely
to prejudice . . . relations between the United Kingdom and any other State”266 and
“confidential information obtained from a State other than the United Kingdom. . .  .”267 As
such, these exemptions may be overcome by a higher public interest in disclosure.
 It may be argued that the subject JPEPA documents consist of information similar to
information covered by the above-cited qualified exemptions under the Freedom of
Information Act 2000. The qualification of the above exemptions in the United Kingdom is
made in the context of a statutory grant of a right to information. In the Philippines where the
right to information has more force and effect as a constitutional right, there is all the more
reason to give it stronger muscle by qualifying the diplomatic secrets privilege exemption. This
approach minimizes the risk of unjustifiably withholding diplomatic information that is of public
concern but covered by overly broad absolute exemptions.
We thus come to the task of cobbling the appropriate test to weigh the public
interest in maintaining the exemption or privilege over diplomatic secrets and the
public interest in upholding the constitutional right to information and disclosing
the subject JPEPA documents.
3. The test to use in adjudicating the constitutional right to information vis-à-vis
executive
privilege is the “balancing of interests,”
and not the “showing of need”
While I agree with the ponencia’s treatment of the diplomatic secrets privilege as a
qualified privilege and its recognition of the need to formulate a weighing test, it is my humble
view that, contrary to its position, we cannot use the test laid down in U.S. v.
Nixon,268 Senate Select Committee v. Nixon ,269 and In re Sealed Case (Espy) 270 that
the Court should determine whether there is a “sufficient showing of need” for the disclosure
of disputed documents. None of these three cases can provide the proper test.   The
requirement of “showing of need” applies when executive privilege is invoked against
an evidentiary need for information, such as in the case of another government
entity seeking information in order to perform its function; that is, the court in U.S. v.
Nixon, the Senate in Senate Select Committee, and the grand jury in In re Sealed Case
(Espy).
In the adjudication of rights guaranteed in the Constitution, however, the Court
has never used “showing of need” as a test to uphold rights or allow inroads into
them.  I respectfully submit that we ought not to weigh the need to exercise the right to free
speech or free assembly or free practice of religion. These are freedoms that have been won
by all for the benefit of all, without the requisite showing of need for entitlement. When we
valuate these constitutional rights, we do not consider their necessity for the performance of a
function, as in the case of government branches and entities. The question in the
adjudication of constitutional rights is whether the incursion into a right is peripheral or
essential, as when there is only a “soft restraint” on the potential extraditee’s right to
procedural due process;271 or whether there is a heavier public interest that must prevail
over a constitutional right in order to preserve an ordered society, such as when there is a
“clear and present danger” of a substantive evil that the State has a right to prevent as
demonstrated in free speech cases,272 or when there is a “compelling state interest” that
must override the free exercise of religion.273
The right to information lies at the heart of a government that is not only
republican but also democratic. For this reason, Article III, Section 7274 of the 1987
Constitution, calls for “an informed citizenry with access to the diverse currents in political,
moral and artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon is vital to the democratic government envisioned under our
Constitution.”275 Thus, employing the “balancing of interests” test, the public interest in
upholding this constitutional right of the public to information must be
carefully balanced with the public interest in nondisclosure of information in relation to treaty
negotiations. This test is in line with the approach adopted in the right to access statute of the
United Kingdom and New Zealand.
There is a world of difference between employing the “balancing of interests” test and
the “showing of need” test adopted by the ponencia  from U.S. v. Nixon, Senate Select
Committee v. Nixon, and In re Sealed Case (Espy).  In U.S. v. Nixon, the “showing of need”
was necessary, as the information was being sought by a court as evidence in a criminal
proceeding. In Senate Select Committee , the information was being sought by the
Senate to resolve conflicting testimonies in an investigation conducted in the
exercise of its oversight functions over the executive branch and in aid of
legislation pertaining to executive wrongdoing. Finally, in In re Sealed Case (Espy) ,
the information was being sought by the grand jury to investigate whether a government
official had committed a crime.
In weighing the “showing of need” in all three cases, the courts considered the relevance
of the evidence, the availability of other evidence, and the criticality of the information sought
in the performance of the functions of the court, the Senate, and the grand jury, respectively.
These considerations have no meaning in petitioners’ assertion of their right to information,
for there is no proceeding in relation to which these considerations can be measured. It easily
leaps to the eye that these considerations do not apply to adjudication on the constitutional
right to information in relation to executive privilege, but the ponencia does not state what the
“showing of need” consists of in the context of the public’s assertion of the right to
information
Insofar as the constitutional right of access is concerned, the writing on the wall indicates
that it suffices that information is of public concern for it to be covered by the right,
regardless of the public’s need for the information—whether to assess the performance
of the JPEPA Philippine negotiating panel and express satisfaction or dissatisfaction, or to
protest the inclusion of repulsive provisions in the JPEPA, or to keep public officials on their
toes by making them aware that their actions are subject to public scrutiny—or regardless
of  the public’s lack of need for the information, if they simply want to know it
because it interests them. 276
The right to information is a constitutional right in and of itself and does not derive its
significance only in relation to the exercise of another right, such as the right to free speech or
a free press if that is the kind of “function” of an individual that can be equated with the
functions of government agencies in the above cases cited by the ponencia. To
reiterate, Valmonte teaches that the right to information is not merely an adjunct of the right
to free speech and a free press. Stated another way, the right to information is an end in
itself, even as it may be exercised in furtherance of other rights or purposes of an individual.
To say that one exercises the right to information simply to be informed, and not because of a
particular need, is not a meaningless tautology. Thus, instead of using “showing of need” as a
passport to access purportedly privileged information, as in the case of government entities
needing information to perform a constitutionally mandated duty, the yardstick with
respect to individuals exercising a constitutionally granted right to information should be the
importance of the right and the public interest in upholding it.
Prescinding from these premises, I respectfully submit that the test laid down by
the ponencia—which predicates access to information on a “showing of need” understood in
the context of U.S. v. Nixon, Senate Select Committee v. Nixon , and In re Sealed
Case (Espy)—will have the pernicious effect  of subverting the nature, purpose and
wisdom of including the “right to information on matters of public concern” in the Bill of Rights
as shown in the above-quoted deliberations of the 1986 Constitutional Commission. It sets
an emasculating precedent on the interpretation of this all-important constitutional right
and throws into perdition the philosophy of an open government, painstakingly enshrined
by the framers of the 1987 Constitution in the many scattered provisions from beginning to
end of our fundamental law.
Applying the balancing of interests test to the case at bar leads to the ineluctable
conclusion that the scale must be tilted in favor of the people’s right to information for, as
shown earlier, the records are bereft of basis for finding a public interest to justify
the withholding of the subject JPEPA documents after the negotiations have been
concluded. Respondents have not shown a sufficient and specific public interest to
defeat the recognized public interest in exercising the constitutional right to information
to widen the role of the citizenry in governmental decision-making by giving them
a better perspective of the vital issues confronting the nation, 277 and to check
abuse in government.278
As aforestated, the negotiations are already concluded and the JPEPA has been
submitted to the Senate for its concurrence. The treaty has thus entered the ultimate
stage in which the people can exercise their right to participate in the discussion on whether
the Senate should concur in its ratification or not. This right will be diluted, unless the
people can have access to the subject JPEPA documents.
The ponencia cites PMPF v. Manglapus, Chavez v. PCGG  and Chavez v. Public
Estates Authority279 and Senate v. Ermita as authorities for holding that the subject
JPEPA documents are traditionally privileged; and emphasizes that “(t)he privileged character
accorded to diplomatic negotiations does not ipso facto  lose all force and effect simply
because the same privilege is now being claimed under different circumstances.”280 This
approach espoused by the ponencia, however, deviates from the fundamental teaching
of Senate v. Ermita that a claim of executive privilege may be held “valid or not depending
on the ground invoked to justify it and the context in which it is made.” 
In U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S. Supreme Court
was careful to delineate the applicability of the principles of the case in stating that “(w)e are
not here concerned with the balance between the President’s generalized interest in
confidentiality and the need for relevant evidence in civil litigation, nor with that between the
confidentiality interest and congressional demands for information, nor with the President’s
interest in preserving state secrets. We address only the conflict between the President’s
assertion of a generalized privilege of confidentiality and the constitutional need for relevant
evidence in criminal trials.”281 I respectfully submit that the Court likewise ought to take
half a pause in making comparisons and distinctions between the above Philippine
cases cited by the ponencia and the case at bar; and examine the underlying
reasons for these comparisons and distinctions, lest we mistake apples for
oranges.
That the application of the “showing of need” test to executive privilege cases involving
branches of government and of the “balancing of interests” test to cases involving the
constitutional right to information could yield different results is not an absurdity. The
difference in results would not be any more absurd than it would be for an accused to be
adjudged innocent in a criminal action but liable in a civil action arising from one and the same
act he committed.282 There is no absurdity when a distinction is made where there are real
differences.
Indeed, it is recognized that executive privilege is also constitutionally based. Proceeding
from the respondents’ and the ponencia’s  reliance on Curtiss-Wright, even this case, as
aforestated, makes a qualification that the foreign relations power of the President, “like
every other governmental power, must be exercised in subordination to the
applicable provisions of the Constitution.” 283 In drawing the contours and restrictions of
executive privilege, which finds its origins in the U.S., the constitutional status of the right to
information in the Philippines—which is not true of the statutory right to information in the
U.S.—must at the same time be given life, especially considering the many contested
provisions of the JPEPA as shown in the ensuing discussion.
D. Right to information, informed debate,
and the contested provisions of the JPEPA
The exercise of the right to information and informed debate by the public on the JPEPA
are crucial in light of the comprehensiveness and impact of this agreement. It is an amalgam
of two distinct agreements—a bilateral free trade agreement and a bilateral investment
agreement. Thus, international and constitutional law expert Justice Florentino P. Feliciano
cautions that we must be “twice as awake, twice as vigilant” in examining very carefully
the provisions of the agreement.284 The nearly 1,000-page JPEPA contains 16 chapters, 165
articles and eight annexes covering a wide  range of economic cooperation including
trade in goods, rules of origin, customs procedures, paperless trading, mutual recognition,
trade in services, investment, movement of natural persons, intellectual property, government
procurement, competition, improvement of the business environment, cooperation and dispute
avoidance and settlement.
The JPEPA’s comprehensive scope is paralleled by the widespread expression of
concern over its ratification. In the Senate, there is a move to concur in the President’s
ratification provided that the JPEPA comply with our constitutional provisions on public
health, protection of Filipino enterprises, ownership of public lands and use of natural
resources, ownership of private lands, reservation of certain areas of investment to Filipinos,
giving to Filipinos preference in the national economy and patrimony, regulation of foreign
investments, operation of public utilities, preferential use of Filipino labor and materials,
practice of professions, ownership of educational institutions, state regulation of transfer of
technology, ownership of mass media, and ownership of advertising firms.
Among scholars and the public, not a few have registered strong reservations on the
ratification of the JPEPA for its being studded with provisions that are detrimental to the
Filipino interest.285 While the executive branch and other groups have expressed support for
the JPEPA, these contested provisions, at the very least, merit public debate and access
to the subject JPEPA documents, for they have far-reaching effects on the public’s
interest and welfare.
Two highly contested JPEPA provisions are Articles 89 and 94. Advocates against the
JPEPA contend that these provisions run afoul of the 1987 Constitution, primarily Article XII,
on the National Economy and Patrimony. Article 89 of the JPEPA provides for National
Treatment, viz.:
Article 89
National Treatment
Each Party shall accord to investors of the other Party and to their investments
treatment no less favorable than that it accords, in like circumstances, to its own
investors and to their investments with respect to the establishment, acquisition,
expansion, management, operation, maintenance, use, possession, liquidation, sale, or other
disposition of investments.
In the opinion rendered by Justice Feliciano in response to the invitation to deliver a
statement at a hearing of the Senate Joint Committee on Foreign Relations and the Committee
on Trade and Commerce, he explained that the “national treatment” obligation requires the
Philippines to “treat Japanese investors as if they were Philippine nationals, and to treat
Japanese investments in the Philippines as if such investments were owned by Philippine
nationals.”286 This provision raises serious constitutional questions and need untrammeled
discussion by the public, as entry into certain sectors of economic activity in our country is
restricted to natural persons who are Philippine citizens or to juridical persons that are at least
sixty, seventy or one hundred percent owned by Philippine citizens. Among these
constitutional provisions are Article XII, Section 2 on the utilization of lands and other natural
resources of the Philippines;287 Article XII, 
Section 11 on the operation of public utilities; 288 Article XII,  Section 14, paragraph 2 on the
practice of professions;289 and Article XIV, Section 4(2),290 among others.291 
To be sure, Article 94 of the JPEPA provides for an option on the part of the Philippines to
uphold the constitutional and statutory provisions referred to above despite their collision with
the “national treatment” obligation in Article 89. That option is exercised by listing, in the
Schedule to Part I of Annex 7 of the JPEPA, the existing non-conforming constitutional and
legal provisions that the Philippines would like to maintain in effect, notwithstanding the
requirements of Article 89 of the JPEPA.292 The Philippines exercised that option by attaching
its Schedule to Part I of Annex 7 of the JPEPA. Be that as it may, some scholars note that the
Philippine Schedule is not a complete list of all the currently existing constitutional and
statutory provisions in our legal system that provide for exclusive access to certain economic
sectors by Philippine citizens and Philippine juridical entities that have a prescribed minimum
Philippine equity content. They claim that the most dramatic example of an omission is the
aforementioned Article XII, Section 11 of the Constitution, relating to the operation of public
utilities. They cite other examples: the afore-mentioned Article XII, Section 14 relating to the
practice of all professions, save in cases prescribed by law; Article XIV, Section 4(2) relating to
ownership and administration of educational institutions; Article XVI, Section 11(1) 293 relating
to mass media; and Article XVI, Section 11(2)294 relating to the advertising industry.295
On trade and investment, former U.P. College of Law Dean Merlin Magallona, an
international law expert, explained as resource person in the hearing of the Senate Joint
Committee on Foreign Relations and the Committee on Trade and Commerce that, under
Articles 96 and 98 of the JPEPA, the Philippines stands as an insurance company for Japanese
investments against private acts.296
Articles 96 and 98 of the JPEPA provide, viz.:
Article 96
Protection from Strife
1. Each Party shall accord to investors of the other Party that have suffered loss or
damage relating to their investments in the Area of the former Party due to armed conflict or
state of emergency such as revolution, insurrection, civil disturbance or any other similar
event in the Area of that former Party, treatment, as regards restitution, indemnification,
compensation or any other settlement, that is no less favorable than the most favorable
treatment which it accords to any investors.
2. Any payments made pursuant to paragraph 1 above shall be effectively realizable,
freely convertible and freely transferable.
Article 98
 Subrogation
1. If a Party or its designated agency makes a payment to any of its investors pursuant
to an indemnity, guarantee or insurance contract, arising from or pertaining to an investment
of that investor within the Area of the other Party, that other Party shall:
(a) recognize the assignment, to the former Party or its designated agency, of
any right or claim of such investor that formed the basis of such payment; and
(b) recognize the right of the former Party or its designated agency to exercise
by virtue of subrogation any such right or claim to the same extent as the original
right or claim of the investor.
2. Articles 95, 96 and 97 shall apply mutatis mutandis  as regards payment to be made to
the Party or its designated agency first mentioned in paragraph 1 above by virtue of such
assignment of right or claim, and the transfer of such payment.
Dean Magallona pointed out that under Articles 96 and 98 of the JPEPA, the Japanese
government may execute with a Japanese investor in the Philippines a contract of indemnity,
guaranty, or insurance over loss or damage of its investments in the Philippines due to
revolution, insurrection, or civil disturbance. Compensation by the Japanese government to its
investor under such contract will give rise to the right of the Japanese government to be
subrogated to the right or claim of the Japanese investor against the Philippine government.
The Philippines recognizes explicitly this assignment of right or claim of the Japanese investor
against the Philippine Government under Article 98. In effect, he warns that the Philippines
has made itself liable for acts of private individuals engaged in revolution, insurrection or civil
disturbance. He submits that this is an abdication of sovereign prerogative, considering that
under general or customary international law, the Philippines is subject to international
responsibility only by reason of its own sovereign acts, not by acts of private persons.297
Environmental concerns have also been raised in relation to several provisions of the
JPEPA, among which is Article 29 on Originating Goods, which provides, viz.:
Article 29
Originating Goods
1. Except as otherwise provided for in this Chapter, a good shall qualify as an originating
good of a Party where:
(a) the good is wholly obtained or produced entirely in the Party, as defined in
paragraph 2 below;
(b) the good is produced entirely in the Party exclusively from originating
materials of the Party; or
(c) the good satisfies the product specific rules set out in Annex “2,” as well as all
other applicable requirements of this Chapter, when the good is produced entirely in
the Party using nonoriginating materials.
2. For the purposes of subparagraph 1(a) above, the following goods shall be considered
as being wholly obtained or produced entirely in a Party:
x x x   x x x   x x x
 (i) articles collected in the Party which can no longer perform their original
purpose in the Party nor are capable of being restored or repaired and which are fit
only for disposal or for the recovery of parts or raw materials;
(j) scrap and waste derived from manufacturing or processing operations or from
consumption in the Party and fit only for disposal or for the recovery of raw materials;
(k) parts or raw materials recovered in the Party from articles which can no
longer perform their original purpose nor are capable of being restored or repaired;
and 
(l) goods obtained or produced in the Party exclusively from the goods referred
to in subparagraphs (a) through (k) above.
Annex 1298 of the JPEPA reduced the tariff rates for these goods to zero percent, below the
minimum set forth in the current Philippine schedule, JPEPA opponents point out. 299 There are
allegations from the public that the above provisions on trade of toxic and hazardous
wastes  were deleted in the working draft text of the JPEPA as of 21 April 2003, but these
provisions found their way back into the final text signed by President Macapagal-Arroyo. If
true, it would be in the public’s interest to know why said provisions were put back, as they
affect the public welfare; and how it is in the Philippine interest to include them in the
JPEPA.300 
 
Various concerned sectors have also expressed their objection to some provisions of the
JPEPA. A substantial number of fishermen harp on the inadequacy of protection given to
their sector and the violation of the Philippine Constitution with respect to deep-sea fishing. In
Annex 7, 2B (Schedule of the Philippines) 301 of the JPEPA, the Philippine government made a
reservation on national treatment by invoking Article 12 of the 1987 Constitution under the
heading: “Sector: Fisheries, Sub-sector: Utilization of Marine Resource.”302 The measures
invoked by the Philippine government are: 1) no foreign participation is allowed for small-scale
utilization of marine resources in archipelagic waters, territorial sea and Exclusive Economic
Zones; 2) for deep-sea fishing corporations, associations or partnerships having a maximum
40 percent foreign equity can enter into co-production, joint venture or production-sharing
agreement with the Philippine government. 303 Concerned sectors contend, however, that the
second measure violates Article XII, Section 2 of the Philippine Constitution which mandates,
without qualification, the protection of the nation’s marine wealth in Philippine archipelagic
waters, territorial sea and EEZ; and reserves “its use and enjoyment exclusively to Filipino
citizens.”304
The food sector also complains about the insufficiency of protection from export
subsidies under Article 20 of the JPEPA, which, according to it, makes it possible for Japan to
engage in agriculture dumping, one of the most trade-distorting practices of rich
countries.305 Article 20 of the JPEPA, provides viz.:
Article 20
Export Duties
Each Party shall exert its best efforts to eliminate its duties on goods exported from the
Party to the other Party. (emphasis supplied)
This sector raises the objection that while the JPEPA only requires “best efforts,” both the
Japan-Indonesia Economic Partnership Agreement (JIEPA) and the Japan-Malaysia   Economic
Partnership Agreement (JMEPA) disallow the introduction or the maintenance of agriculture
export subsidies.306
Without adjudging the merits of objections to the above provisions of the JPEPA, the fact
that these concerns are raised and that these provisions will impact on the lives of our people
stress the need for an informed debate by the public on the JPEPA. Rooted in the unique
Philippine experience, the 1987 Constitution strengthened participatory democracy
not only in our political realm but also in the economic arena. Uninformed
participation in the governance of the country impairs the right of our people to
govern their lives while informed debate serves as the fountainhead from which
truth and the best interest of the country will spring.
By upholding the constitutional right to information over the invocation of executive
privilege in the instant case, it is my considered view that the subject JPEPA
documents should be disclosed considering the particular circumstances of the case at
bar. In arriving at this conclusion, a balancing of interests test has to be employed which
will allow the executive to show the public interest it seeks to protect in invoking executive
privilege. The test serves as a safeguard against disclosure of information that should
properly be kept secret. There is thus no foundation for the fears expressed in the Separate
Opinion of Justice Tinga, viz.: “(The ruling) would establish a general rule that diplomatic
negotiations of treaties and other international agreements . . . belong to the public record
since it is encompassed within the constitutional right to information . . . if indeed the
Philippines would become unique among the governments of the world in establishing that
these correspondences related to treaty negotiations are part of the public record, I fear that
such doctrine would impair the ability of the Philippines to  negotiate treaties or agreements
with foreign countries.” As afore-discussed, allowing public access to trade agreement
negotiations and draft texts, in various degrees and ways, has gained momentum in the
landscape of U.S. diplomatic and foreign relations. I submit that, when warranted, we must
overcome the entropy of the old tradition of secrecy.
Contrary to the Separate Opinion of Justice Tinga, the Executive as the custodian of
records of negotiations of treaties and other international agreements has the discretion to
classify information as confidential in accordance with applicable laws, and not let it become
part of the public record of a government in the sunshine. But when the executive is haled to
court to enforce a constitutional right to this information, it is the court’s task in each
particular case to balance the executive’s need for secrecy in treaty negotiations
with the constitutional right to information, and decide whether that particular
information should be disclosed or kept confidential. 307 Finally, the discussion in the Separate
Opinion of Justice Tinga on the application of Article 32, Supplementary Means of
Interpretation, of the Vienna Convention on the Law of Treaties308 and the question of whether
the subject JPEPA documents constitute “preparatory work” under this provision
are premature, as the Philippine Senate has not concurred in the ratification of the JPEPA;
hence, it has not entered into force. I submit that the question is not relevant to the resolution
of the case at bar, as we are not here engaged in an interpretation of the JPEPA.
In sum, transparency and opacity are not either-or propositions in the conduct of
international trade agreement negotiations. The degree of confidentiality necessary in a
particular negotiation is a point in a continuum where complete disclosure and absolute
secrecy are on opposite ends.309 In assigning this fulcrum point, it is my humble view that the
Court should balance the need for secrecy of the Executive and the demand for information by
the legislature or the public. The balancing act in every case safeguards against disclosure of
information prejudicial to the public interest and upholds the fundamental principle enunciated
in Senate v. Ermita310—that a claim of executive privilege “may be valid or not depending
on the ground invoked to justify it and the context in which it is made.”311
We elevated the right to information to constitutional stature not without
reason. In a democracy, debate—by the people directly or through their
representatives in Congress—is a discussion of and by the informed and not an
exchange of surpluses of ignorance .312  In the arena of economic governance, the
right  to debate and participate is exercised not as an end in itself. Especially for
the powerless whose sword and shield against abuse is their voice, the exercise of
the right is not merely rhetoric. It is a fight from the gut to satisfy basic human
needs and lead a humane life.
I vote to grant the petition.
Petition dismissed.
Notes.—A case is moot and academic when there is no more actual controversy between
the parties or no useful purpose can be served in passing upon the merits. (NPC Employees
Consolidated Union [NECU] vs. National Power Corporation, 522 SCRA 12 [2007])
While direct recourse to the Supreme Court is generally frowned upon and discouraged,
such resort may be allowed if the redress desired cannot be obtained in the appropriate courts
or where exceptional compelling circumstances justify availment of a remedy within and
calling for the exercise of the Supreme Court’s primary jurisdiction. Serious constitutional
challenges allegedly affecting the right of Filipinos to the distribution of natural resources in
the country and the right to information of a citizen compel the Court to turn a blind eye to
the judicial structure meant to provide an orderly dispensation of justice and consider the
instant petition as a justified deviation from an established precept. (Chavez vs. National
Housing Authority, 530 SCRA 235 [2007])
——o0o——
_______________
Yancey (Jan. 6, 1816), in 10 The Writings of Thomas Jefferson 4 (Paul L. Ford ed., 1899),
cited in Library of Congress, Respectfully Quoted 97 (Suzy Platt ed., 1989)
 G.R. No. 170132. December 6, 2006.*
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in
his capacity as GSIS President & General Manager, petitioners, vs. KAPISANAN NG
MGA MANGGAGAWA SA GSIS, respondent.
Administrative Law; Civil Service Law; It should be stressed right off that the civil
service encompasses all branches and agencies of the government, including government-
owned or controlled corporations (GOCCs) with original charters, like the GSIS, or those
created by special law—as such, employees of covered GOCCs are part of the civil service
system and are subject to circulars, rules and regulations issued by the Civil Service
Commission (CSC) on discipline, attendance and general terms/conditions of employment,
inclusive of matters involving self-organization, strikes, demonstrations and like concerted
actions.—It should be stressed right off that the civil service encompasses all branches and
agencies of the Government, including government-owned or controlled corporations (GOCCs)
with original charters, like the GSIS, or those created by special law. As such, employees of
covered GOCCs are part of the civil service system and are subject to circulars, rules and
regulations issued by the Civil Service Commission (CSC) on discipline, attendance and general
terms/conditions of employment, inclusive of matters involving self-organization, strikes,
demonstrations and like concerted actions. In fact, policies established on public sector
unionism and rules issued on mass action have been noted and cited by the Court in at least a
case. Among these issuances is Executive Order (EO) No. 180, series of 1987, providing
guidelines for the exercise of the right to organize of government employees. Relevant also is
CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the
public sector.
Same; Same; In Alliance of Government Workers v. Minister of Labor and Employment
(124 SCRA 1 [1983]), a case decided under the aegis of the 1973 Constitution, an en banc
Court declared that it would be unfair to allow employees of the government corporations to
resort to concerted activity with the ever present threat of a strike to wring benefits from
Government.—In Alliance of Government Workers v. Minister of Labor and Employment, (124
SCRA 1), a case decided under the aegis of the 1973 Constitution, an en banc Court declared
that it would be unfair to allow employees of government corporations to resort to concerted
activity with the ever present threat of a strike to wring benefits from Government. Then came
the 1987 Constitution expressly guaranteeing, for the first time, the right of government
personnel to self-organization to complement the provision according workers the right to
engage in “peaceful concerted activities, including the right to strike in accordance with law.”
Same; Same; Public Officers; Employees in the public service may not engage in strikes
or in concerted and unauthorized stoppage of work; that the right of government employees
to organize is limited to the formation of unions or associations, without including the right to
strike.—It was against the backdrop of the aforesaid provisions of the 1987 Constitution that
the Court resolved Bangalisan v. Court of Appeals, 276 SCRA 619 (1997). In it, we held,
citing Manila Public School Teachers Association (MPSTA) v. Laguio, Jr., 200 SCRA 323 (1991),
that employees in the public service may not engage in strikes or in concerted and
unauthorized stoppage of work; that the right of government employees to organize is limited
to the formation of unions or associations, without including the right to strike.
Same; Same; Same; Public employees going on disruptive unauthorized absences to
join concerted mass actions may be held liable for conduct prejudicial to the best interest of
the service.—And in the fairly recent case of Gesite v. Court of Appeals, 444 SCRA 51 (2004),
the Court defined the limits of the right of government employees to organize in the following
wise: It is relevant to state at this point that the settled rule in this jurisdiction is that
employees in the public service may not engage in strikes, mass leaves, walkouts, and other
forms of mass action that will lead in the temporary stoppage or disruption of public service.
The right of government employees to organize is limited to the formation of unions or
associations only, without including the right to strike, adding that public employees going on
disruptive unauthorized absences to join concerted mass actions may be held liable for
conduct prejudicial to the best interest of the service.
Same; Same; Words and Phrases; The phrase “prohibited concerted activity” refers to
any collective activity undertaken by government employees, by themselves or through their
employees’ organization, with the intent of effecting work stoppage or service disruption in
order to realize their demands or force concessions, economic or otherwise; it includes mass
leaves, walkouts, pickets and acts of similar nature.—With the view we take of the events that
transpired on October 4-7, 2004, what respondent’s members launched or participated in
during that time partook of a strike or, what contextually amounts to the same thing, a
prohibited concerted activity. The phrase “prohibited concerted activity” refers to any
collective activity undertaken by government employees, by themselves or through their
employees’ organization, with the intent of effecting work stoppage or service disruption in
order to realize their demands or force concessions, economic or otherwise; it includes mass
leaves, walkouts, pickets and acts of similar nature. Indeed, for four straight days,
participating KMG members and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the very doorstep of the GSIS main
office building. The record of attendance for the period material shows that, on the first day of
the protest, 851 employees, or forty-eight percent (48%) of the total number of employees  in
the main office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m., leaving
the other employees to fend for themselves in an office where a host of transactions take
place every business day. On the second day, 707 employees left their respective work
stations, while 538 participated in the mass action on the third day. A smaller
number, i.e., 306 employees, but by no means an insignificant few, joined the fourth day
activity.
Same; Same; The principle of accountability demands that every erring government
employee be made answerable for any malfeasance or misfeasance committed .—To be sure,
arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion on the part
of petitioner Garcia cannot be simplistically inferred from the sheer number of those charged
as well as the gravity or the dire consequences of the charge of grave misconduct and conduct
prejudicial to the best interest of the service, as the appellate court made it to appear. The
principle of accountability demands that every erring government employee be made
answerable for any malfeasance or misfeasance committed. And lest it be overlooked, the
mere filing of formal administrative case, regardless of the gravity of the offense charged,
does not overcome the presumptive innocence of the persons complained of nor does it shift
the burden of evidence to prove guilt of an administrative offense from the complainant.
Same; Same; Judgments; The assailed decision and resolution, if allowed to remain
undisturbed, would likely pave the way to legitimization of mass actions undertaken by civil
servants, regardless of their deleterious effects on the interest of the public they have sworn
to serve with loyalty and efficiency .—We close with the observation that the assailed decision
and resolution, if allowed to remain undisturbed, would likely pave the way to the
legitimization of mass actions undertaken by civil servants, regardless of their deleterious
effects on the interest of the public they have sworn to serve with loyalty and efficiency.
Worse still, it would permit the emergence of a system where public sector workers are, as the
petitioners aptly put it, “immune from the minimum reckoning for acts that [under settled
jurisprudence] are concededly unlawful.” This aberration would be intolerable.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Andrew F. Ammuyutan for petitioners.
     Barbers, Molina and Molina for respondent.
GARCIA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government
Service Insurance System (GSIS) and its President and General Manager Winston F. Garcia
(Garcia, for short) assail and seek to nullify the Decision1 dated June 16, 2005 of the Court of
Appeals (CA) in CAG.R. SP No. 87220 , as reiterated in its Resolution2 of October 18, 2005
denying Garcia’s motion for reconsideration.
The recourse is cast against the following setting:
A four-day October 2004 concerted demonstration, rallies and en masse walkout
waged/held in front of the GSIS main office in Roxas Boulevard, Pasay City, started it all.
Forming a huge part of the October 4 to October 7, 2004 mass action participants were GSIS
personnel, among them members of the herein respondent Kapisanan Ng Mga Manggagawa
sa GSIS (“KMG” or the “Union”), a public sector union of GSIS rank-and-file employees.
Contingents from other government agencies joined causes with the GSIS group. The mass
action’s target appeared to have been herein petitioner Garcia and his management style.
While the Mayor of Pasay City allegedly issued a rally permit, the absence of the participating
GSIS employees was not covered by a prior approved leave.3
On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a
memorandum directing 131 union and non-union members to show cause why they should
not be charged administratively for their participation in said rally. In reaction, KMG’s counsel,
Atty. Manuel Molina, sought reconsideration of said directive on the ground, among others,
that the subject employees resumed work on October 8, 2004 in obedience to the return-to-
work order thus issued. The plea for reconsideration was, however, effectively denied by the
filing, on October 25, 2004, of administrative charges against some 110 KMG members for
grave misconduct and conduct prejudicial to the best interest of the service.4
What happened next is summarized by the CA in its challenged decision of June 16, 2005,
albeit the herein petitioners would except from some of the details of the appellate court’s
narration:
“Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the instant
suit on November 2, 2004, with the filing of the Petition for Prohibition at bench. On the
ground that its members should not be made to explain why they supported their union’s
cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard of Civil Service
Resolution No. 021316, otherwise known as the Guidelines for Prohibited Mass Action, Section
10 of which exhorts government agencies to “harness all means within their capacity to accord
due regard and attention to employees’ grievances and facilitate their speedy and amicable
disposition through the use of grievance machinery or any other modes of settlement
sanctioned by law and existing civil service rules.” Two supplements to the foregoing petition
were eventually filed by KMG.
The first, . . . apprised [the CA] of the supposed fact that its Speaker, Atty. Molina, had
been placed under preventive suspension for 90 days and that the formal charges thus filed
will not only deprive its members of the privileges and benefits due them but will also
disqualify them from promotion, step increment adjustments and receipt of monetary benefits,
including their 13th month pay and Christmas bonuses. The second, x x x manifested that, on
December 17, 2004, respondent [Garcia] served a spate of additional formal charges against
230 of KMG’s members for their participation in the aforesaid grievance demonstrations.
In his December 14, 2004 comment to the foregoing petition, respondent [Garcia] averred
that the case at bench was filed by an unauthorized representative in view of the fact that
Albert Velasco had already been dropped from the GSIS rolls and, by said token, had ceased
to be a member—much less the President—of KMG. Invoking the rule against forum shopping,
respondent [Garcia] called [the CA’s] attention to the supposed fact that the allegations in the
subject petition merely duplicated those already set forth in two petitions for certiorari and
prohibition earlier filed by Albert Velasco . . . . Because said petitions are, in point of fact,
pending before this court as CA-G.R. SP Nos. 86130 and 86365, respondent [Garcia] prayed
for the dismissal of the petition at bench . . . .”5 (Words in bracket added.)
It appears that pending resolution by the CA of the KMG petition for prohibition in this case,
the GSIS management proceeded with the investigation of the administrative cases filed. As
represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of
the two hundred seventy eight (278) cases filed had been resolved, resulting in the
exoneration of twenty (20) respondent-employees, the reprimand of one hundred eighty two
(182) and the suspension for one month of five (5).6
On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia’s
“filing of administrative charges against 361 of [KMG’s] members is tantamount to grave
abuse of discretion which may be the proper subject of the writ of prohibition. ” Dispositively,
the decision reads:
“WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent
[Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued
formal charges and from issuing other formal charges arising from the same facts and events.
SO ORDERED.” (Emphasis in the original)
Unable to accept the above ruling and the purported speculative factual and erroneous legal
premises holding it together, petitioner Garcia sought reconsideration. In its equally assailed
Resolution8 of October 18, 2005, however, the appellate court denied reconsideration of its
decision.
Hence, this recourse by the petitioners ascribing serious errors on the appellate court in
granting the petition for prohibition absent an instance of grave abuse of authority on their
part.
We resolve to GRANT the petition.
It should be stressed right off that the civil service encompasses all branches and agencies
of the Government, including government-owned or controlled corporations (GOCCs) with
original charters, like the GSIS,9 or those created by special law.10 As such, employees of
covered GOCCs are part of the civil service system and are subject to circulars, rules and
regulations issued by the Civil Service Commission (CSC) on discipline, attendance and general
terms/conditions of employment, inclusive of matters involving self-organization, strikes,
demonstrations and like concerted actions. In fact, policies established on public sector
unionism and rules issued on mass action have been noted and cited by the Court in at least a
case.11 Among these issuances is Executive Order (EO) No. 180, series of 1987, providing
guidelines for the exercise of the right to organize of government employees. Relevant also is
CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the
public sector.
There is hardly any dispute about the formal charges against the 278 affected GSIS
employees—a mix of KMG union and non-union members—having arose from their having
gone on unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7,
2004 stretch to join the ranks of the demonstrators/rallyists at that time. As stated in each of
the formal charges, the employee’s act of attending, joining, participating and taking part in
the strike/rally is a transgression of the rules on strike in the public sector. The question that
immediately comes to the fore, therefore, is whether or not the mass action staged by or
participated in by said GSIS employees partook of a strike or prohibited concerted mass
action. If in the affirmative, then the denounced filing of the administrative charges would
be prima facie tenable, inasmuch as engaging in mass actions resulting in work stoppage or
service disruption constitutes, in the minimum, the punishable offense of acting prejudicial to
the best interest of the service.12 If in the negative, then such filing would indeed smack of
arbitrariness and justify the issuance of a corrective or preventive writ.
Petitioners assert that the filing of the formal charges are but a natural consequence of the
service-disrupting rallies and demonstrations staged during office hours by the absenting GSIS
employees, there being appropriate issuances outlawing such kinds of mass action. On the
other hand, the CA, agreeing with the respondent’s argument, assumed the view and held
that the organized demonstrating employees did nothing more than air their grievances in the
exercise of their “broader rights of free expression”13 and are, therefore, not amenable to
administrative sanctions. For perspective, following is what the CA said:
“Although the filing of administrative charges against [respondent KMG’s] members is well
within [petitioner Garcia’s] official [disciplinary] prerogatives, [his] exercise of the power
vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and
vindictiveness against which prohibition was sought by [respondent]. xxx the fact that the
subject mass demonstrations were directed against [Garcia’s] supposed mismanagement of
the financial resources of the GSIS, by and of itself, renders the filing of administrative
charges against [KMG’s] member suspect. More significantly, we find the gravity of the
offenses and the sheer number of persons . . . charged administratively to be, at the very
least, antithetical to the best interest of the service. . . .
It matters little that, instead of the 361 alleged by petitioner, only 278 charges were
actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to
exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month suspension.
Irrespective of their outcome, the severe penalties prescribed for the offense with which
petitioner’s members were charged, to our mind, bespeak of bellicose and castigatory reaction
. . . . The fact that most of the employees [Garcia] administratively charged were eventually
meted with what appears to be a virtual slap on the wrist even makes us wonder why
respondent even bothered to file said charges at all. x x x.
Alongside the consequences of the right of government employees to form, join or assist
employees organization, we have already mentioned how the broader rights of free
expression cast its long shadow over the case. x x x we find [petitioner Garcia’s] assailed acts,
on the whole, anathema to said right which has been aptly characterized as preferred, one
which stands on a higher level than substantive economic and other liberties, the matrix of
other important rights of our people. x x x.”14 (Italics and words in bracket added; citations
omitted.)
While its decision and resolution do not explicitly say so, the CA equated the right to form
associations with the right to engage in strike and similar activities available to workers in the
private sector. In the concrete, the appellate court concluded that inasmuch as GSIS
employees are not barred from forming, joining or assisting employees’ organization,
petitioner Garcia could not validly initiate charges against GSIS employees waging or joining
rallies and demonstrations notwithstanding the service-disruptive effect of such mass action.
Citing what Justice Isagani Cruz said in Manila Public School Teachers Association [MPSTA] v.
Laguio, Jr.,15 the appellate court declared:
“It is already evident from the aforesaid provisions of Resolution No. 021316 that employees
of the GSIS are not among those specifically barred from forming, joining or assisting
employees organization such as [KMG]. If only for this ineluctable fact, the merit of the
petition at bench is readily discernible.”16
We are unable to lend concurrence to the above CA posture. For, let alone the fact that it
ignores what the Court has uniformly held all along, the appellate court’s position is contrary
to what Section 4 in relation to Section 5 of CSC Resolution No. 02131617 provides. Besides,
the appellate court’s invocation of Justice Cruz’s opinion in MPSTA is clearly off-tangent, the
good Justice’s opinion thereat being a dissent. It may be, as the appellate court urged¸ that
the freedom of expression and assembly and the right to petition the government for a
redress of grievances stand on a level higher than economic and other liberties. Any
suggestion, however, about these rights as including the right on the part of government
personnel to strike ought to be, as it has been, trashed. We have made this abundantly clear
in our past determinations. For instance, in Alliance of Government Workers v. Minister of
Labor and Employment,18 a case decided under the aegis of the 1973 Constitution, an en
banc Court declared that it would be unfair to allow employees of government corporations to
resort to concerted activity with the ever present threat of a strike to wring benefits from
Government. Then came the 1987 Constitution expressly guaranteeing, for the first time, the
right of government personnel to selforganization19 to complement the provision according
workers the right to engage in “peaceful concerted activities, including the right to strike in
accordance with law.”20
It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the
Court resolved Bangalisan v. Court of Appeals.21 In it, we held, citing MPSTA v.
Laguio, Jr.,22 that employees in the public service may not engage in strikes or in concerted
and unauthorized stoppage of work; that the right of government employees to organize is
limited to the formation of unions or associations, without including the right to strike.
Jacinto v. Court of Appeals23 came next and there we explained:
“Specifically, the right of civil servants to organize themselves was positively recognized
in Association of Court of Appeals Employees vs. Ferrer-Calleja . But, as in the exercise of the
rights of free expression and of assembly, there are standards for allowable
limitations such as the legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .
As regards the right to strike, the Constitution itself qualifies its exercise with the provision
“in accordance with law.” This is a clear manifestation that the state may, by law, regulate the
use of this right, or even deny certain sectors such right. Executive Order 180 which provides
guidelines for the exercise of the right of government workers to organize, for instance,
implicitly endorsed an earlier CSC circular which “enjoins under pain of administrative
sanctions, all government officers and employees from staging strikes, demonstrations, mass
leaves, walkouts and other forms of mass action which will result in temporary stoppage or
disruption of public service” by stating that the Civil Service law and rules governing concerted
activities and strikes in government service shall be observed.” (Emphasis and words in
bracket added; citations omitted)
And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of
the right of government employees to organize in the following wise:
“It is relevant to state at this point that the settled rule in this jurisdiction is that employees in
the public service may not engage in strikes, mass leaves, walkouts, and other forms of mass
action that will lead in the temporary stoppage or disruption of public service. The right of
government employees to organize is limited to the formation of unions or associations only,
without including the right to strike,
adding that public employees going on disruptive unauthorized absences to join concerted
mass actions may be held liable for conduct prejudicial to the best interest of the service.
Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the
negative the poser of whether or not the right of government employees to selforganization
also includes the right to strike, stated:
“When we proposed this amendment providing for self organization of government employees,
it does not mean that because they have the right to organize, they have also the right to
strike. That is a different matter. x x x”25
With the view we take of the events that transpired on October 4-7, 2004, what respondent’s
members launched or participated in during that time partook of a strike or, what contextually
amounts to the same thing, a prohibited concerted activity. The phrase “ prohibited concerted
activity” refers to any collective activity undertaken by government employees, by themselves
or through their employees’ organization, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or otherwise; it
includes mass leaves, walkouts, pickets and acts of similar nature.26 Indeed, for four
straight days, participating KMG members and other GSIS employees staged a walk out and
waged or participated in a mass protest or demonstration right at the very doorstep of the
GSIS main office building. The record of attendance27 for the period material shows that, on
the first day of the protest, 851 employees, or forty-eight percent (48%) of the total number
of employees in the main office (1,756) took to the streets during office hours, from 6 a.m. to
2 p.m.,28 leaving the other employees to fend for themselves in an office where a host of
transactions take place every business day. On the second day, 707 employees left their
respective work stations, while 538 participated in the mass action on the third day. A smaller
number, i.e., 306 employees, but by no means an insignificant few, joined the fourth day
activity.
To say that there was no work disruption or that the delivery of services remained at the
usual level of efficiency at the GSIS main office during those four (4) days of massive walkouts
and wholesale absences would be to understate things. And to place the erring employees
beyond the reach of administrative accountability would be to trivialize the civil service rules,
not to mention the compelling spirit of professionalism exacted of civil servants by the Code of
Conduct and Ethical Standards for Public Officials and Employees.29
The appellate court made specific reference to the “parliament of the streets,” obviously to
lend concurrence to respondent’s pretension that the gathering of GSIS employees on October
4-7, 2004 was an “assembly of citizens” out only to air grievances, not a striking crowd.
According to the respondent, a strike presupposes a mass action undertaken to press for some
economic demands or secure additional material employment benefits.
 We are not convinced. In whatever name respondent desires to call the four-day mass
action in October 2004, the stubborn fact remains that the erring employees, instead of
exploring non-crippling activities during their free time, had taken a disruptive approach to
attain whatever it was they were specifically after. As events evolved, they assembled in front
of the GSIS main office building during office hours and staged rallies and protests, and even
tried to convince others to join their cause, thus provoking work stoppage and service-delivery
disruption, the very evil sought to be forestalled by the prohibition against strikes by
government personnel.30
The Court can concede hypothetically that the protest rally and gathering in question did
not involve some specific material demand. But then the absence of such economic-related
demand, even if true, did not, under the premises, make such mass action less of a prohibited
concerted activity. For, as articulated earlier, any collective activity undertaken by government
employees with the intent of effecting work stoppage or service disruption in order to realize
their demands or force concessions, economic or otherwise, is a prohibited concerted mass
action31 and doubtless actionable administratively. Bangalisan even went further to say the
following: “[i]n the absence of statute, public employees do not have the right to engage in
concerted work stoppages for any purpose.”
To petitioner Garcia, as President and General Manager of GSIS, rests the authority and
responsibility, under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove,
suspend or otherwise discipline GSIS personnel for cause.32 At bottom then, petitioner Garcia,
by filing or causing the filing of administrative charges against the absenting participants of
the October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by
law. Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act
can easily be sustained as legally correct and doubtless within his jurisdiction.
It bears to reiterate at this point that the GSIS employees concerned were proceeded
against—and eventually either exonerated, reprimanded or meted a one-month suspension, as
the case may be—not for the exercise of their right to assemble peacefully and to petition for
redress of grievance, but for engaging in what appeared to be a prohibited concerted activity.
Respondent no less admitted that its members and other GSIS employees might have
disrupted public service.33
To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of
discretion on the part of petitioner Garcia cannot be simplistically inferred from the sheer
number of those charged as well as the gravity or the dire consequences of the charge of
grave misconduct and conduct prejudicial to the best interest of the service, as the appellate
court made it to appear. The principle of accountability demands that every erring government
employee be made answerable for any malfeasance or misfeasance committed. And lest it be
overlooked, the mere filing of formal administrative case, regardless of the gravity of the
offense charged, does not overcome the presumptive innocence of the persons complained of
nor does it shift the burden of evidence to prove guilt of an administrative offense from the
complainant.
Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case
involving over 800 public school teachers who took part in mass actions for which the then
Secretary of Education filed administrative complaints on assorted charges, such as gross
misconduct. Of those charged, 650 were dismissed and 195 suspended for at least six (6)
months The Court, however, did not consider the element of number of respondents thereat
and/or the dire consequences of the charge/s as fatally vitiating or beclouding the bona
fides of the Secretary of Education’s challenged action. Then as now, the Court finds the filing
of charges against a large number of persons and/or the likelihood that they will be suspended
or, worse, dismissed from the service for the offense as indicating a strong and clear case of
grave abuse of authority to justify the issuance of a writ of prohibition.
The appellate court faulted petitioner Garcia for not first taping existing grievance
machinery and other modes of settlement agreed upon in the GSIS-KMG Collective
Negotiations Agreement (CNA) before going full steam ahead with his formal charges.34
The Court can plausibly accord cogency to the CA’s angle on grievance procedure but for
the fact that it conveniently disregarded what appears to be the more relevant provision of the
CNA. We refer to Article VI which reads:
“The GSIS Management and the KMG have mutually agreed to promote the principle of shared
responsibility . . . on all matters and decisions affecting the rights, benefits and interests of all
GSIS employees . . . . Accordingly, . . . the parties also mutually agree that the KMG shall not
declare a strike nor stage any concerted action which will disrupt public service and the GSIS
management shall not lockout employees who are members of the KMG during the term of
this agreement. GSIS Management shall also respect the rights of the employees to air their
sentiments through peaceful concerted activities during allowable hours, subject to reasonable
office rules . . . .”35 (Italics added)
If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less
confrontational remedies, it should be at the respondent union for spearheading a concerted
mass action without resorting to available settlement mechanism. As it were, it was KMG,
under Atty. Alberto Velasco, which opened fire first. That none of the parties bothered to avail
of the grievance procedures under the GSIS-KMG CNA should not be taken against the GSIS.
At best, both GSIS management and the Union should be considered as in pari delicto.
With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the
legal standing of Alberto Velasco to represent the herein respondent union and to initiate the
underlying petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-
10-01 approved on October 5, 2004 by the KMG Joint Executive-Legislative Assembly, had
ceased to be member, let alone president, of the KMG, having previously been dropped from
the rolls of GSIS employees.36 While the dropping from the rolls is alleged to have been the
subject of a CA-issued temporary restraining order (TRO), the injunction came after Atty.
Velasco had in fact been separated from the service and it appears that the TRO had already
expired.
As a final consideration, the Court notes or reiterates the following relevant incidents
surrounding the disposition of the case below:
“1.The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even
going to the extent of describing as “instructive and timely” a portion, when the majority
opinion thereat, which the appellate court ignored, is the controlling jurisprudence.
 2.The CA gave prominence to dispositions and rattled off holdings37 of the Court, which
appropriately apply only to strikes in the private industry labor sector, and utilized the
same as springboard to justify an inference of grave abuse of discretion. On the other
hand, it only gave perfunctory treatment if not totally ignored jurisprudence that squarely
dealt with strikes in the public sector, as if the right to strike given to unions in private
corporations/entities is necessarily applicable to civil service employees.
Notes.—The right of government employees to organize is limited to the formation of
unions or associations only, without including the right to strike. (Gesite vs. Court of
Appeals, 444 SCRA 51 [2004])
To grant employees of the public sector the right to strike, there must be a clear and direct
legislative authority therefore. (Bangalisan vs. Court of Appeals, 276 SCRA 619 [1997])

3.As couched, the assailed CA decision perpetually bars respondent Garcia—and ——o0o——
necessarily whoever succeeds him as GSIS President—not only from implementing the
formal charges against GSIS employees who participated in the October 4-7, 2004 mass
action but also from issuing other formal charges arising from the same events. The
injunction was predicated on a finding that grave abuse of discretion attended the
exercise of petitioner Garcia’s disciplinary power vested him under Section 45 of RA
8291.38 At bottom then, the assailed decision struck down as a nullity, owing to the
alleged attendant arbitrariness, not only acts that have already been done, but those yet
to be done. In net effect, any formal charge arising from the October 4-7, 2004 incident
is, under any and all circumstances, prejudged as necessarily tainted with arbitrariness to
be slain at sight.

The absurdities and ironies easily deducible from the foregoing situations are not lost on the
Court.

We close with the observation that the assailed decision and resolution, if allowed to
remain undisturbed, would likely pave the way to the legitimization of mass actions
undertaken by civil servants, regardless of their deleterious effects on the interest of the public
they have sworn to serve with loyalty and efficiency. Worse still, it would permit the
emergence of a system where public sector workers are, as the petitioners aptly put it,
“immune from the minimum reckoning for acts that [under settled jurisprudence] are
concededly unlawful.” This aberration would be intolerable.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are REVERSED
and SET ASIDE and the writ of prohibition issued by that court is NULLIFIED.

No Cost.

SO ORDERED.

     Puno (Chairperson), Sandoval-Gutierrez and Azcuna, JJ., concur.

     Corona, J., On Leave.

Assailed decision and resolution reversed and set aside.

 No. L-20620. August 15, 1974.* land. The value is only “provisional” or “tentative”, to serve as the basis for the immediate
occupancy of the property being expropriated by the condemnor.
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, vs CARMEN M. VDA. DE
Same; Same; Valuation fixed for assessment purposes cannot be made the basis for
CASTELLVI, ET AL., defendants-appellees.
fixing the fair market value of the property expropriated where the landowner did not
intervene in fixing it.—The valuation fixed for the purposes of the assessment of the land for
Eminent domain; “Taking” of property; Elements of.—A number of circumstances must
taxation purposes cannot bind the landowner where the latter did not intervene in f ixing it.
be present in the “taking” of property for purposes of eminent domain: (1) the expropriator
must enter a private property; (2) the entrance into private property must be for more than a
Same; Same; Report of the commissioners; Nature of.—The report of the
momentary period; (3) the entry into the property should be under warrant or color of legal
commissioners of appraisal in comdemnation proceedings are not binding, but merely advisory
authority; (4) the property must be devoted to a public use or otherwise informally
in character, as far as the court is concerned.
appropriated or injuriously affected; and (5) the utilization of the property for public use must
be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the
Same; Same; Same; Right of court to change.—A court of first instance or, on appeal,
property.
the Supreme Court, may change or modify the report of the commissioners by increasing or
reducing the amount of the award if the facts of the case so justify. While great weight is
Same; Same; Entrance into private property must be for more than a momentary
attached to the report of the commissioners, yet a court may substitute therefor its estimate
period; Momentary defined.—"Momentary” means “lasting but a moment; of but a moment’s
of the value of the property as gathered from the record in certain cases, as, where the
duration (The Oxford English Dictionary, Volume VI, page 596); “lasting a very short time;
commissioners have applied illegal principles to the evidence submitted to them, or where
transitory; having a very brief life; operative or recurring at every moment” (Webster’s Third
they have disregarded a clear preponderance of evidence, or where the amount allowed is
International Dictionary, 1963 edition). The word “momentary” when applied to possession or
either palpably inadequate or excessive.
occupancy of (real) property should be construed to -mean “a limited period”—not indefinite
or permanent.
Contracts; Construction of; Intention cannot prevail over the clear and express terms of
the contract.—Intention cannot prevail over the clear and express terms of the lease contract.
Same; Same; Mere notice of intention to expropriate cannot bind landowner;
Intent is to be deduced from the language employed by the parties, and the terms of the
Expropriate must be commenced in court.—It might really have been the intention of the
contract, when unambiguous, are conclusive in the absence of averment and proof of mistake
Republic to expropriate the lands at some future time, but certainly mere notice—much less
or fraud—the question being not what the intention was, but what is expressed in the
an implied notice—of such intention on the part of the Republic to expropriate the lands in the
language used. Moreover, in order to judge the intention of the contracting parties, their
future did not, and could not, bind the landowner, nor bind the land itself. The expropriation
contemporaneous and subsequent acts shall be principally considered.
must be actually commenced in court.
Same; Same; General terms of contract cannot include things different from those
Same; Just compensation; Value of property expropriated determined as of the date of
intended by the parties.—However general the terms of a contract may be, they shall not be
the filing of the complaint.—Under section 4 of Rule 67 of the Rules of Court, the “just
understood to comprehend things that are distinct and cases that are different from those
compensation” is to be determined as of the date of the filing of the complaint. When the
upon which the parties intended to agree.
taking of the property sought to be expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent
Interests; Payment of interest on amount adjudged as the value of the property
domain, the just compensation should be determined as of the date of the filing of the
expropriated not allowed for the period during which the owner of the property received
complaint.
rentals from the condemnor; Case at bar.—If Castellvi had agreed to receive the rentals from
June 30, 1956 to August 10, 1959, she should be considered as having allowed her land to be
Same; Same; Circumstances considered in determining the value of the property
leased to the Republic until August 10, 1959, and she could not at the same time be entitled
expropriated.—In expropriation proceedings, the owner of the land has the right to its value
to the payment of interest during the same period on the amount awarded her as the just
for the use for which it would bring the most in the market. The owner may thus show every
compensation of her land. The Republic should pay Castellvi interest at the rate of 6% per
advantage that his property possesses, present and prospective, in order that the price it
annum on the value of her land, minus the provisional value that was deposited, only from
could be sold for in the market may be satisfactorily determined. The owner may also show
July 10, 1959 when it deposited in court the provisional value of the land.
that the property is suitable for division into village or town lots.
New trial; Grant of new trial discretionary with the court.— The granting or denial of a
Same; Same; Provisional value cannot be made the basis for fixing the fair market value
motion for new trial is, as a general rule, discretionary with the trial court, whose judgment
of the property expropriated; Reason.—The amount fixed as the provisional value of the lands
should not be disturbed unless there is a clear showing of abuse of discretion.
that are being expropriated does not necessarily represent the true and correct value of the
 Same; Grant of new trial based on newly discovered evidence; Requisites.— To warrant
the granting of a new trial based on the ground of newly discovered evidence, it must appear
that the evidence was discovered after the trial; that even with the exercise of due diligence,
the evidence could not have been discovered and produced at the trial; and that the evidence
is of such a nature as to alter the result of the case if admitted.
APPEAL from a decision of the Court of First Instance of Pampanga.
The facts are stated in the opinion of the Court.
     Office of the Solicitor General for plaintiff-appellant.
     C.A. Mendoza & A.V. Raquiza and Alberto Cacnio & Associates for defendant-appellees.
ZALDIVAR, J.:
Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623,
an expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as the Republic)
filed, on June 26, 1959, a complaint for eminent domain against defendant-appellee, Carmen
M. vda. de Castellvi, judicial administratrix of the estate of the late Alfonso de Castellvi
(hereinafter referred to as Castellvi), over a parcel of land situated in the barrio of San Jose,
Floridablanca, Pampanga, described as follows:
“A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo-23666. Bounded on the NE by
Maria Nieves Toledo-Gozun; on the SE by national road; on the SW by AFP reservation, and
on the NW by AFP reservation. Containing an area of 759,299 square meters, more or less,
and registered in the name of Alfonso Castellvi under TCT No. 13631 of the Register of Deeds
of Pampanga x x x”;
and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter referred to as Toledo-
Gozun), over two parcels of land described as follows:
“A parcel of land (Portion of Lot 1-B, Blk-1, Bureau of Lands Plan Psd, 26254. Bounded on the
NE by Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, Blk. 2 (equivalent to Lot 199-B Swo
23666; on the NW by AFP military reservation. Containing an area of 450,273 square meters,
more or less, and registered in the name of Maria Nieves Toledo-Gozun under TCT No. 8708
of the Register of Deeds of Pampanga. x x x”, and
“A parcel of land (Portion of Lot 3, Blk-1, Bureau of Lands Plan Psd 26254. Bounded on the
NE by Lot No. 3, on the SE by school lot and national road, on the SW by Lot 1-B Blk 2
(equivalent to Lot 199-B Swo 23666), on the NW by Lot 1-B, Blk-1. Containing an area of
88,772 square meters, more or less, and registered in the name of Maria Nieves Toledo Gozun
under TCT No. 8708 of the Register of Deeds of Pampanga, x x x”.
In its complaint, the Republic alleged, among other things, that the fair market value of the
above-mentioned lands, according to the Committee on Appraisal for the Province of
Pampanga, was not more than P2,000 per hectare, or a total market value of P259,669.10;
and prayed, that the provisional value of the lands be fixed at P259,669.10, that the court
authorizes plaintiff to take immediate possession of the lands upon deposit of that amount
with the Provincial Treasurer of Pampanga; that the court appoints three commissioners to
ascertain and report to the court the just compensation for the property sought to be
expropriated, and that the court issues thereafter a f inal order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional value of the lands at
P259,669.10.
In her “motion to dismiss” filed on July 14, 1959, Castellvi alleged, among other things,
that the land under her administration, being a residential land, had a fair market value of
P15.00 per square meter, so it had a total market value of P11,389,485.00; that the Republic,
through the Armed Forces of the Philippines, particularly the Philippine Air Force, had been,
despite repeated demands, illegally occupying her property since July 1, 1956, thereby
preventing her from using and disposing of it, thus causing her damages by way of unrealized
profits. This defendant prayed that the complaint be dismissed, or that the Republic be
ordered to pay her P15.00 per square meter, or a total of P11,389,485.00, plus interest
thereon at 6% per annum from July 1, 1956; that the Republic be ordered to pay her
P5,000,000.00 as unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G. viuda de Gil,
Paloma Castellvi, Carmen Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi de
Raquiza, Jose Castellvi and Consuelo Castellvi were allowed to intervene as parties
defendants. Subsequently, Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo Gozun,
was also allowed by the court to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of Pampanga the amount of
P259,669.10, the trial court ordered that the Republic be placed in possession of the lands.
The Republic was actually placed in possession of the lands on August 10, 1959.1
In her “motion to dismiss”, dated October 22, 1959, Toledo-Gozun alleged, among other
things, that her two parcels of land were residential lands, in fact a portion with an area of
343,303 square meters had already been subdivided into different lots for sale to the general
public, and the remaining portion had already been set aside for expansion sites of the already
completed subdivisions; that the fair market value of said lands was P15.00 per square meter,
so they had a total market value of P8,085,675.00; and she prayed that the complaint be
dismissed, or that she be paid the amount of P8,085,675.00, plus interest thereon at the rate
of 6% per annum from October 13, 1959, and attorney’s fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on February
11,1960, and also intervenor Joaquin Gozun, Jr., husband of defendant Maria Nieves Toledo-
Gozun, in his motion to dismiss, dated May 27, 1960, all alleged that the value of the lands
sought to be expropriated was at the rate of P15.00 per square meter.
 On November 4, 1959, the trial court authorized the Provincial Treasurer of Pampanga to
pay defendant Toledo-Gozun the sum of P107,609.00 as provisional value of her lands.2 On
May 16, 1960 the trial Court authorized the Provincial Treasurer of Pampanga to pay
defendant Castellvi the amount of P151,859.80 as provisional value of the land under her
administration, and ordered said defendant to deposit the amount with the Philippine National
Bank under the supervision of the Deputy Clerk of Court. In another order of May 16, 1960
the trial Court entered an order of condemnation.3
The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk of Court, as
commissioner for the court; Atty. Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal
counsel at Clark Air Base, for the defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
On March 15, 1961 the Commissioners submitted their report and recommendation,
wherein, after having determined that the lands sought to be expropriated were residential
lands, they recommended unanimously that the lowest price that should be paid was P10.00
per square meter, for both the lands of Castellvi and Toledo-Gozun; that an additional
P5,000.00 be paid to Toledo-Gozun for improvements found on her land; that legal interest on
the compensation, computed from August 10, 1959, be paid after deducting the amounts
already paid to the owners, and that no consequential damages be awarded.4 The
Commissioners’ report was objected to by all the parties in the case—by defendants Castellvi
and Toledo-Gozun, who insisted that the fair market value of their lands should be fixed at
P15.00 per square meter; and by the Republic, which insisted that the price to be paid for the
lands should be fixed at P0.20 per square meter.5
After the parties-defendants and intervenors had filed their respective memoranda, and
the Republic, after several extensions of time, had adopted as its memorandum its objections
to the report of the Commissioners, the trial court, on May 26, 1961, rendered its
decision6 the dispositive portion of which reads as follows:
“WHEREFORE, taking into account all the foregoing circumstances, and that the lands are
titled, . . . the rising trend of land values . . ., and the lowered purchasing power of the
Philippine peso, the court finds that the unanimous recommendation of the commissioners of
ten (P10.00) pesos per square meter for the three lots of the defendants subject of this action
is fair and just.”
x      x      x      x
“The plaintiff will pay 6% interest per annum on the total value of the lands of defendant
Toledo-Gozun since (sic) the amount deposited as provisional value from August 10. 1959
until full payment is made to said defendant or deposit therefor is made in court.
“In respect to the defendant Castellvi, interest at 6% per annum will also be paid by the
plaintiff to defendant Castellvi from July 1, 1956 when plaintiff commenced its illegal
possession of the Castellvi land when the instant action had not yet been commenced to July
10, 1959 when the provisional value thereof was actually deposited in court, on the total value
of the said (Castellvi) land as herein adjudged. The same rate of interest shall be paid from
July 11, 1959 on the total value of the land herein adjudged minus the amount deposited as
provisional value, or P151,859.80, such interest to run until full payment is made to said
defendant or deposit therefor is made in court. All the intervenors having failed to produce
evidence in support of their respective interventions, said interventions are ordered dismissed.
“The costs shall be charged to the plaintiff.”
On June 21,1961 the Republic filed a motion for a new trial and/or reconsideration, upon the
grounds of newly-discovered evidence, that the decision was not supported by the evidence,
and that the decision was against the law, against which motion defendants Castellvi and
Toledo-Gozun filed their respective oppositions. On July 8, 1961 when the motion of the
Republic for new trial and/or reconsideration was called for hearing, the Republic filed a
supplemental motion for new trial upon the ground of additional newly-discovered evidence.
This motion for new trial and/or reconsideration was denied by the court on July 12,1961.
On July 17, 1961 the Republic gave notice of its intention to appeal from the decision of
May 26,1961 and the order of July 12, 1961. Defendant Castellvi also filed, on July 17, 1961,
her notice of appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of time within which to file its
record on appeal. The Republic’s record on appeal was finally submitted on December 6,1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to the approval of
the Republic’s record on appeal, but also a joint memorandum in support of their opposition.
The Republic also filed a memorandum in support of its prayer for the approval of its record
on appeal. On December 27, 1961 the trial court issued an order declaring both the record on
appeal filed by the Republic, and the record on appeal filed by defendant Castellvi as having
been filed out of time, thereby dismissing both appeals.
On January 11, 1962 the Republic filed a “motion to strike out the order of December 27,
1961 and for reconsideration”, and subsequently an amended record on appeal, against which
motion the defendants Castellvi and Toledo-Gozun filed their opposition. On July 26, 1962 the
trial court issued an order, stating that “in the interest of expediency, the questions raised
may be properly and finally determined by the Supreme Court,” and at the same time it
ordered the Solicitor General to submit a record on appeal containing copies of orders and
pleadings specified therein. In an order dated November 19, 1962, the trial court approved the
Republic’s record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun did not appeal.
The motion to dismiss the Republic’s appeal was reiterated by appellees Castellvi and
Toledo-Gozun before this Court, but this Court denied the motion.
In her motion of August 11,1964, appellee Castellvi sought to increase the provisional
value of her land. The Republic, in its comment on Castellvi’s motion, opposed the same. This
Court denied Castellvi’s motion in a resolution dated October 2,1964.
 The motion of appellees, Castellvi and Toledo-Gozun, dated October 6, 1969, praying that
they be authorized to mortgage the lands subject of expropriation, was denied by this Court or
October 14,1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for the estate of the
late Don Alfonso de Castellvi in the expropriation proceedings, filed a notice of attorney’s lien,
stating that as per agreement with the administrator of the estate of Don Alfonso de Castellvi
they shall receive by way of attorney’s fees, “the sum equivalent to ten per centum of
whatever the court may finally decide as the expropriated price of the property subject matter
of the case.”
____________
Before this Court, the Republic contends that the lower court erred:
. 1.In finding the price of P10 per square meter of the lands subject of the instant
proceedings as just compensation;
. 2.In holding that the “taking” of the properties under expropriation commenced with
the f iling of this action;
. 3.In ordering plaintiff-appellant to pay 6% interest on the adjudged value of the
Castellvi property to start from July of 1956;
. 4.In denying plaintiff-appellant’s motion for new trial based on newly discovered
evidence.
In its brief, the Republic discusses the second error assigned as the first issue to be
considered. We shall follow the sequence of the Republic’s discussion.
. 1.In support of the assigned error that the lower court erred in holding that the
“taking” of the properties under expropriation commenced with the filing of the
complaint in this case, the Republic argues that the “taking” should be reckoned
from the year 1947 when by virtue of a special lease agreement between the
Republic and appellee Castellvi, the former was granted the “right and privilege” to
buy the property should the lessor wish to terminate the lease, and that in the event
of such sale, it was stipulated that the fair market value should be as of the time of
occupancy; and that the permanent improvements amounting to more than half a
million pesos constructed during a period of twelve years on the land, subject of
expropriation, were indicative of an agreed pattern of permanency and stability of
occupancy by the Philippine Air Force in the interest of national security.7
Appellee Castellvi, on the other hand, maintains that the “taking” of property under the power
of eminent domain requires two essential elements, to wit: (1) entrance and occupation by
condemnor upon the private property for more than a momentary or limited period, and (2)
devoting it to a public use in such a way as to oust the owner and deprive him of all beneficial
enjoyment of the property. This appellee argues that in the instant case the first element is
wanting, for the contract of lease relied upon provides for a lease from year to year; that the
second element is also wanting, because the Republic was paying the lessor Castellvi a
monthly rental of P445.58; and that the contract of lease does not grant the Republic the
“right and privilege” to buy the premises “at the value at the time of occupancy."8
Appellee Toledo-Gozun did not comment on the Republic’s argument in support of the
second error assigned, because as far as she was concerned the Republic had not taken
possession of her lands prior to August 10, 1959.9
In order to better comprehend the issues raised in the appeal, in so far as the Castellvi
property is concerned, it should be noted that the Castellvi property had been occupied by the
Philippine Air Force since 1947 under a contract of lease, typified by the contract marked Exh.
4-Castellvi, the pertinent portions of which read:
“CONTRACT OF LEASE
“This AGREEMENT OF LEASE MADE AND ENTERED into by and between INTESTATE ESTATE
OF ALFONSO DE CASTELLVI, represented by CARMEN M. DE CASTELLVI, Judicial
Administratrix x x x hereinafter called the LESSOR and THE REPUBLIC OF THE PHILIPPINES
represented by MAJ. GEN. CALIXTO DUQUE, Chief of Staff of the ARMED FORCES OF THE
PHILIPPINES, hereinafter called the LESSEE,
“WITNESSETH:
. “1.For and in consideration of the rentals hereinafter reserved and the mutual terms,
covenants and conditions of the parties, the LESSOR has, and by these presents
does, lease and let unto the LESSEE the following described land together with the
improvements thereon and appurtenances thereof, viz:
‘Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de la hacienda de
Campauit, situado en el Barrio de San Jose, Municipio de Floridablanca, Pampanga. x x x
midiendo una extension superficial de cuatro milliones once mil cuatro cientos trienta y cinco
(4,001,435) [sic] metros cuadrados, mas o menos.
‘Out of the above described property, 75.93 hectares thereof are actually occupied and
covered by this contract.
‘Above lot is more particularly described in TCT No. 1016, province of Pampanga. . .
of which premises, the LESSOR warrants that he/she/they/is/are the registered owner(s)
and with full authority to execute a contract of this nature.
. “2.The term of this lease shall be for the period beginning July 1, 1952 the date the
premises were occupied by the PHILIPPINE AIR FORCE, AFP until June 30, 1953,
subject to renewal for another year at the option of the LESSEE or unless sooner
terminated by the LESSEE as hereinafter provided.
. “3.The LESSOR hereby warrants that the LESSEE shall have quiet, peaceful and
undisturbed possession of the demised premises throughout the full term or period
of this lease and the LESSOR undertakes without cost to the LESSEE to eject all
trespassers, but should the LESSOR fail to do so, the LESSEE at its option may
 proceed to do so at the expense of the LESSOR. The LESSOR further agrees that
should he/she/they sell or encumber all or any part of the herein described premises
during the period of this lease, any conveyance will be conditioned on the right of
the LESSEE hereunder.
. “4.The LESSEE shall pay to the LESSOR as monthly rentals under this lease the sum
of FOUR HUNDRED FIFTY-FIVE PESOS & 58/100 (P455.58)x x x
. “5.The LESSEE may, at anytime prior to the termination of this lease, use the
property for any purpose or purposes and, at its own costs and expense make
alteration, install facilities and fixtures and errect additions x x x which facilities or
fixtures x x x so placed in, upon or attached to the said premises shall be and
remain property of the LESSEE and may be removed therefrom by the LESSEE prior
to the termination of this lease. The LESSEE shall surrender possession of the
premises upon the expiration or termination of this lease and if so required by the
LESSOR, shall return the premises in substantially the same condition as that
existing at the time same were first occupied by the AFP, reasonable and ordinary
wear and tear and damages by the elements or by circumstances over which the
LESSEE has no control excepted: PROVIDED, that if the LESSOR so requires the
return of the premises in such condition, the LESSOR shall give written notice
thereof to the LESSEE at least twenty (20) days before the termination of the lease
and provided, further, that should the LESSOR give notice within the time specified
above, the LESSEE shall have the right and privilege to compensate the LESSOR at
the fair value or the equivalent, in lieu of performance of its obligation, if any, to
restore the premises. Fair value is to be determined as the value at the time of
occupancy less fair wear and tear and depreciation during the period of this lease.
. “6.The LESSEE may terminate this lease at any time during the term hereof by giving
written notice to the LESSOR at least thirty (30) days in advance x x x
. “7.The LESSEE should not be responsible, except under special legislation for any
damages to the premises by reason of combat operations, acts of GOD, the
elements or other acts and .deeds not due to the negligence on the part of the
LESSEE.
. “8.This LEASE AGREEMENT supersedes and voids any and all agreements and
undertakings, oral or written, previously entered into between the parties covering
the property herein leased, the same having been merged herein. This AGREEMENT
may not be modified or altered except by instrument in writing only duly signed by
the parties."10
It was stipulated by the parties, that “the foregoing contract of lease (Exh. 4, Castellvi) is
‘similar in terms and conditions, including the date’, with the annual contracts entered into
from year to year between defendant Castellvi and the Republic of the Philippines (p. 17,
t.s.n., Vol. III)".11 It is undisputed, therefore, that the Republic occupied Castellvi’s land from
July 1, 1947, by virtue of the above-mentioned contract, on a year to year basis (from July 1
of each year to June 30 of the succeeding year) under the terms and conditions therein
stated.
Before the expiration of the contract of lease on June 30, 1956 the Republic sought to
renew the same but Castellvi refused. When the AFP refused to vacate the leased premises
after the termination of the contract, on July 11, 1956, Castellvi wrote to the Chief of Staff,
AFP, informing the latter that the heirs of the property had decided not to continue leasing the
property in question because they had decided to subdivide the land for sale to the general
public, demanding that the property be vacated within 30 days from receipt of the letter, and
that the premises be returned in substantially the same condition as before occupancy (Exh. 5
—Castellvi). A follow-up letter was sent on January 12, 1957, demanding the delivery and
return of the property within one month from said date (Exh. 6—Castellvi). On January 30,
1957, Lieutenant General Alfonso Arellano, Chief of Staff, answered the letter of Castellvi,
saying that it was difficult for the army to vacate the premises in view of the permanent
installations and other facilities worth almost P500,000.00 that were erected and already
established on the property, and that, there being no other recourse, the acquisition of the
property by means of expropriation proceedings would be recommended to the President
(Exhibit “7"—Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of Pampanga, in Civil
Case No. 1458, to eject the Philippine Air Force from the land. While this ejectment case was
pending, the Republic instituted these expropriation proceedings, and, as stated earlier in this
opinion, the Republic was placed in possession of the lands on August 10, 1959. On November
21, 1959, the Court of First Instance of Pampanga, dismissed Civil Case No. 1458, upon
petition of the parties, in an order which, in part, reads as follows:
“1.Plaintiff has agreed, as a matter of fact has already signed an agreement with defendants,
whereby she has agreed to receive the rent of the lands, subject matter of the instant case
from June 30, 1966 up to 1959 when the Philippine Air Force was placed in possession by
virtue of an order of the Court upon depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial Treasurer of Pampanga;
“2.That because of the above-cited agreement wherein the administratrix decided to get the
rent corresponding to the rent from 1956 up to 1959 and considering that this action is one of
illegal detainer and/or to recover the possession of said land by virtue of nonpayment of rents,
the instant case now has become moot and academic and/or by virtue of the agreement
signed by plaintiff, she has waived her cause of action in. the above-entitled case."12
The Republic urges that the “taking “of Castellvi’s property should be deemed as of the year
1947 by virtue of afore-quoted lease agreement. In American Jurisprudence, Vol. 26, 2nd
edition, Section 157, on the subject of “Eminent Domain, we read the definition of “taking” (in
eminent domain) as follows:
“Taking’ under the power of eminent domain may be defined generally as entering upon
private property for more than a momentary period, and, under the warrant or color of legal
authority, devoting it to a public use, or otherwise informally appropriating or injuriously
affecting it in such a way as substantially to oust the owner and deprive him of all beneficial
enjoyment thereof ."'13
Pursuant to the aforecited authority, a number of circumstances must be present in the
“taking” of property for purposes of eminent domain.
 First, the expropriator must enter a private property. This circumstance is present in the
instant case, when by virtue of the lease agreement the Republic, through the AFP, took
possession of the property of Castellvi.
Second, the entrance into private property must be for more than a momentary period.
“Momentary” means, “lasting but a moment; of but a moment’s duration” (The Oxford English
Dictionary, Volume VI, page 596); “lasting a very short time; transitory; having a very brief
life; operative or recurring at every moment” (Webster’s Third International Dictionary, 1963
edition.) The word “momentary” when applied to possession or occupancy of (real) property
should be construed to mean “a limited period”—not indefinite or permanent. The aforecited
lease contract was for a period of one year, renewable from year to year. The entry on the
property, under the lease, is temporary, and considered transitory. The fact that the Republic,
through the AFP, constructed some installations of a permanent nature does not alter the fact
that the entry into the land was transitory, or intended to last a year, although renewable
from year to year by consent of the owner of the land. By express provision of the lease
agreement the Republic, as lessee, undertook to return the premises in substantially the same
condition as at the time the property was first occupied by the AFP. It is claimed that the
intention of the lessee was to occupy the land permanently, as may be inferred from the
construction of permanent improvements. But this “intention” cannot prevail over the clear
and express terms of the lease contract. Intent is to be deduced from the language employed
by the parties, and the terms of the contract, when unambiguous, as in the instant case, are
conclusive in the absence of averment and proof of mistake or fraud—the question being not
what the intention was, but what is expressed in the language used. (City of Manila v. Rizal
Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348).
Moreover, in order to judge the intention of the contracting parties, their contemporaneous
and subsequent acts shall be principally considered (Art. 1371, Civil Code). If the intention of
the lessee (Republic) in 1947 was really to occupy permanently Castellvi’s property, why was
the contract of lease entered into on year to year basis? Why was the lease agreement
renewed from year to year? Why did not the Republic expropriate this land of Castellvi in 1949
when, according to the Republic itself, it expropriated the other parcels of land that it occupied
at the same time as the Castellvi land, for the purpose of converting them into a jet air base?
14 It might really have been the intention of the Republic to expropriate the lands in question
at some future time, but certainly mere notice—much less an implied notice—of such intention
on the part of the Republic to expropriate the lands in the future did not, and could not, bind
the landowner, nor bind the land itself. The expropriation must be actually commenced in
court (Republic vs. Baylosis, et al., 96 Phil. 461,484).
Third, the entry into the property should be under warrant or color of legal authority. This
circumstance in the “taking” may be considered as present in the instant case, because the
Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or otherwise informally appropriated
or injuriously affected. It may be conceded that the circumstance of the property being
devoted to public use is present because the property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a way as to oust the
owner and deprive him of all beneficial enjoyment of the property. In the instant case, the
entry of the Republic into the property and its utilization of the same for public use did not
oust Castellvi and deprive her of all beneficial enjoyment of the property. Castellvi remained as
owner, and was continuously recognized as owner by the Republic, as shown by the renewal
of the lease contract from year to year, and by the provision in the lease contract whereby the
Republic undertook to return the property to Castellvi when the lease was terminated. Neither
was Castellvi deprived of all the beneficial enjoyment of the property, because the Republic
was bound to pay, and had been paying, Castellvi the agreed monthly rentals until the time
when it filed the complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the “taking” of Catellvi’s property for purposes of eminent
domain cannot be considered to have taken place in 1947 when the Republic commenced to
occupy the property as lessee thereof. We find merit in the contention of Castellvi that two
essential elements in the “taking” of property under the power of eminent domain, namely:
(1) that the entrance and occupation by the condemnor must be for a permanent, or indefinite
period, and (2) that in devoting the property to public use the owner was ousted from the
property and deprived of its beneficial use, were not present when the Republic entered and
occupied the Castellvi property in 1947.
Untenable also is the Republic’s contention that although the contract between the parties
was one of lease on a year to year basis, it was “in reality a more or less permanent right to
occupy the premises under the guise of lease with the ‘right and privilege’ to buy the property
should the lessor wish to terminate the lease,” and “the right to buy the property is merged as
an integral part of the lease relationship . . . so much so that the fair market value has been
agreed upon, not as of the time of purchase, but as of the time of occupancy"15. We cannot
accept the Republic’s contention that a lease on a year to year basis can give rise to a
permanent right to occupy, since by express legal provision a lease made for a determinate
time, as was the lease of Castellvi’s land in the instant case, ceases upon the day fixed,
without need of a demand (Article 1669, Civil Code). Neither can it be said that the right of
eminent domain may be exercised by simply leasing the premises to be expropriated (Rule 67,
Section 1, Rules of Court). Nor can it be accepted that the Republic would enter into a
contract of lease where its real intention was to buy, or why the Republic should enter into a
simulated contract of lease (“under the guise of lease”, as expressed by counsel for the
Republic) when all the time the Republic had the right of eminent domain, and could
expropriate Castellvi’s land if it wanted to without resorting to any guise whatsoever. Neither
can we see how a right to buy could be merged in a contract of lease in the absence of any
agreement between the parties to that effect. To sustain the contention of the Republic is to
sanction a practice whereby in order to secure a low price for a land which the government
intends to expropriate (or would eventually expropriate) it would first negotiate with the
owner of the land to lease the land (for say ten or twenty years) then expropriate the same
when the lease is about to terminate, then claim that the “taking” of the property for the
purposes of the expropriation be reckoned as of the date when the Government started to
occupy the property under the lease, and then assert that the value of the property being
expropriated be reckoned as of the start of the lease, in spite of the fact that the value of the
property, for many good reasons, had in the meantime increased during the period of the
lease. This would be sanctioning what obviously is a deceptive scheme, which would have the
effect of depriving the owner of the property of its true and fair market value at the time when
the expropriation proceedings were actually instituted in court. The Republic’s claim that it
had the “right and privilege” to buy the property at the value that it had at the time when it
first occupied the property as lessee nowhere appears in the lease contract What was agreed
expressly in paragraph No. 5 of the lease agreement was that, should the lessor require the
lessee to return the premises in the same condition as at the time the same was first occupied
by the AFP, the lessee would have the “right and privilege” (or option) of paying the lessor
what it would fairly cost to put the premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee’s performance of the undertaking to put the
land in said condition. The “fair value” at the time of occupancy, mentioned in the lease
agreement, does not refer to the value of the property if bought by the lessee, but refers to
the cost of restoring the property in the same condition as of the time when the lessee took
possession of the property. Such fair value cannot refer to the purchase price, for purchase
was never intended by the parties to the lease contract. It is a rule in the interpretation of
contracts that “However general the terms of a contract may be, they shall not be understood
to comprehend things that are distinct and cases that are different from those upon which the
parties intended to agree” (Art. 1372, Civil Code).
We hold, therefore, that the “taking” of the Castellvi property should not be reckoned as of
the year 1947 when the Republic first occupied the same pursuant to the contract of lease,
and that the just compensation to be paid for the Castellvi property should not be determined
on the basis of the value of the property as of that year. The lower court did not commit an
error when it held that the “taking” of the property under expropriation commenced with the
filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court,16 the “just compensation” is to be
determined as of the date of the filing of the complaint. This Court has ruled that when the
taking of the property sought to be expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent
domain, the just compensation should be determined as of the date of the filing of the
complaint. (Republic vs. Philippine National Bank, L-14158, April 12, 1961, 1 SCRA 957, 961–
962). In the instant case, it is undisputed that the Republic was placed in possession of the
Castellvi property, by authority of the court, on August 10, 1959. The “taking” of the Castellvi
property for the purposes of determining the just compensation to be paid must, therefore, be
reckoned as of June 26, 1959 when the complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be expropriated, which
had never been under lease to the Republic, the Republic was placed in possession of said
lands, also by authority of the court, on August 10, 1959. The taking of those lands, therefore,
must also be reckoned as of June 26, 1959, the date of the filing of the complaint for eminent
domain.
. 2.Regarding the first assigned error—discussed as the second issue—the Republic
maintains that, even assuming that the value of the expropriated lands is to be
determined as of June 26, 1959, the price of P10.00 per square meter fixed by the
lower court “is not only exhorbitant but also unconscionable, and almost fantastic”.
On the other hand, both Castellvi and Toledo-Gozun maintain that their lands are
residential lands with a fair market value of not less than P15.00 per square meter.
The lower court found, and declared, that the lands of Castellvi and Toledo-Gozun are
residential lands. The finding of the lower court is in consonance with the unanimous opinion
of the three commissioners who, in their report to the court, declared that the lands are
residential lands.
The Republic assails the finding that the lands are residential, contending that the plans of
the appellees to convert the lands into subdivision for residential purposes were only on paper,
there being no overt acts on the part of the appellees which indicated that the subdivision
project had been commenced, so that any compensation to be awarded on the basis of the
plans would be speculative. The Republic’s contention is not well taken. We find evidence
showing that the lands in question had ceased to be devoted to the production of agricultural
crops, that they had become adaptable for residential purposes, and that the appellees had
actually taken steps to convert their lands into residential subdivisions even before the
Republic filed the complaint for eminent domain.
In the case of City of Manila vs. Corrales (32 Phil. 82, 98) this Court laid down basic
guidelines in determining the value of the property expropriated for public purposes. This
Court said:
“In determining the value of land appropriated for public purposes, the same consideration
are to be regarded as in a sale of property between private parties. The inquiry, in such cases,
must be what is the property worth in the market, viewed not merely with reference to the
uses to which it is at the time applied, but with reference to the uses to which it is plainly
adapted, that is to say, What is it worth from its availability for valuable uses?
“So many and varied are the circumstances to be taken into account in determining the
value of property condemned for public purposes, that it is practically impossible to formulate
a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most
carefully guarded rule, but, as a general thing, we should say that the compensation of the
owner is to be estimated by reference to the use for which the property is suitable, having
regard to the existing business or wants of the community, or such as may be reasonably
expected in the immediate future. (Miss. and Rum River Boom Co. vs. Patterson, 98 U.S.,
403)."
In expropriation proceedings, therefore, the owner of the land has the right to its value for the
use for which it would bring the most in the market.17 The owner may thus show every
advantage that his property possesses, present and prospective, in order that the price it
could be sold for in the market may be satisfactorily determined.18 The owner may also show
that the property is suitable for division into village or town lots.19
The trial court, therefore, correctly considered, among other circumstances, the proposed
subdivision plans of the lands sought to be expropriated in finding that those lands are
residential lots. This finding of the lower court is supported not only by the unanimous opinion
of the commissioners, as embodied in their report, but also by the Provincial Appraisal
Committee of the province of Pampanga composed of the Provincial Treasurer, the Provincial
Auditor and the District Engineer. In the minutes of the meeting of the Provincial Appraisal
Committee, held on May 14, 1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the
following:
“3.Since 1957 the land has been classified as residential in view of its proximity to
the air base and due to the fact that it was not being devoted to agriculture. In fact, there is a
plan to convert it into a subdivision for residential purposes. The taxes due on the property
have been paid based on its classification as residential land;”
The evidence shows that Castellvi broached the idea of subdividing her land into residential
lots as early as July 11, 1956 in her letter to the Chief of Staff of the Armed Forces of the
Philippines. (Exh. 5-Castellvi) As a matter of fact, the layout of the subdivision plan was
tentatively approved by the National Planning Commission on September 7, 1956. (Exh. 8-
Castellvi). The land of Castellvi had not been devoted to agriculture since 1947 when it was
leased to the Philippine Army. In 1957 said land was classified as residential, and taxes based
on its classification as residential had been paid since then (Exh. 13-Castellvi). The location of
the Castellvi land justifies its suitability for a residential subdivision. As found by the trial court,
“It is at the left side of the entrance of the Basa Air Base and bounded on two sides by roads
(Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the poblacion, (of Floridablanca)
the municipal building, and the Pampanga Sugar Mills are closed by. The barrio schoolhouse
and chapel are also near (T.S.N. November 23, 1960, p. 68)".20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as the
land of Castellvi. The lands of Toledo-Gozun adjoin the land of Castellvi. They are also
contiguous to the Basa Air Base, and are along the road. These lands are near the barrio
schoolhouse, the barrio chapel, the Pampanga Sugar Mills, and the poblacion of Floridablanca
(Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding lot 1-B it had already been
surveyed and subdivided, and its conversion into a residential subdivision was tentatively
approved by the National Planning Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun).
As early as June, 1958, no less than 32 men connected with the Philippine Air Force among
them commissioned officers, non-commission officers, and enlisted men had requested Mr.
and Mrs. Joaquin D. Gozun to open a subdivision on their lands in question (Exhs. 8, 8-A to 8-
ZZ-Toledo-Gozun).21
We agree with the findings, and the conclusions, of the lower court that the lands that are
the subject of expropriation in the present case, as of August 10, 1959 when the same were
taken possession of by the Republic, were residential lands and were adaptable for use as
residential subdivisions. Indeed, the owners of these lands have the right to their value for the
use for which they would bring the most in the market at the time the same were taken from
them. The most important issue to be resolved in the present case relates to the question of
what is the just compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the appellees is P.20 per
square meter. The Republic cites the case of Republic vs. Narciso, et al., L-6594, which this
Court decided on May 18, 1956. The Narciso case involved lands that belonged to Castellvi
and Toledo-Gozun, and to one Donata Montemayor, which were expropriated by the Republic
in 1949 and which are now the site of the Basa Air Base. In the Narciso case this Court fixed
the fair market value at P.20 per square meter. The lands that are sought to be expropriated
in the present case being contiguous to the lands involved in the Narciso case, it is the stand
of the Republic that the price that should be fixed for the lands now in question should also be
at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the price of P.20 per square
meter, as fixed by this Court in the Narciso case, was based on the allegation of the
defendants (owners) in their answer to the complaint for eminent domain in that case that the
price of their lands was P2,000.00 per hectare and that was the price that they asked the
court to pay them. This Court said, then, that the owners of the land could not be given more
than what they had asked, notwithstanding the recommendation of the majority of the
Commission on Appraisal—which was adopted by the trial court—that the fair market value of
the lands was P3,000.00 per hectare. We also find that the price of P.20 per square meter in
the Narciso case was considered the fair market value of the lands as of the year 1949 when
the expropriation proceedings were instituted, and at that time the lands were classified as
sugar lands, and assessed for taxation purposes at around P400.00 per hectare, or P.04 per
square meter.22 While the lands involved in the present case, like the lands involved in the
Narciso case, might have a fair market value of P.20 per square meter in 1949, it can not be
denied that ten years later, in 1959, when the present proceedings were instituted, the value
of those lands had increased considerably. The evidence shows that since 1949 those lands
were no longer cultivated as sugar lands, and in 1959 those lands were already classified, and
assessed for taxation purposes, as residential lands. In 1959 the land of Castellvi was
assessed at P1.00 per square meter.23
The Republic also points out that the Provincial Appraisal Committee of Pampanga, in its
resolution No. 5 of February 15, 1957 (Exhibit D), recommended the sum of P.20 per square
meter as the fair valuation of the Castellvi property. We find that this resolution was made by
the Republic the basis in asking the court to fix the provisional value of the lands sought to be
expropriated at P259,669.10, which was approved by the court.24 It must be considered,
however, that the amount fixed as the provisional value of the lands that are being
expropriated does not necessarily represent the true and correct value of the land. The value
is only “provisional” or “tentative”, to serve as the basis for the immediate occupancy of the
property being expropriated by the condemnor. The records show that this resolution No. 5
was repealed by the same Provincial Committee on Appraisal in its resolution No. 10 of May
14, 1959 (Exhibit 13-Castellvi). In that resolution No. 10, the appraisal committee stated that
“The Committee has observed that the value of the land in this locality has increased since
1957 . . .", and recommended the price of P1.50 per square meter. It follows, therefore, that,
contrary to the stand of the Republic, that resolution No. 5 of the Provincial Appraisal
Committee can not be made the basis for fixing the fair market value of the lands of Castellvi
and Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant Provincial Assessor of
Pampanga, dated February 8, 1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-
Gozun were classified partly as sugar land and partly as urban land, and that the sugar land
was assessed at P.40 per square meter, while part of the urban land was assessed at P.40 per
square meter and part at P.20 per square meter; and that in 1956 the Castellvi land was
classified as sugar land and was assessed at P450.00 per hectare, or P.045 per square meter.
We can not also consider this certification of the Acting Assistant Provincial Assessor as a basis
for fixing the fair market value of the lands of Castellvi and Toledo-Gozun because, as the
evidence shows, the lands in question, in 1957, were already classified and assessed for
taxation purposes as residential lands. The certification of the assessor refers to the year 1950
as far as the lands of Toledo-Gozun are concerned, and to the year 1956 as far as the land of
Castellvi is concerned. Moreover, this Court has held that the valuation fixed for the purposes
of the assessment of the land for taxation purposes can not bind the landowner where the
latter did not intervene in fixing it.25
On the other hand, the Commissioners, appointed by the court to appraise the lands that
were being expropriated, recommended to the court that the price of P10.00 per square meter
would be the fair market value of the lands. The commissioners made their recommendation
on the basis of their observation after several ocular inspections of the lands, of their own
personal knowledge of land values in the province of Pampanga, of the testimonies of the
owners of the land, and other witnesses, and of documentary evidence presented by the
appellees. Both Castellvi and Toledo-Gozun testified that the fair market value of their
respective land was at P15.00 per square meter. The documentary evidence considered by the
commissioners consisted of deeds of sale of residential lands in the town of San Fernando and
in Angeles City, in the province of Pampanga, which were sold at prices ranging from P8.00 to
P20.00 per square meter (Exhibits 15, 16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The
commissioners also considered the decision in Civil Case No. 1531 of the Court of First
Instance of Pampanga, entitled Republic vs. Sabina Tablante, which was an expropriation case
filed on January 13, 1959, involving a parcel of land adjacent to the Clark Air Base in Angeles
City, where the court fixed the price at P18.00 per square meter (Exhibit 14-Castellvi). In their
report, the commissioners, among other things, said:
“This expropriation case is specially pointed out, because the circumstances and factors
involved therein are similar in many respects to the defendants’ lands in this case. The land
in Civil Case No. 1531 of this Court and the lands in the present case (Civil Case No. 1623) are
both near the air bases, the Clark Air Base and the Basa Air Base respectively. There is a
national road fronting them and are situated in a first-class municipality. As added advantage
it may be said that the Basa Air Base land is very near the sugar mill at Del Carmen,
Floridablanca, Pampanga, owned by the Pampanga Sugar Mills. Also just stone’s throw away
from the same lands is a beautiful vacation spot at Palacol, a sitio of the town of
Floridablanca, which counts with a natural swimming pool for vacationists on weekends. These
advantages are not found in the case of the Clark Air Base. The defendants’ lands are nearer
to the poblacion of Floridablanca then Clark Air Base is nearer (sic) to the poblacion of
Angeles, Pampanga.
“The deeds of absolute sale, according to the undersigned commissioners, as well as the
land in Civil Case No. 1531 are competent evidence, because they were executed during the
year 1959 and before August 10 of the same year. More specifically so the land at Clark Air
Base which coincidentally is the subject matter in the complaint in said Civil Case No. 1531, it
having been filed on January 13, 1959 and the taking of the land involved therein was ordered
by the Court of First Instance of Pampanga on January 15, 1959, several months before the
lands in this case were taken by the plaintiffs
“From the above and considering further that the lowest as well as the highest price per
square meter obtainable in the market of Pampanga relative to subdivision lots within its
jurisdiction in the year 1959 is very well known by the Commissioners, the Commission finds
that the lowest price that can be awarded to the lands in question is P10.00 per square
meter."26
The lower court did not altogether accept the findings of the Commissioners based on the
documentary evidence, but it considered the documentary evidence as basis for comparison in
determining land values. The lower court arrived at the conclusion that “the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square meter for the three
lots of the defendants subject of this action is fair and just".27 In arriving at its conclusion, the
lower court took into consideration, among other circumstances, that the lands are titled, that
there is a rising trend of land values, and the lowered purchasing power of the Philippine
peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328, this Court said:
“A court of first instance or, on appeal, the Supreme Court, may change or modify the report
of the commissioners by increasing or reducing the amount of the award if the facts of the
case so justify. While great weight is attached to the report of the commissioners, yet a court
may substitute therefor its estimate of the value of the property as gathered from the record
in certain cases, as, where the commissioners have applied illegal principles to the evidence
submitted to them, or where they have disregarded a clear preponderance of evidence, or
where the amount allowed is either palpably inadequate or excessive."28
The report of the commissioners of appraisal in condemnation proceedings are not binding,
but merely advisory in character, as far as the court is concerned.29 In our analysis of the
report of the commissioners, We find points that merit serious consideration in the
determination of the just compensation that should be paid to Castellvi and Toledo-Gozun for
their lands. It should be noted that the commissioners had made ocular inspections of the
lands and had considered the nature and similarities of said lands in relation to the lands in
other places in the province of Pampanga, like San Fernando and Angeles City. We cannot
disregard the observations of the commissioners regarding the circumstances that make the
lands in question suited for residential purposes—their location near the Basa Air Base, just
like the lands in Angeles City that are near the Clark Air Base, and the facilities that obtain
because of their nearness to the big sugar central of the Pampanga Sugar mills, and to the
flourishing first class town of Floridablanca. It is true that the lands in question are not in the
territory of San Fernando and Angeles City, but, considering the facilities of modern
communications, the town of Floridablanca may be considered practically adjacent to San
Fernando and Angeles City. It is not out of place, therefore, to compare the land values in
Floridablanca to the land values in San Fernando and Angeles City, and form an idea of the
value of the lands in Floridablanca with reference to the land values in those two other
communities.
The important factor in expropriation proceeding is that the owner is awarded the just
compensation for his property. We have carefully studied the record, and the evidence, in this
case, and after considering the circumstances attending the lands in question We have arrived
at the conclusion that the price of P10.00 per square meter, as recommended by the
commissioners and adopted by the lower court, is quite high. It is Our considered view that
the price of P5.00 per square meter would be a fair valuation of the lands in question and
would constitute a just compensation to the owners thereof. In arriving at this conclusion We
have particularly taken into consideration the resolution of the Provincial Committee on
Appraisal of the province of Pampanga informing, among others, that in the year 1959 the
land of Castellvi could be sold for from P3.00 to P4.00 per square meter, while the land of
Toledo-Gozun could be sold for from P2.50 to P3.00 per square meter. The Court has weighed
all the circumstances relating to this expropriations proceedings, and in fixing the price of the
lands that are being expropriated the Court arrived at a happy medium between the price as
recommended by the commissioners and approved by the court, and the price advocated by
the Republic. This Court has also taken judicial notice of the fact that the value of the
Philippine peso has considerably gone down since the year 1959.30 Considering that the lands
of Castellvi and Toledo-Gozun are adjoining each other, and are of the same nature, the Court
has deemed it proper to fix the same price for all these lands.
 . 3.The third issue raised by the Republic relates to the payment of interest. The
Republic maintains that the lower court erred when it ordered the Republic to pay
Castellvi interest at the rate of 6% per annum on the total amount adjudged as the
value of the land of Castellvi, from July 1, 1956 to July 10, 1959. We find merit in
this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the land of Castellvi from July
1, 1956 to July 10, 1959, the lower court held that the Republic had illegally possessed the
land of Castellvi from July 1, 1956, after its lease of the land had expired on June 30, 1956,
until August 10, 1959 when the Republic was placed in possession of the land pursuant to the
writ of possession issued by the court. What really happened was that the Republic continued
to occupy the land of Castellvi after the expiration of its lease on June 30, 1956, so much so
that Castellvi filed an ejectment case against the Republic in the Court of First Instance of
Pampanga.31 However, while that ejectment case was pending, the Republic filed the
complaint for eminent domain in the present case and was placed in possession of the land on
August 10, 1959, and because of the institution of the expropriation proceedings the
ejectment case was later dismissed. In the order dismissing the ejectment case, the Court of
First Instance of Pampanga said:
“Plaintiff has agreed, as a matter of fact has already signed an agreement with defendants,
whereby she had agreed to receive the rent of the lands, subject matter of the instant case
from June 30, 1956 up to 1959 when the Philippine Air Force was placed in possession by
virtue of an order of the Court upon depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial Treasurer of Pampanga; x x x”
If Castellvi had agreed to receive the rentals from June 30, 1956 to August 10, 1959, she
should be considered as having allowed her land to be leased to the Republic until August 10,
1959, and she could not at the same time be entitled to the payment of interest during the
same period on the amount awarded her as the just compensation of her land. The Republic,
therefore, should pay Castellvi interest at the rate of 6% per annum on the value of her land,
minus the provisional value that was deposited, only from July 10, 1959 when it deposited in
court the provisional value of the land.
4.The fourth error assigned by the Republic relates to the denial by the lower court
of its motion for a new trial based on nearly discovered evidence. We do not find merit in this
assignment of error.
After the lower court had decided this case on May 26, 1961, the Republic filed a motion for a
new trial, supplemented by another motion, both based upon the ground of newly discovered
evidence. The alleged newly discovered evidence in the motion filed on June 21, 1961 was a
deed of absolute sale—executed on January 25, 1961, showing that a certain Serafin Francisco
had sold to Pablo L. Narciso a parcel of sugar land having an area of 100,000 square meters
with a sugar quota of 100 piculs, covered by P.A. No. 1701, situated in Barrio Fortuna,
Floridablanca, for P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence were: (1) a deed of
sale of some 35,000 square meters of land situated at Floridablanca for P7,500.00 (or about
P.21 per square meter) executed in July, 1959, by the spouses Evelyn D. Laird and Cornelio G.
Laird in favor of spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a deed of
absolute sale of a parcel of land having an area of 4,120,101 square meters, including the
sugar quota covered by Plantation Audit No. 16–1345, situated at Floridablanca, Pampanga,
for P860.00 per hectare (a little less than P.09 per square meter) executed on October 22,
1957 by Jesus Toledo y Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions for a new trial.
To warrant the granting of a new trial based on the ground of newly discovered evidence,
it must appear that the evidence was discovered after the trial; that even with the exercise of
due diligence, the evidence could not have been discovered and produced at the trial; and
that the evidence is of such a nature as to alter the result of the case if admitted.32 The lower
court correctly ruled that these requisites were not complied with.
The lower court, in a well-reasoned order, found that the sales made by Serafin Francisco
to Pablo Narciso and that made by Jesus Toledo to the Land Tenure Administration were
immaterial and irrelevant, because those sales covered sugarlands with sugar quotas, while
the lands sought to be expropriated in the instant case are residential lands. The lower court
also concluded that the land sold by the spouses Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings, in order that evidence as to
the sale price of other lands may be admitted in evidence to prove the fair market value of the
land sought to be expropriated, the lands must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in those deeds of sale
were residential, the evidence would still not warrant the grant of a new trial, for said
evidence could have been discovered and produced at the trial, and they cannot be considered
newly discovered evidence as contemplated in Section 1(b) of Rule 37 of the Rules of Court.
Regarding this point, the trial court said:
“The Court will now show that there was no reasonable diligence employed.
“The land described in the deed of sale executed by Serafin Francisco, copy of which is
attached to the original motion, is covered by a Certificate of Title issued by the Office of the
Register of Deeds of Pampanga. There is no question in the mind of the court but this
document passed through the Office of the Register of Deeds for the purpose of transferring
the title or annotating the sale on the certificate of title. It is true that Fiscal Lagman went to
the Office of the Register of Deeds to check conveyances which may be presented in the
evidence in this case as it is now sought to be done by virtue of the motions at bar, Fiscal
Lagman, one of the lawyers of the plaintiff, did not exercise reasonable diligence as required
by the rules. The assertion that he only went to the office of the Register of Deeds ‘now and
then’ to check the records in that office only shows the half-hazard [sic] manner by which the
plaintiff looked for evidence to be presented during the hearing before the Commissioners, if it
is at all true that Fiscal Lagman did what he is supposed to have done according to Solicitor
Padua. It would have been the easiest matter for plaintiff to move for the issuance of a
subpoena duces tecum directing the Register of Deeds of Pampanga to come to testify and to
bring with him all documents found in his office pertaining to sales of land in Floridablanca
adjacent to or near the lands in question executed or recorded from 1958 to the present. Even
this elementary precaution was not done by plaintiffs numerous attorneys.
“The same can be said of the deeds of sale attached to the supplementary motion. They
refer to lands covered by certificate of title issued by the Register of Deeds of Pampanga. For
the same reason they could have been easily discovered if reasonable diligence has been
exerted by the numerous lawyers of the plaintiff in this case. It is noteworthy that all these
deeds of sale could be found in several government offices, namely, in the Office of the
Register of Deeds of Pampanga, the Office of the Provincial Assessor of Pampanga, the Office
of the Clerk of Court as a part of notarial reports of notaries public that acknowledged these
documents, or in the archives of the National Library. In respect to Annex ‘B' of the
supplementary motion copy of the document could also be found in the Office of the Land
Tenure Administration, another government entity. Any lawyer with a modicum of ability
handling this expropriation case would have right away though [sic] of digging up documents
diligently showing conveyances of lands near or around the parcels of land sought to be
expropriated in this case in the offices that would have naturally come to his mind such as the
offices mentioned above, and had counsel for the movant really exercised the reasonable
diligence required by the Rule’ undoubtedly they would have been able to find these
documents and/or caused the issuance of subpoena duces tecum.x x x
“It is also recalled that during the hearing before the Court of the Report and
Recommendation of the Commissioners and objection thereto, Solicitor Padua made the
observation:
‘I understand, Your Honor, that there was a sale that took place in this place of land
recently where the land was sold for P0.20 which is contiguous to this land.’
“The Court gave him permission to submit said document subject to the approval of the
Court. x x x This was before the decision was rendered, and later promulgated on May 26,
1961 or more than one month  after Solicitor Padua made the above observation. He could
have, therefore, checked up the alleged sale and moved for a reopening to adduce further
evidence. He did not do so. He forgot to present the evidence at a more propitious time. Now,
he seeks to introduce said evidence under the guise of newly-discovered evidence.
Unfortunately, the Court cannot classify it as newly-discovered evidence, because under the
circumstances, the correct qualification that can be given is ‘forgotten evidence’. Forgotten
evidence, however, is not newly-discovered evidence."33
The granting or denial of a motion for new trial is, as a general rule, discretionary with the
trial court, whose judgment should not be disturbed unless there is a clear showing of abuse
of discretion.34 We do not see any abuse of discretion on the part of the lower court when it
denied the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
. (a)the lands of appellees Carmen vda. de Castellvi and Maria Nieves Toledo-Gozun,
as described in the complaint, are declared expropriated for public use;
. (b)the fair market value of the lands of the appellees is fixed at P5.00 per square
meter;
. (c)the Republic must pay appellee Castellvi the sum of P3,796,495.00 as just
compensation for her one parcel of land that has an area of 759,299 square meters,
minus the sum of P151,859.80 that she withdrew out of the amount that was
deposited in court as the provisional value of the land, with interest at the rate of
6% per annum from July 10, 1959 until the day full payment is made or deposited in
court;
. (d)the Republic must pay appellee Toledo-Gozun the sum of P2,695,225.00 as the
just compensation for her two parcels of land that have a total area of 539,045
square meters, minus the sum of P107,809.00 that she withdrew out of the amount
that was deposited in court as the provisional value of her lands, with interest at the
rate of 6% per annum from July 10, 1959 until the day full payment is made or
deposited in court;
. (e)the attorney’s lien of Atty. Alberto Cacnio is enforced; and
. (f)the costs should be paid by appellant Republic of the Philippines, as provided in
Section 12, Rule 67, and in Section 13, Rule 141, of the Rules of Court.
IT IS SO ORDERED.
     Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muñoz Palma and Aquino,
JJ., concur.
     Castro, Fernando, Teehankee and Makasiar, JJ., did not take part.
Decision modified.
Notes.—a) Existence of necessity.—To authorize the condemnation of any particular land
by a grantee of the power of eminent domain, a necessity must exist for the taking thereof for
the proposed uses and purposes. The very foundation of the right to exercise eminent domain
is a genuine necessity, and that necessity must be of a public character. The ascertainment of
the necessity must precede or accompany, and not follow, the taking of the land (City of
Manila vs. Arellano Law Colleges, L-2929, February 28, 1950). Necessity for expropriation of
property for a particular purpose does not mean absolute, but only reasonable or practical,
necessity, such as would combine the greatest benefit to the public with the least
inconvenience and expense to the parties in interest, consistent with such benefit (Ilocos
Norte vs. Compania General de Tabacos, L-7361, April 20, 1956).
. b)Just compensation.—The prices and values to be considered in expropriation
proceedings are those prevailing at the beginning of the expropriation, not the
increased values which may be brought about by improvements and actuations of
the government after occupying the premises (Republic vs. Garcellano, L-9556,
March 29, 1958). The value of the property sought to be condemned may be
determined by the price paid for an adjoining property similarly expropriated
(Republic vs. Philippine National Bank, L-14158, April 12, 1961). In appraising the
value of real property sought to be expropriated, valuations made at some other
time involving other parcels of land situated in different localities can hardly be
 considered evidentiary facts on the price of the lands sought to be expropriated
(Republic vs. Yaptinchay, L-13684, July 26,1960).

. c)Report of the commissioners.—Being disinterested landowners, selected for their

ability to arrive at a judicious decision in the assessment of damages and being
allowed to view the property, the report of the commissioners is entitled to greater
weight than that of an ordinary trier of facts. Notwithstanding the respect due to the
report of the commissioners, their valuation of the property must be supported by a
competent evidence or record, and in those cases where the evidence as to the
value and damages is conflicting, they should always set forth in full their reasons
for accepting certain evidence, especially in those cases where a view of the
premises has been made (Republic vs. Vda. de Mortera, L-5776, April 14, 1954). The
court to which the report of the commissioners is submitted in an expropriation case
may, as a general rule, set it aside only for errors or irregularities in the procedure
or where it is against the decided weight of evidence, such a report being regarded
as entitled to even greater respect than the verdict of a jury in an ordinary action
(Republic vs. Garcia, L-3526, March 27, 1952).

———o0o———
 No. L-59603. April 29, 1987.*
EXPORT PROCESSING ZONE AUTHORITY, petitioner, vs. HON. CEFERINO E. DULAY,
in his capacity as the Presiding Judge, Court of First Instance of Cebu, Branch XVI,
Lapu-Lapu City, and SAN ANTONIO DEVELOPMENT CORPORATION, respondents.
Constitutional Law; Just Compensation; Meaning of just compensation.—Just
Compensation means the equivalent for the value of the property at the time of its taking.
Anything beyond that is more and anything short of that is less, than just compensation. It
means a fair and full equivalent for the loss sustained, which is the measure of the indemnity,
not whatever gain would accrue to the expropriating entity.
(Uy v. Genato, 57 SCRA 123). The tax declaration under the Real Property Tax Code is,
undoubtedly, for purposes of taxation." The determination of "just compensation" in eminent
domain cases is a judicial function. The executive department or the legislature may make the
initial determinations but when a party claims a violation of the guarantee in the Bill of Rights
that private property may not be taken for public use without just compensation, no statute,
decree, or executive order can mandate that its own determination shall prevail over the
court's findings. Much less can the courts be precluded from looking into the "just-ness" of the
decreed compensation.
PETITION for certiorari and mandamus to review the order of the Court of First Instance of
Cebu, Br. XVI, Dulay, J.

Same; Same; Same; Provisions of PD Nos. 76, 464, 794 and 1533 on just compensation The facts are stated in the opinion of the Court,
unconstitutional and void; Court has the power to determine just compensation and to appoint
commissioners for the purpose.—The method of ascertaining just compensation under the      Elena M. Cuevas for respondents.
aforecited decrees constitutes impermissible encroachment on judicial prerogatives. It tends to
render this Court inutile in a matter which under the Constitution is reserved to it for final
GUTIERREZ, JR., J.:
determination. Thus, although in an expropriation proceeding the court technically would still
have the power to determine the just compensation for the property, following the applicable
decrees, its task would be relegated to simply stating the lower value of the property as The question raised in this petition is whether or not Presidential Decrees Numbered 76, 464,
declared either by the owner or the assessor. As a necessary consequence, it would be useless 794 and 1533 have repealed and superseded Sections 5 to 8 of Rule 67 of the Revised Rules
for the court to appoint commissioners under Rule 67 of the Rules of Court. Moreover, the of Court, such that in determining the just compensation of property in an expropriation case,
need to satisfy the due process clause in the taking of private property is seemingly fulfilled the only basis should be its market value as declared by the owner or as determined by the
since it cannot be said that a judicial proceeding was not had before the actual taking. assessor, whichever is lower.
However, the strict application of the decrees during the proceedings would be nothing short
of a mere formality or charade as the court has only to choose between the valuation of the On January 15, 1979, the President of the Philippines, issued Proclamation No. 1811,
owner and that of the assessor, and its choice is always limited to the lower of the two. The reserving a certain parcel of land of the public domain situated in the City of Lapu-Lapu, Island
court cannot exercise its discretion or independence in determining what is just or fair. Even a of Mactan, Cebu and covering a total area of 1,193,669 square meters, more or less, for the
grade school pupil could substitute for the judge insofar as the determination of constitutional establishment of an export processing zone by petitioner Export Processing Zone Authority
just compensation is concerned. "Another consideration why the Court is empowered to (EPZA).
appoint commissioners to assess the just compensation of these properties under eminent
domain proceedings, is the well-entrenched ruling that 'the owner of property expropriated is Not all the reserved area, however, was public land, The proclamation included, among
entitled to recover from expropriating authority the fair and full value of the lot, as of the time others, four (4) parcels of land with an aggregate area of 22,328 square meters owned and
when possession thereof was actually taken by the province, plus consequential damages— registered in the name of the private respondent. The petitioner, therefore, offered to
including attorney's fees—from which the consequential benefits, if any should be deducted, purchase the parcels of land from the respondent in acccordance with the valuation set forth
with interest at the legal rate, on the aggregate sum due to the owner from and after the date in Section 92, Presidential Decree (P.D.) No. 464, as amended. The parties failed to reach an
of actual taking.' (Capitol Subdivision, Inc. v. Province of Negros Occidental, 7 SCRA 60). In agreement regarding the sale of the property.
fine, the decree only establishes a uniform basis for determining just compensation which the
Court may consider as one of the factors in arriving at 'just compensation/ as envisage in the
The petitioner filed with the then Court of First Instance of Cebu, Branch XVI, Lapu-Lapu
Constitution. In the words of Justice Barredo, 'Respondent court's invocation of General Order
City, a complaint for expropriation with a prayer for the issuance of a writ of possession
No. 3 of September 21, 1972 is nothing short of an unwarranted abdication of judicial
against the private respondent, to expropriate the aforesaid parcels of land pursuant to P.D.
authority, which no judge duly imbued with the implications of the paramount principle of
No. 66, as amended, which empowers the petitioner to acquire by condemnation proceedings
independence of the judiciary should ever think of doing.' (Lina v. Purisima, 82 SCRA 344,
any property for the establishment of export processing zones, in relation to Proclamation No.
351; Cf. Prov. of Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80 SCRA 117) Indeed,
1811, for the purpose of establishing the Mactan Export Processing Zone.
where this Court simply follows PD 1533, thereby limiting the determination of just
compensation on the value declared by the owner or administrator or as determined by the
Assessor, whichever is lower, it may result in the deprivation of the landowner's right of due
process to enable it to prove its claim to just compensation, as mandated by the Constitution.
 On October 21, 1980, the respondent judge issued a writ of possession authorizing the
petitioner to take immediate possession of the premises. On December 23, 1980, the private
respondent f iled its answer.
At the pre-trial conference on February 13, 1981, the respondent judge issued an order
stating that the parties have agreed that the only issue to be resolved is the just
compensation for the properties and that the pre-trial is thereby terminated and the hearing
on the merits is set on April 2,1981.
On February 17, 1981, the respondent judge issued the order of condemnation declaring
the petitioner as having the lawful right to take the properties sought to be condemned, upon
the payment of just compensation to be determined as of the filing of the complaint. The
respondent judge also issued a second order, subject of this petition, appointing certain
persons as commissioners to ascertain and report to the court the just compensation for the
properties sought to be expropriated.
On June 19, 1981, the three commissioners submitted their consolidated report
recommending the amount of P15.00 per square meter as the fair and reasonable value of
just compensation f or the properties.
On July 29, 1981, the petitioner filed a Motion for Reconsideration of the order of February
19, 1981 and Objection to Commissioner's Report on the grounds that P.D. No. 1533 has
superseded Sections 5 to 8 of Rule 67 of the Rules of Court on the ascertainment of just
compensation through commissioners; and that the compensation must not exceed the
maximum amount set by P.D. No. 1533.
On November 14, 1981, the trial court denied the petitioner's motion for reconsideration
and gave the latter ten (10) days within which to file its objection to the Commissioner's
Report.
On February 9, 1982, the petitioner filed this present petition f or certiorari and mandamus
with preliminary restraining order, enjoining the trial court from enforcing the order dated
February 17, 1981 and from further proceeding with the hearing of the expropriation case.
The only issue raised in this petition is whether or not Sections 5 to 8, Rule 67 of the
Revised Rules of Court had been repealed or deemed amended by P.D. No. 1533 insofar as
the appointment of commissioners to determine the just compensation is concerned. Stated in
another way, is the exclusive and mandatory mode of determining just compensation in P.D.
No. 1533 valid and constitutional?
The petitioner maintains that the respondent judge acted in excess of his jurisdiction and
with grave abuse of discretion in denying the petitioner's motion for reconsideration and in
setting the commissioner's report for hearing because under P.D. No. 1533, which is the
applicable law herein, the basis of just compensation shall be the fair and current market
value declared by the owner of the property sought to be expropriated or such market value
as determined by the assessor, whichever is lower. Therefore, there is no more need to
appoint commissioners as prescribed by Rule 67 of the Revised Rules of Court and for said
commissioners to consider other highly variable factors in order to determine just
compensation. The petitioner further maintains that P.D. No. 1533 has vested on the
assessors and the property owners themselves the power or duty to fix the market value of
the properties and that said property owners are given the full opportunity to be heard before
the Local Board of Assessment Appeals and the Central Board of Assessment Appeals. Thus,
the vesting on the assessor or the property owner of the right to determine the just
compensation in expropriation proceedings, with appropriate procedure for appeal to higher
administrative boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533, this Court has interpreted
the eminent domain provisions of the Constitution and established the meaning, under the
fundamental law, of just compensation and who has the power to determine it. Thus, in the
following cases, wherein the filing of the expropriation proceedings were all commenced prior
to the promulgation of the aforementioned decrees, we laid down the doctrine on just
compensation:
Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),
x x x      x x x      x x x
"x x x And in the case of J.M. Tuason & Co,, Inc. v. Land Tenure Administration, 31 SCRA
413, the Court, speaking thru now Chief Justice Fernando, reiterated the 'well-settled (rule)
that just compensation means the equivalent for the value of the property at the time of its
taking. Anything beyond that is more and anything short of that is less, than just
compensation. It means a fair and full equivalent for the loss sustained, which is the measure
of the indemnity, not whatever gain would accrue to the expropriating entity.' " Garcia v.
Court of Appeals (102 SCRA 597, 608),
x x x      x x x      x x x
"x x x Hence, in estimating the market value, all the capabilities of the property and all the
uses to which it may be applied or for which it is adapted are to be considered and not merely
the condition it is in the time and the use to which it is then applied by the owner. All the facts
as to the condition of the property and its surroundings, its improvements and capabilities may
be shown and considered in estimating its value.''
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is not bound by the commissioners' report. It
may make such order or render such judgment as shall secure to the plaintif f the property
essential to the exercise of his right of condemnation, and to the defendant just compensation
for the property expropriated. This Court may substitute its own estimate of the value as
gathered from the record (Manila Railroad Company v. Velasquez, 32 Phil. 286).
However, the promulgation of the aforementioned decrees practically set aside the above and
many other precedents hammered out in the course of evidence-laden, well argued, fully
heard, studiously deliberated, and judiciously considered court proceedings. The decrees
categorically and peremptorily limited the def inition of just compensation thus:
P.D. No. 76:
x x x      x x x      x x x
"For purposes of just compensation in cases of private property acquired by the
government for public use, the basis shall be the current and fair market value declared by the
owner or administrator, or such market value as determined by the Assessor, whichever is
lower."
P.D. No. 464:
"Section 92. Basis for payment of just compensation in expropriation proceedings.—In
determining just compensation which private property is acquired by the government for
public use, the basis shall be the market value declared by the owner or administrator or
anyone having legal interest in the property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just compensation in expropriation proceedings.—In
determining just compensation when private property is acquired by the government for public
use, the same shall not exceed the market value declared by the owner or administrator or
anyone having legal interest in the property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 1533:
"Section 1. In determining just compensation for private property acquired through
eminent domain proceedings, the compensation to be paid shall not exceed the value declared
by the owner or administrator or anyone having legal interest in the property or determined by
the assessor, pursuant to the Real Property Tax Code, whichever value is lower, prior to the
recommendation or decision of the appropriate Government office to acquire the property."
We are constrained to declare the provisions of the Decrees on just compensation
unconstitutional and void and accordingly dismiss the instant petition for lack of merit.
The method of ascertaining just compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a
matter which under the Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court technically would still have the
power to determine the just compensation for the property, following the applicable decrees,
its task would be relegated to simply stating the lower value of the property as declared either
by the owner or the assessor. As a necessary consequence, it would be useless for the court
to appoint commissioners under Rule 67 of the Rules of Court. Moreover, the need to satisfy
the due process 'clause in the taking of private property is seemingly fulfilled since it cannot
be said that a judicial proceeding was not had before the actual taking. However, the strict
application of the decrees during the proceedings would be nothing short of a mere formality
or charade as the court has only to choose between the valuation of the owner and that of the
assessor, and its choice is always limited to the lower of the two. The court cannot exercise its
discretion or independence in determining what is just or fair. Even a grade school pupil could
substitute for the judge insofar as the determination of constitutional just compensation is
concerned.
In the case of National Housing Authority v. Reyes (123 SCRA 245), this Court upheld P.D.
No. 464, as further amended by P.D. Nos. 794, 1224 and 1259. In this case, the petitioner
National Housing Authority contended that the owner's declaration at P1,400.00 which
happened to be lower than the assessor's assessment, is the just compensation for the
respondent's property under section 92 of P.D. No. 464. On the other hand, the private
respondent stressed that while there may be basis for the allegation that the respondent
judge did not follow the decree, the matter is still subject to his final disposition, he having
been vested with the original and competent authority to exercise his judicial discretion in the
light of the constitutional clauses on due process and equal protection.
To these opposing arguments, this Court ruled that under the conceded facts, there should
be a recognition that the law as it stands must be applied; that the decree having spoken so
clearly and unequivocably calls for obedience; and that on a matter where the applicable law
speaks in no uncertain language, the Court has no choice except to yield to its command. We
further stated that "the courts should recognize that the rule introduced by P J.D. No. 76 and
reiterated in subsequent decrees does not upset the established concepts of justice or the
constitutional provision on just compensation for, precisely, the owner is allowed to make his
own valuation of his property."
While the Court yielded to executive prerogative exercised in the form of absolute law-
making power, its members, nonetheless, remained uncomfortable with the implications of the
decision and the abuse and unfairness which might f ollow in its wake. For one thing, the
President himself did not seem assured or confident with his own enactment It was not
enough to lay down the law on determination of just compensation in P.D. 76. It had to be
repeated and reiterated in P.D. 464, P.D. 794, and P.D. 1533. The provision is also found in
P.D. 1224, P.D, 1259 and P.D. 1313. Inspite of its effectivity as general law and the wide
publicity given to it, the questioned provision or an even stricter version had to be embodied
in cases of specific expropriations by decree as in P.D. 1669 expropriating the Tambunting
Estate and P.D. 1670 expropriating the Sunog Apog area in Tondo, Manila.
In the present petition, we are once again confronted with the same question of whether
the courts under P.D. 1533, which contains the same provision on just compensation as its
predecessor decrees, still have the power and authority to determine just compensation,
independent of what is stated by the decree and to this effect, to appoint commissioners for
such purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for reconsideration and objection to the
commissioner's report, the trial court said:
"Another consideration why the Court is empowered to appoint commissioners to assess the
just compensation of these properties under eminent domain proceedings, is the well-
entrenched ruling that 'the owner of property expropriated is entitled to recover from
expropriating authority the fair and full value of the lot, as of the time when possession
thereof was actually taken by the province, plus consequential damages—including attorney's
fees—from which the consequential benefits, if any should be deducted, with interest at the
legal rate, on the aggregate sum due to the owner from and after the date of actual taking.'
(Capitol Subdivision, Inc. v. Province of Negros Occidental, 7 SCRA 60). In fine, the decree
only establishes a uniform basis for determining just compensation which the Court may
consider as one of the factors in arriving at 'just compensation/ as envisage in the
Constitution. In the words of Justice Barredo, 'Respondent court's invocation of General Order
No. 3 of September 21, 1972 is nothing short of an unwarranted abdication of judicial
authority, which no judge duly imbued with the implications of the paramount principle of
independence of the judiciary should ever think of doing.' (Lina v. Purisima, 82 SCRA 344,
351; Cf. Prov. of Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80 SCRA 117) Indeed,
where this Court simply follows PD 1533, thereby limiting the determination of just
compensation on the value declared by the owner or administrator or as determined by the
Assessor, whichever is lower, it may result in the deprivation of the landowner's right of due
process to enable it to prove its claim to just compensation, as mandated by the Constitution.
(Uy v. Genato, 57 SCRA 123). The tax declaration under the Real Property Tax Code is,
undoubtedly, for purposes of taxation."
We are convinced and so rule that the trial court correctly stated that the valuation in the
decree may only serve as a guiding principle or one of the factors in determining just
compensation but it may not substitute the court's own judgment as to what amount should
be awarded and how to arrive at such amount. A return to the earlier well-established
doctrine, to our mind, is more in keeping with the principle that the judiciary should live up to
its mission "by vitalizing and not denigrating constitutional rights." (See Salonga v. Cruz
Paño, 134 SCRA 438, 462; citing Mercado v. Court of First Instance of Rizal, 116 SCRA 93.)
The doctrine we enunciated in National Housing Authority v. Reyes, supra, therefore, must
necessarily be abandoned if we are to uphold this Court's role as the guardian of the
fundamental rights guaranteed by the due process and equal protection clauses and as the
final arbiter over transgressions committed against constitutional rights.
The basic unf airness of the decrees is readily apparent,
Just compensation means the value of the property at the time of the taking. It means
a fair and full equivalent for the loss sustained. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities, should be considered.
In this particular case, the tax declarations presented by the petitioner as basis for just
compensation were made by the Lapu-Lapu municipal, later city assessor long before martial
law, when land was not only much cheaper but when assessed values of properties were
stated in figures constituting only a fraction of their true market value. The private respondent
was not even the owner of the properties at the time. It purchased the lots for development
purposes. To peg the value of the lots on the basis of documents which are out of date and at
prices below the acquisition cost of present owners would be arbitrary and confiscatory.
Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually unif orm f or very wide
areas covering several barrios or even an entire town with the exception of the poblacion.
Individual differences are never taken into account. The value of land is based on such
generalities as its possible cultivation for rice, corn, coconuts, or other crops. Very often land
described as "cogonal" has been cultivated for generations. Buildings are described in terms of
only two or three classes of building materials and estimates of areas are more often
inaccurate than correct. Tax values can serve as guides but cannot be absolute substitutes for
just compensation.
To say that the owners are estopped to question the valuations made by assessors since
they had the opportunity to protest is illusory. The overwhelming mass of land owners accept
unquestioningly what is f ound in the tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less analyze, the statements. The idea of
expropriation simply never occurs until a demand is made or a case f filed by an agency
authorized to do so.
It is violative of due process to deny to the owner the opportunity to prove that the
valuation in the tax documents is unfair or wrong, And it is repulsive to basic concepts of
justice and fairness to allow the haphazard work of a minor bureaucrat or clerk to absolutely
prevail over the judgment of a court promulgated only after expert commissioners have
actually viewed the property, af ter evidence and arguments pro and con have been
presented, and after all factors and considerations essential to a fair and just determination
have been judiciously evaluated.
As was held in the case of Gideon v. Wainwright (93 ALR 2d, 733, 742):
"In the light of these and many other prior decisions of this Court, it is not surprising that the
Betts Court, when faced with the contention that 'one charged with crime, who is unable to
obtain counsel, must be furnished counsel by the State,' conceded that '[E]xpressions in the
opinions of this court lend color to the argument . . .' 316 U.S., at 462, 463, 86 L ed. 1602, 62
S Ct. 1252. The fact is that in deciding as it did—that 'appointment of counsel is not a
fundamental right, essential to a fair trial—the Court in Betts v. Brady made an ubrupt brake
with its own well-considered precedents. in returning to these old precedents, sounder we
believe than the new, we but restore constitutional principles established to achieve a fair
system of justice. x x x;'
We return to older and more sound precedents. This Court has the duty to formulate guiding
and controlling constitutional principles, precepts, doctrines, or rules. (See Salonga v. Cruz
Paño, supra).
The determination of "just compensation" in eminent do main cases is a judicial function.
The executive department or the legislature may make the initial determinations but when a
party claims a violation of the guarantee in the Bill of Rights that private property may not be
taken for public use without just compensation, no statute, decree, or executive order can
mandate that its own determination shall prevail over the court's findings. Much less can the
courts be precluded from looking into the "just-ness" of the decreed compensation.
 We, therefore, hold that P.D. No. 1533, which eliminates the court's discretion to appoint
commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very purpose why this Court exists in the first place.

317

VOL. 149, APRIL 29, 1987 317

Philippine Phoenix Surety and Insurance Inc. vs. Sandiganbayan

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. The

temporary restraining order issued on February 16, 1982 is LIFTED and SET ASIDE.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sa
rmiento and Cortes, JJ., concur.

Teehankee, C.J., in the result.

Yap, J., on leave,

Petition dismissed. Order lifted and set aside.

——o0o——
 No. L-48685. September 30, 1987.*
LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners, vs. HON.
BUENAVENTURA GUERRERO and NATIONAL HOUSING AUTHORITY, respondents.
Constitutional Law; Eminent Domain; Expropriation; Public use requirement for a valid
exercise of power of eminent domain is a flexible and evolving concept influence by changing
conditions. Whatever may be beneficially employed for the general welfare satisfies the
requirement of public use.—The "public use" requirement for a valid exercise of the power of
eminent domain is a flexible and evolving concept influenced by changing conditions. In this
jurisdiction, the statutory and judicial trend has been summarized as follows: The taking to be
valid must be for public use. There was a time when it was felt that a literal meaning should
be attached to such a requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not
anymore. As long as the purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be subdivided into small
lots for resale at cost to individuals. The other is in the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to state then
that at present whatever may be beneficially employed for the general welfare satisfies the
requirement of public use.
Same; Same; Same; The public character of housing measures does not change
because units in housing projects cannot be occupied by all—Housing is a basic human need.
Shortage in housing is a matter of state concern since it directly and significantly affects public
health, safety, the environment and in sum, the general welfare. The public character of
housing measures does not change because units in housing projects cannot be occupied by
all but only by those who satisfy prescribed qualifications. A beginning has to be made, for it is
not possible to provide housing for all who need it, all at once.
Same; Same; Same; The right to the use, enjoyment and disposal of private property is
tempered by and has to yield to the demands of the common good.— The State acting through
the NHA is vested with broad discretion to designate the particular property/properties to be
taken for socialized housing purposes and how much thereof may be expropriated. Absent a
clear showing of fraud, bad faith, or gross abuse of discretion, which petitioners herein failed
to demonstrate, the Court will give due weight to and leave undisturbed the NHA's choice and
the size of the site for the project. The property owner may not interpose objections merely
because in their judgment some other property would have been more suitable, or just as
suitable, for the purpose. The right to the use, enjoyment and disposal of private property is
tempered by and has to yield to the demands of the common good. The Constitutional
provisions on the subject are clear: The State shall promote social justice in all phases of
national development. (Art. II, sec. 10). The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good. To this end, the State shall regulate
the acquisition, ownership, use and disposition of property and its increments. (Art. XIII, sec.
1)
Same; Same; Same; The provisions on just compensation found in Presidential Decree
were declared unconstitutional for being encroachments on judicial prerogative. Tax values
can serve as guides but cannot be absolute substitute for just compensation.— The basic
unfairness of the decrees is readily apparent. Just compensation means the value of the
property at the time of the taking. It means a fair and full equivalent for the loss sustained. All
the facts as to the condition of the property and its surroundings, its improvements and
capabilities, should be considered. Various factors can come into play in the valuation of
specific properties singled out for expropriation. The values given by provincial assessors are
usually uniform for very wide areas covering several barrios or even an entire town with the
exception of the poblacion. Individual differences are never taken into account. The value of
land is based on such generalities as its possible cultivation for rice, corn, coconuts, or other
crops. Very often land described as "cogonal" has been cultivated for generations. Buildings
are described in terms of only two or three classes of building materials and estimates of areas
are more often inaccurate than correct. Tax values can serve as guides but cannot be absolute
substitutes for just compensation. To say that the owners are estopped to question the
valuations made by assessors since they had the opportunity to protest is illusory. The
overwhelming mass of landowners accept unquestioningly what is found in the tax
declarations prepared by local assessors or municipal clerks for them. They do not even look
at, much less analyze, the statements. The idea of expropriation simply never occurs until a
demand is made or a case filed by an agency authorized to do so.
Same; Same; Same; Due Process; The immediate taking of possession, control and
disposition of property without notice and hearing is violative of due process.— It is violative of
due process to deny to the owner the opportunity to prove that the valuation in the tax
documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to
allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the
judgment of a court promulgated only after expert commissioners have actually viewed the
property, after evidence and arguments pro and con have been presented, and after all
factors and considerations essential to a fair and just determination have been judiciously
evaluated. (p. 13) On the matter of the issuance of a writ of possession, the ruling in
the Ignacio case is reiterated, thus: [I]t is imperative that before a writ of possession is issued
by the Court in expropriation proceedings., the following requisites must be met: (1) There
must be a Complaint for expropriation sufficient in form and in substance; (2) A provisional
determination of just compensation for the properties sought to be expropriated must be
made by the trial court on the basis of judicial (not legislative or executive) discretion; and (3)
The deposit requirement under Section 2, Rule 67 must be complied with. (p. 14). This Court
holds that "socialized housing" defined in Pres. Decree No. 1224, as amended by Pres. Decree
Nos. 1259 and 1313, constitutes "public use" for purposes of expropriation. However, as
previously held by this Court, the provisions of such decrees on just compensation are
unconstitutional; and in the instant case the Court finds that the Orders issued pursuant to the
corollary provisions of those decrees authorizing immediate taking without notice and hearing
are violative of due process.
PETITION to review the orders of the Court of First Instance of Rizal, Br. XXIV.
The facts are stated in the opinion of the Court.
CORTES, J.:
On December 5, 1977 the National Housing Authority (NHA) filed a complaint for expropriation c)The Decree violates procedural due process as it allows immediate taking of
of parcels of land covering approximately twenty five (25) hectares, (in Antipolo, Rizal) possession, control and disposition of property without giving the owner his day in
including the lots of petitioners Lorenzo Sumulong and Emilia Vidanes-Balaoing with an area of court;
6,667 square meters and 3,333 square meters respectively. The land sought to be
expropriated were valued by the NHA at one peso (P1.00) per square meter adopting the d)The Decree would allow the taking of private property upon payment of unjust
market value fixed by the provincial assessor in accordance with presidential decrees and unfair valuations arbitrarily fixed by government assessors;
prescribing the valuation of property in expropriation proceedings.
e)The Decree would deprive the courts of their judicial discretion to determine what
Together with the complaint was a motion for immediate possession of the properties. The would be the "just compensation" in each and every case of expropriation.
NHA deposited the amount of P158,980.00 with the Philippine National Bank, representing the
"total market value" of the subject twenty five hectares of land, pursuant to Presidential
Indeed, the exercise of the power of eminent domain is subject to certain limitations imposed
Decree No. 1224 which defines "the policy on the expropriation of private property for
by the constitution, to wit:
socialized housing upon payment of just compensation."

Private property shall not be taken for public use without just compensation" (Art. IV, sec. 9);
On January 17,1978, respondent Judge issued the following Order:

No person shall be deprived of life, liberty, or property without due process of law, nor
Plaintiff having deposited with the Philippine National Bank, Heart Center Extension Office,
shall any person be denied the equal protection of the laws" (Art. IV, sec. 1).
Diliman, Quezon City, Metro Manila, the amount of P1 58,980.00 representing the total market
value of the subject parcels of land, let a writ of possession be issued."
Nevertheless, a clear case of constitutional infirmity has to be established for this Court to
nullify legislative or executive measures adopted to implement specific constitutional
SO ORDERED.
provisions aimed at promoting the general welfare.
Pasig, Metro Manila, January 17,1978.
Petitioners' objections to the taking of their property subsumed under the headings of
public use, just compensation, and due process have to be balanced against competing
(SGD) BUENAVENTURA S. GUERRERO
interests of the public recognized and sought to be served under declared policies of the
Judge     
constitution as implemented by legislation.

Petitioners filed a motion for reconsideration on the ground that they had been deprived of the
. 1.Public use
possession of their property without due process of law. This was however, denied.

. a)Socialized Housing
Hence, this petition challenging the orders of respondent Judge and assailing the
constitutionality of Pres. Decree No. 1224, as amended. Petitioners argue that:
Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as
amended, for the purpose of condemnation proceedings is not "public use" since it will benefit
1)Respondent Judge acted without or in excess of his jurisdiction or with grave
only "a handful of people, bereft of public character."
abuse of discretion by issuing the Order of January 17, 1978 without notice and without
hearing and in issuing the Order dated June 28, 1978 denying the motion for reconsideration.
"Socialized housing" is defined as, "the construction of dwelling units for the middle and
lower class members of our society, including the construction of the supporting infrastructure
2)Pres. Decree 1224, as amended, is unconstitutional for being violative of the due
and other facilities" (Pres. Decree No. 1224, par. 1). This definition was later expanded to
process clause, specifically:
include among others:

a)The Decree would allow the taking of property regardless of size and no matter
a)The construction and/or improvement of dwelling units for the middle and lower
how small the area to be expropriated;
income groups of the society, including the construction of the supporting
infrastructure and other facilities;
b)"Socialized housing'' for the purpose of condemnation proceeding, as defined in
said Decree, is not really for a public purpose;
b)Slum clearance, relocation and resettlement of squatters and slum dwellers as well
as the provision of related facilities and services;
 c)Slum improvement which consists basically of allocating homelots to the dwellers
in the area or property involved, rearrangement and re-alignment of existing houses
and other dwelling structures and the constraction and provision of basic community
facilities and services, where there are none, such as roads, footpaths, drainage,
sewerage, water and power system, schools, barangay centers, community centers,
clinics, open spaces, parks, playgrounds and other recreational facilities;
d)The provision of economic opportunities, including the development of commercial
and industrial estates and such other facilities to enhance the total community
growth; and
e)Such other activities undertaken in pursuance of the objective to provide and
maintain housing for the greatest number of people under Presidential Decree No.
757. (Pres. Decree No. 1259, sec. 1)
The "public use" requirement for a valid exercise of the power of eminent domain is a flexible
and evolving concept influenced by changing conditions. In this jurisdiction, the statutory and
judicial trend has been summarized as follows:
The taking to be valid must be for public use. There was a time when it was felt that a literal
meaning should be attached to such a requirement. Whatever project is undertaken must be
for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not
allowable. It is not anymore. As long as the purpose of the taking is public, then the power of
eminent domain comes into play. As just noted, the constitution in at least two cases, to
remove any doubt, determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The other is in the transfer, through
the exercise of this power, of utilities and other private enterprise to the government. It is
accurate to state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use [Heirs of Juancho Ardona v. Reyes, G.R. Nos.
60549, 60553-60555, October 26, 1983, 125 SCRA 220 (1983) at 234-5 quoting E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed., 1977) Italics
supplied].
The term "public use" has acquired a more comprehensive coverage. To the literal import of
the term signifying strict use or employment by the public has been added the broader notion
of indirect public benefit or advantage. As discussed in the above cited case of Heirs of
Juancho A rdona:
The restrictive view of public use may be appropriate for a nation which circumscribes the
scope of government activities and public concerns and which possesses big and correctly
located public lands that obviate the need to take private property for public purposes. Neither
circumstance applies to the Philippines. We have never been a laissez faire State. And the
necessities which impel the exertion of sovereign power are all too often found in areas of
scarce public land or limited government resources. (p. 231)
Specifically, urban renewal or redevelopment and the construction of low-cost housing is
recognized as a public purpose, not only because of the expanded concept of public use but
also because of specific provisions in the Constitution. The 1973 Constitution made it
incumbent upon the State to establish, maintain and ensure adequate social services including
housing [Art. II, sec. 7]. The 1987 Constitution goes even further by providing that:
The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and f ree the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard of living and an improved
quality of life for all. [Art. II, sec. 9]
The state shall by law, and for the common good, undertake, in cooperation with the
private sector, a continuing program of urban land reform and housing which will make
available at affordable cost decent housing and basic services to underprivileged and
homeless citizens in urban centers and resettlement areas. It shall also promote adequate
employment opportunities to such citizens. In the implementation of such program the State
shall respect the rights of small property owners. (Art. XIII, sec. 9, Italics supplied)
Housing is a basic human need. Shortage in housing is a matter of state concern since it
directly and significantly affects public health, safety, the environment and in sum, the general
welfare. The public character of housing measures does not change because units in housing
projects cannot be occupied by all but only by those who satisfy prescribed qualifications. A
beginning has to be made, for it is not possible to provide housing for all who need it, all at
once.
Population growth, the migration to urban areas and the mushrooming of crowded
makeshift dwellings is a worldwide development particularly in developing countries. So basic
and urgent are housing problems that the United Nations General Assembly proclaimed 1987
as the "Intenational Year of Shelter for the Homeless" "to focus the attention of the
international community on those problems". The General Assembly is "[s]eriously concerned
that, despite the efforts of Governments at the national and local levels and of international
organizations, the living conditions of the majority of the people in slums and squatter areas
and rural settlements, especially in developing countries, continue to deteriorate in both
relative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations 1982, Vol. 36,
p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" falls within the
confines of "public use". It is, particularly important to draw attention to paragraph (d) of
Pres. Dec. No. 1224 which should be construed in relation with the preceding three
paragraphs, Provisions on economic opportunities inextricably linked with low-cost housing, or
slum clearance, relocation and resettlement, or slum improvement emphasize the public
purpose of the project.
In the case at bar, the use to which it is proposed to put the subject parcels of land meets
the requisites of "public use". The lands in question are being expropriated by the NHA for the
expansion of Bagong Nayon Housing Project to provide housing facilities to low-salaried
government employees. Quoting respondents:
1. The Bagong Nayong Project is a housing and community development undertaking of the
National Housing Authority. Phase 1 covers about 60 hectares of GSIS property in Antipolo,
Rizal; Phase II includes about 30 hectares for industrial development and
the rest are for residential housing development.
It is intended for low-salaried government employees and aims to provide housing and
community services for about 2,000 families in Phase I and about 4,000 families in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms. east of
Manila; and is within the Lungsod Silangan Townsite Reservation (created by Presidential
Proclamation No. 1637 on April 18,1977).
The lands involved in the present petitions are parts of the expanded/additional areas for
the Bagong Nayon Project totalling 25.9725 hectares. They likewise include raw, rolling hills.
(Rollo, pp. 266-7)
The acute shortage of housing units in the country is of public knowledge. Official data
indicate that more than one third of the households nationwide do not own their dwelling
places. A significant number live in dwellings of unacceptable standards, such as shanties,
natural shelters, and structures intended for commercial. industrial, or agricultural purposes.
Of these unacceptable dwelling units, more than one third is located within the National
Capital Region (NCR) alone which lies proximate to and is expected to be the most benefited
by the housing project involved in the case at bar [See, National Census and Statistics
Office, 1980 Census of Population and Housing].
According to the National Economic and Development Authority at the time of the
expropriation in question, about "50 per cent of urban families, cannot afford adequate shelter
even at reduced rates and will need government support to provide them with social
housing, subsidized either partially or totally" [NEDA, FOUR YEAR DEVELOPMENT PLAN FY
1974-1977, p. 357]. Up to the present, housing "still remains to be out of the reach of a
sizable proportion of the population" [NEDA, MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN
1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila area as well as in other
cities and centers of population throughout the country, and, the efforts of the government to
initiate housing and other projects are matters of public knowledge [See NEDA, FOUR YEAR
DEVELOPMENT PLAN FY 1974-1977, pp. 357-361; NEDA, FIVE-YEAR PHILIPPINE
DEVELOPMENT PLAN 1978-1982, pp. 215228; NEDA, FIVE YEAR PHILIPPINE DEVELOPMENT
PLAN 1983-1987, pp. 109-117; NEDA, MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN 1987-
1992, pp. 240254].
. b)Size of Property
Petitioners further contend that Pres, Decree 1224, as amended, would allow the taking of
"any private land" regardless of the size and no matter how small the area of the land to be
expropriated Petitioners claim that "there are vast areas of lands in Mayamot, Cupang, and
San Isidro, Antipolo, Rizal hundred of hectares of which are owned by a few landowners only.
It is surprising [therefore] why respondent National Housing Authority [would] include [their]
two small lots …"
In J.M. Tuason Co., Inc. v. Land Tenure Administration, [G.R. No. L-21064, February 18,
1970, 31 SCRA 413 (1970) at 428] this Court earlier ruled that expropriation is not confined to
landed estates. This Court, quoting the dissenting opinion of Justice J.B.L. Reyes in Republic
v. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under Article XIII, section 4 of our
Constitution cannot be determined on a purely quantitative or area basis. Not only does the
constitutional provision speak of lands instead of landed estates, but I see no cogent reason
why the government. in its quest for social justice and peace, should exclusively devote
attention to conflicts of large proportions, involving a considerable number of individuals, and
eschew small controversies and wait until they grow into a major problem before taking
remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido v. Rural Progress
Administration [84 Phil. 847 (1949)] which held that the test to be applied for a valid
expropriation of private lands was the area of the land and not the number of people who
stood to be benefited. Since then "there has evolved a clear pattern of adherence to the
'number of people to be benefited test' " [Mataas na Lupa Tenants Association, Inc, v.
Dimayuga, G.R. No. 32049, June 25,1984, 130 SCRA 30 (1984) at 39]. Thus, in Pulido v.
Court of Appeals [G.R. No. 57625, May 3,1983, 122 SCRA 63 (1983) at 73], this Court stated
that, "[i]t is unfortunate that the petitioner would be deprived of his landholdings, but his
interest and that of his family should not stand in the way of progress and the benefit of the
greater majority of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion to designate the
particular property/properties to be taken for socialized housing purposes and how much
thereof may be expropriated. Absent a clear showing of fraud, bad faith, or gross abuse of
discretion, which petitioners herein failed to demonstrate, the Court will give due weight to
and leave undisturbed the NHA's choice and the size of the site for the project. The property
owner may not interpose objections merely because in their judgment some other property
would have been more suitable, or just as suitable, for the purpose. The right to the use,
enjoyment and disposal of private property is tempered by and has to yield to the demands of
the common good. The Constitutional provisions on the subject are clear:
The State shall promote social justice in all phases of national development. (Art. II, sec. 10)
The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power
for the common good. To this end, the State shall regulate the acquisition, ownership, use and
disposition of property and its increments. (Art. XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the provisions in the 1935 and
1973 Constitutions, emphasize:
… the stewardship concept, under which private property is supposed to be held by the
individual only as a trustee for the people in general, who are its real owners. As a mere
steward, the individual must exercise his rights to the property not for his own exclusive and
selfish benefit but for the good of the entire community or nation [Mataas na Lupa Tenants
Association, Inc. supra at 42-3 citing I. CRUZ, PHILIPPINE POLITICAL LAW, 70 (1983 ed.)].
. 2.Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended. would allow the taking of
private property upon payment of unjust and unfair valuations arbitrarily fixed by government
assessors. In addition, they assert that the Decree would deprive the courts of their judicial
discretion to determine what would be "just compensation".
The foregoing contentions have already been ruled upon by this Court in the case
of Ignacio v. Guerrero (G.R. No. L-49088, May 29, 1987) which, incidentally, arose from the
same expropriation complaint that led to this instant petition. The provisions on just
compensation found in Presidential Decree Nos. 1224, 1259 and 1313 are the same provisions
found in Presidential Decree Nos. 76, 464, 794 and 1533 which were declared unconstitutional
in Export Processing Zone Authority v. Dulay (G.R. No. 59603, April 29, 1987) for being
encroachments on judicial prerogatives.
This Court abandoned the ruling in National Housing Authority v. Reyes [G.R. No. 49439,
June 29,1983, 123 SCRA 245 (1983)] which upheld Pres. Decree No. 464, as amended by
Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It means
a fair and full equivalent for the loss sustained. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities, should be considered.
*      *      *
Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as
"cogonal" has been cultivated for generations. Buildings are described in terms of only two or
three classes of building materials and estimates of areas are more often inaccurate than
correct. Tax values can serve as guides but cannot be absolute substitutes for just
compensation.
To say that the owners are estopped to question the valuations made by assessors since
they had the opportunity to protest is illusory. The overwhelming mass of landowners accept
unquestioningly what is found in the tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less analyze, the statements. The idea of
expropriation simply never occurs until a demand is made or a case filed by an agency
authorized to do so. (pp. 12-3)
. 3.Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates procedural due process as it
allows immediate taking of possession, control and disposition of property without giving the
owner his day in court. Respondent Judge ordered the issuance of a writ of possession without
notice and without hearing.
The constitutionality of this procedure has also been ruled upon in the Export Processing
Zone Authority case, viz:
It is violative of due process to deny to the owner the opportunity to prove that the valuation
in the tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and
fairness to allow the haphazard work of minor bureaucrat or clerk to absolutely prevail over
the judgment of a court promulgated only after expert commissioners have actually viewed
the property, after evidence and arguments pro and con have been presented, and after all
factors and considerations essential to a fair and just determination have been judiciously
evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in the Ignacio case is
reiterated, thus:
[I]t is imperative that before a writ of possession is issued by the Court in expropriation
proceedings, the following requisites must be met: (1) There must be a Complaint for
expropriation sufficient inform and in substance; (2) A provisional determination of just
compensation for the properties sought to be expropriated must be made by the trial court on
the basis of judicial (not legislative or executive) discretion; and (3) The deposit requirement
under Section 2, Rule 67 must be complied with. (p. 14)
This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as amended by
Pres. Decree Nos. 1259 and 1313, constitutes "public use" for purposes of expropriation.
However, as previously held by this Court, the provisions of such decrees on just
compensation are unconstitutional; and in the instant case the Court finds that the Orders
issued pursuant to the corollary provisions of those decrees authorizing immediate taking
without notice and hearing are violative of due process.
WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28,1978
issuing the writ of possession on the basis of the market value appearing therein are annulled
for having been issued in excess of jurisdiction. Let this case be remanded to the court of
origin for further proceedings to determine the compensation the petitioners are entitled to be
paid. No costs.
SO ORDERED.
     Teehankee, (C.J.), Yap, Fernan, Narvasa, MelencioHerrera, Gutierrez,
Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ.,  concur.
 Orders annulled. Case remanded to the court of origin for further proceedings.

Notes.—P.D. No. 42 repealed Section 2, Rule 67 of the Rules of Court. Prior hearing is no
longer necessary before a plaintiff can take immediate possession of the property sought to be
expropriated. (Haguisan vs. Emilia, 131 SCRA 517.)

The determination of just compensation in eminent domain cases is a judicial function.

(EPZA vs. Dulay, G.R. No. 59603, April 29,1987.)

——o0o——
 No. L-55166. May 21, 1987.*
ELISA R. MANOTOK, PATRICIA L. TIONGSON, married to CAYETANO TIONGSON,
PACITA L. GO married to EDUARDO GO, ROBERTO LAPERAL III, MIGUEL SISON,
PHILIP L. MANOTOK, MARIA TERESA L. MANOTOK, JOSE CLEMENTE MANOTOK,
RAMON SEVERINO MANOTOK, JOSE MARIA MANOTOK and JESUS JUDE MANOTOK,
JR., assisted by their father and judicial guardian, JESUS MANOTOK, MILAGROS V.
MANOTOK, IGNACIO V. MANOTOK, JR., FELISA V. MANOTOK, MARY-ANN V.
MANOTOK, MICHAEL V. MANOTOK, FAUSTO C. MANOTOK, SEVERINO MANOTOK
III, and JESUS MANOTOK, petitioners, vs. NATIONAL HOUSING AUTHORITY and
REPUBLIC OF THE PHILIPPINES, respondents.
No. L-55167. May 21, 1987.*
PATRICIA L. TIONGSON, PACITA L. GO, assisted by her husband EDWARD GO, ROBERTO
LAPERAL III, ELISA R. MANOTOK, ROSA R. MANOTOK, JESUS R. MANOTOK, MIGUEL A. B.
SISON, SEVERINO MANOTOK III, JOSE MARIA MANOTOK and JESUS MANOTOK, represented
herein by their father and judicial guardian JESUS MANOTOK, JR., IGNACIO R. MANOTOK,
SEVERINO MANOTOK, JR., and FAUSTO C. MANOTOK, petitioners, vs. NATIONAL HOUSING
AUTHORITY and the REPUBLIC OF THE PHILIPPINES, respondents.
Constitutional Law; Eminent Domain; PD Nos. 1669 and 1670 expropriating the
Tambunting Estate and Estero de Sunog-Apog respectively violate due process of law and are
declared unconstitutional—After a careful examination of the questioned decrees, we find P.D.
Nos. 1669 and 1670 to be violative of the petitioners' right to due process of law and,
therefore, they must fail the test of constitutionality. The decrees, do not by themselves,
provide for any form of hearing or procedure by which the petitioners can question the
propriety of the expropriation of their properties or the reasonableness of the just
compensation. Having failed to provide for a hearing, the Government should have filed an
expropriation case under Rule 67 of the Revised Rules of Court but it did not do so. Obviously,
it did not deem it necessary because of the enactment of the questioned decrees which
rendered, by their very passage, any questions with regard to the expropriation of the
properties, moot and academic. In effect, the properties, under the decrees were
"automatically expropriated." This became more evident when the NHA wrote the Register of
Deeds and requested her to cancel the certificate of titles of the petitioners, furnishing said
Register of Deeds only with copies of the decrees to support its request. This is hardly the due
process of law which the state is expected to observe when it exercises the power of eminent
domain.
Same; Same; PD No. 464 known as the Real Property Tax Code cannot be a substitute
for an expropriation proceeding under Rule 67 of the Revised Rules of Court in order to fulfill
requirement of due process.—The  government states that there is no arbitrary determination
of the fair market value of the property by the government assessors because if the owner is
not satisfied with the assessor's action, he may within sixty (60) days appeal to the Board of
Assessment Appeals of the province or city as the case may be and if said owner is still
unsatisfied, he may appeal further to the Central Board of Assessment Appeals pursuant to
P.D. No. 464. The Government argues that with this procedure, the due process requirement
is fulfilled. Presidential Decree No. 464, as amended, otherwise known as the Real Property
Tax Code, provides for the procedure on how to contest assessments but does not deal with
questions as to the propriety of the expropriation and the manner of payment of just
compensation in the exercise of the power of eminent domain. We find this wholly
unsatisfactory. It cannot in anyway substitute for the expropriation proceeding under Rule 67
of the Revised Rules of Court.
Same; Same; Basis of eminent domain is necessity of a public character.—The basis f or
the exercise of the power of eminent domain is necessity. This Court stated in City of Manila
v. Chinese Community of Manila (40 Phil. 349) that "(t)he very foundation of the right to
exercise eminent domain is a genuine necessity and that necessity must be of a public
character." In City of Manila v. Arellano Law Colleges (85 Phil. 663), we reiterated that a
necessity must exist for the taking of private property for the proposed uses and purposes but
accepted the fact that modern decisions do not call for absolute necessity. It is enough if the
condemnor can show a reasonable or practical necessity, which of course, varies with the time
and peculiar circumstances of each case. In the instant petitions, there is no showing
whatsoever as to why the properties involved were singled out for expropriation through
decrees or what necessity impelled the particular choices or selections. In expropriations
through legislations, there are, at least, debates in Congress open to the public, scrutiny by
individual members of the legislature, and very often, public hearings before the statute is
enacted. Congressional records can be examined. In these petitions, the decrees show no
reasons whatsoever for the choice of the properties as housing projects. The anonymous
adviser who drafted the decrees for the President's signature cannot be questioned as to any
possible error or partiality, act of vengeance, or other personal motivations which may have
led him to propose the direct expropriation with its onerous provisions. The Tambunting estate
or at least the western half of the subdivision fronting Rizal Avenue Extension is valuable
commercial property. It is located at the junction where three main city streets converge—
Rizal Avenue from downtown Manila, Jose Abad Santos Street from Binondo, and Aurora
Boulevard leading to Retiro Street and other points in Quezon City. The Libiran Furniture
Company, alone, which fronts the entrance to Jose Abad Santos Street is clearly a multi-million
peso enterprise. It is a foregone conclusion that the favored squatters allowed to buy these
choice lots would lose no time, once it is possible to do so, to either lease out or sell their lots
to wealthy merchants even as they seek other places where they can set up new squatter
colonies. The public use and social justice ends stated in the whereas clauses of P.D. 1669 and
P.D. 1670 would not be served thereby. The provision of P.D. 1669 which allows NHA, at its
sole option, to put portions of the expropriated area to commercial use in order to defray the
development costs of its housing projects cannot stand constitutional scrutiny. The
Government, for instance, cannot expropriate the flourishing Makati commercial area in order
to earn money that would finance housing projects all over the country. The leading case
of Guido v. Rural Progress Administration  (84 Phil. 847) may have been modified in some
ways by the provisions of the new Constitution on agrarian and urban land reform and on
housing. The principle of non-appropriation of private property for private purposes, however,
remains. The legislature, according to the Guido case, may not take the property of one citizen
and transfer it to another, even for a full compensation, when the public interest is not
thereby promoted. The Government still has to prove that expropriation of commercial
properties in order to lease them out also for commercial purposes would be "public use"
under the Constitution. P.D. No. 1670 suffers from a similar infirmity. There is no showing how
the President arrived at the conclusion that the Sunog-Apog area is a blighted community. The
many pictures submitted as exhibits by the petitioners show a well-developed area subdivided
into residential lots with either middle-income or upper class homes. There are no squatters.
The provisions of the decree on the relocation of qualified squatter families and on the re-
blocking and re-alignment of existing structures to allow the introduction of basic facilities and
services have no basis in fact. The area is well-developed with roads, drainage and sewer
facilities, Water connections to the Metropolitan Waterworks and Sewerage System, electric
connections to Manila Electric Company, and telephone connections to the Philippine Long
Distance Telephone Company. There are many squatter colonies in Metro Manila in need of
upgrading. The Government should have attended to them first. There is no showing for a
need to demolish the existing valuable improvements in order to upgrade Sunog-Apog.
Same; Same; Just Compensation; Value of the property should be fixed at the time of
its taking.—In these petitions, a maximum amount of compensation was imposed by the
decrees and these amounts were only a little more than the assessed value of the properties
in 1978 when, according to the government, it decided to acquire said properties. The fixing
of the maximum amounts of compensation and the bases thereof which are the assessed
values of the properties in 1978 deprive the petitioner of the opportunity to prove a higher
value because, the actual or symbolic taking of such properties occurred only in 1980 when
the questioned decrees were promulgated. According to the government, the cut-off year
must be 1978 because it was in this year that the government decided to acquire the
properties and in the case of the Tambunting Estate, the President even made a public
announcement that the government shall acquire the estate for the fire victims. The decision
of the government to acquire a property through eminent domain should be made known to
the property owner through a formal notice wherein a hearing or a judicial proceeding is
contemplated as provided for in Rule 67 of the Rules of Court. This shall be the time of
reckoning the value of the property for the purpose of just compensation. A television or news
announcement or the mere fact of the property's inclusion in the Zonal Improvement Program
(ZIP) cannot suffice because for the compensation to be just, it must approximate the value of
the property at the time of its taking and the government can be said to have decided to
acquire or take the property only after it has, at the least, commenced a proceeding, judicial
or otherwise, for this purpose.
Same; Same; Same; Same; In fixing just compensation, valuation made by a local
assessor is not enough, other factors must be considered—The market value stated by the city
assessor alone cannot substitute for the court's judgment in expropriation proceedings. It is
violative of the due process and the eminent domain provisions of the Constitution to deny to
a property owner the opportunity to prove that the valuation made by a local assessor is
wrong or prejudiced. The statements made in tax documents by the assessor may serve as
one of the factors to be considered but they cannot exclude or prevail over a court
determination made after expert commissioners have examined the property and all partinent
circumstances are taken into account and after the parties have had the opportunity to fully
plead their cases before a competent and unbiased tribunal. To enjoin this Court by decree
from looking into alleged violations of the due process, equal protection, and eminent domain
clauses of the Constitution is impermissible encroachment on its independence and
prerogatives. The maximum amounts, therefore, which were provided for in the questioned
decrees cannot adequately reflect the value of the property and, in any case, should not be
binding on the property owners for, as stated in the above cases, there are other factors to be
taken into consideration. We, thus, find the questioned decrees to likewise transgress the
petitioners' right to just compensation. Having violated the due process and just compensation
guarantees, P. D. Nos. 1669 and 1670 are unconstitutional and void.
GUTIERREZ, JR., J.:
Before us are two petitions. The first one challenges the constitutionality of Presidential
Decree No. 1669 which provides for the expropriation of the property known as the
''Tambunting Estate" and the second challenges the constitutionality of Presidential Decree No.
1670 which provides for the expropriation of the property along the Estero de Sunog-Apog. In
both cases, the petitioners maintain that the two decrees are unconstitutional and should be
declared null and void because:
"(1) They deprived the petitioners of their properties without due process of law.
"(2)The petitioners were denied to their right to just compensation.
"(3)The petitioners' right to equal protection of the law was violated.
"(4)The decrees are vague, defective, and patently erroneous.
"(5)The petitioners' properties are not proper subjects for expropriation considering their
location and other relevant circumstances."
On June 11, 1977, the President of the Philippines issued Letter of Instruction (LOI) No. 555
instituting a nationwide slum improvement and resettlement program (SIR). On the same
date, the President also issued LOI No. 557, adopting slum improvement as a national housing
policy.
In compliance with LOI No. 555, the Governor of Metro Manila issued, on July 21, 1977,
Executive Order No. 6-77 adopting the Metropolitan Manila Zonal Improvement Program which
included the properties known as the Tambunting Estate and the Sunog-Apog area in its
priority list for a zonal improvement program (ZIP) because the findings of the representative
of the City of Manila and the National Housing Authority (NH A) described these as blighted
communities.
On March 18, 1978, a fire razed almost the entire Tambunting Estate. Following this
calamity, the President and the Metro Manila Governor made public announcement that the
national government would acquire the property for the fire victims. The President also
designated the NHA to negotiate with the owners of the property for the acquisition of the
same. This, however, did not materialize as the negotiations for the purchase of the property
failed.
On December 22, 1978, the President issued Proclamation No. 1810 declaring all sites
identified by the Metro Manila local governments and approved by the Ministry of Human
Settlements to be included in the ZIP upon proclamation of the President. The Tambunting
Estate and the Sunog-Apog area were among the sites included.
On January 28, 1980, the President issued the challenged Presidential Decrees Nos. 1669
and 1670 which respectively declared the Tambunting Estate and the Sunog-Apog area
expropriated.
 Presidential Decree No. 1669, provides, among others:
"Section 1. The real properties known as the Tambunting Estate' and covered by TCT Nos.
119059, 122450, 122459, 122452 and Lots Nos. 1-A, 1-C, 1-D, 1-E, 1-F and 1-H of (LRC) Psd-
230517 (Previously covered by TCT No. 119058) of the Register of Deeds of Manila with an
area of 52,688.70 square meters, more or less are hereby declared expropriated. The National
Housing Authority hereinafter referred to as the 'Authority' is designated administrator of the
National Government with authority to immediately take possession, control, disposition, with
the power of demolition of the expropriated properties and their improvements and shall
evolve and implement a comprehensive development plan for the condemned properties."
x x x      x x x      x x x
"Section 6. Notwithstanding any provision of law or decree to the contrary and for the
purpose of expropriating this property pegged at the market value determined by the City
Assessor pursuant to Presidential Decree No. 76, as amended, particularly by Presidential
Decree No. 1533 which is in force and in effect at the time of the issuance of this decree. In
assessing the market value, the City Assessor shall consider existing conditions in the area
notably, that no improvement has been undertaken on the land and that the land is squatted
upon by resident families which should considerably depress the expropriation cost. Subject to
the foregoing, the just compensation for the above property should not exceed a maximum of
SEVENTEEN MILLION PESOS (P17,000,000.00) which shall be payable to the owners within a
period of five (5) years in five (5) equal installments."
Presidential Decree No. 1670, on the other hand, provides:
"Section 1. The real property along the Estero de SunogApog in Tondo, Manila formerly
consisting of Lots Nos. 55-A, 55-B and 55-C, Block 2918 of the subdivision plan Psd-11746,
covered by TCT Nos. 49286, 49287 and 49288, respectively, of the Registry of Deeds of
Manila, and formerly owned by the Manotok Realty, Inc., with an area of 72,428.6 square
meters, more or less, is hereby declared expropriated. The National Housing Authority
hereinafter referred to as the 'Authority' is designated administrator of the National
Government with authority to immediately take possession, control and disposition, with the
power of demolition of the expropriated properties and their improvements and shall evolve
and implement a comprehensive development plan for the condemned properties."
x x x      x x x      x x x
"Section 6. Notwithstanding any provision of law or decree to the contrary and for the
purpose of expropriating this property pegged at the market value determined by the City
Assessor pursuant to Presidential Decree No. 76, as amended, particularly by Presidential
Decree No. 1533 which is in force and in effect at the time of the issuance of this decree. In
assessing the market value, the City Assessor shall consider existing conditions in the area
notably, that no improvement has been undertaken on the land and that the land is squatted
upon by resident families which should considerably depress the expropriation cost. Subject to
the foregoing, the just compensation for the above property should not exceed a maximum of
EIGHT MILLION PESOS (P8,000,000.00), which shall be payable to the owners within a period
of five (5) years in five equal installment/'
On April 4, 1980, the National Housing Authority, through its general-manager, wrote the
Register of Deeds of Manila, furnishing it with a certified copy of P.D. Nos. 1669 and 1670 for
registration, with the request that the certificates of title covering the properties in question be
cancelled and new certificates of title be issued in the name of the Republic of the Philippines.
However, the Register of Deeds in her letter to NHA's general-manager, requested the
submission of the owner's copy of the certificates of title of the properties in question to
enable her to implement the aforementioned decrees.
Subsequently, petitioner Elisa R. Manotok, one of the owners of the properties to be
expropriated, received from the NHA a letter informing her that the latter had deposited, on
July 16, 1980, with the Philippine National Bank the total amount of P5,000,000.00 which
included the amount of P3,400,000.00 representing the first annual installment for the
Tambunting Estate pursuant to P.D. No. 1669; and another P5,000,000.00 which also included
the amount of P1,600,000.00 representing the first annual installment for the Sunog-Apog
area under P.D. No. 1670. The petitioner was also informed that she was free to withdraw her
share in the properties upon surrender by her of the titles pertaining to said properties and
that if petitioner failed to avail herself of the said offer, the NHA would be constrained to take
the necessary legal steps to implement the decrees.
On August 19, 1980, petitioner Elisa R. Manotok wrote a letter to the NHA alleging, inter
alia, that the amounts of compensation for the expropriation of the properties of the
petitioners as fixed in the decrees do not constitute the "just compensation" envisioned in the
Constitution. She expressed veritable doubts about the constitutionality of the said decrees
and informed the NHA that she did not believe that she was obliged to withdraw the amount
of P5,000,000.00 or surrender her titles over the properties.
In the meantime, some officials of the NHA circulated instructions to the tenants-
occupants of the properties in dispute not to pay their rentals to the petitioners for their lease-
occupancy of the properties in view of the passage of P.D. Nos. 1669 and 1670. Hence, the
owners of the Tambunting Estate filed a petition to declare P.D. No. 1669 unconstitutional.
The owners of the Sunog-Apog area also filed a similar petition attacking the constitutionality
of P.D. No. 1670.
On September 27, 1982, the lessees of the Tambunting Estate and the Sunog-Apog area
filed a motion for leave to intervene together with their petition for intervention alleging that
they are themselves owners of the buildings and houses built on the properties to be
expropriated and as such, they are real parties-in-interest to the present petitions.
The petitioners maintain that the Presidential Decrees providing for the direct expropriation
of the properties in question violate their constitutional right to due process and equal
protection of the law because by the mere passage of the said decrees their properties were
automatically expropriated and they were immediately deprived of the ownership and
possession thereof without being given the chance to oppose such expropriation or to contest
the just compensation to which they are entitled.
 The petitioners argue that the government must first have filed a complaint with the We start with fundamentals.
proper court under Rule 67 of the Revised Rules of Court in order to fulfill the requirements of
due process. They contend that the determination of just compensation should not have been The power of eminent domain is inherent in every state and the provisions in the
vested solely with the City Assessor and that a maximum or fixed amount of compensation Constitution pertaining to such power only serve to limit its exercise in order to protect the
should not have been imposed by the said decrees. Petitioners likewise state that by providing individual against whose property the power is sought to be enforced. We pointed out the
for the maximum amount of just compensation and by directing the City Assessor to take into constitutional limitations in the case of Republic v. Juan (92 SCRA 26, 40):
consideration the alleged existing conditions of the properties in question, namely: that no
"improvement has been undertaken on the land and that the land is squatted upon by
'To begin with, it must be emphasized that plaintiff-appellee in this instant case is the Republic
resident families which should considerably depress the expropriation costs," the City Assessor
of the Philippines which is exercising its right of eminent domain inherent in it as a body
is forced to accept, as actual and existing conditions of the property, the foregoing statements
sovereign. In the exercise of its sovereign right the State is not subject to any limitation other
in the decrees when in fact the SunogApog area has been subdivided into subdivision lots and
than those imposed by the Constitution which are: first, the taking must be for a public use;
leased to the occupants thereof under contracts of lease, making them lessees and not
secondly, the payment of just compensation must be made; and thirdly, due process must be
squatters as assumed by Presidential Decree No. 1670. Moreover, each subdivision lot is
observed in the taking. x x x"
surrounded by adobe walls constructed by the particular owner of the property; the houses
were required to have septic tanks by the City Hall and the owners themselves; there is a
drainage system; and there are adequate water f acilities. The challenged decrees are uniquely unfair in the procedures adopted and the powers given
to the respondent NHA.
As far as the Tambunting Estate is concerned, the petitioners maintain that aside from the
residential houses in the area, there are buildings and structures of strong materials on the The Tambunting subdivision is summarily proclaimed a blighted area and directly
lots fronting Rizal Avenue Extension, most of which are leased to proprietors of business expropriated by decree without the slightest semblance of a hearing or any proceeding
establishments under long term contracts of lease which use the same for their furniture whatsoever. The expropriation is instant and automatic to take effect immediately upon the
business from which they secure substantial income. signing of the decree. No deposit before taking is required under the decree. The
P3,400,000.00 appropriated from the general fund is not a deposit but constitutes an
installment payment for the property, the maximum price of which is fixed so as not to exceed
The Government as represented by the Solicitor-General and the NHA, on the other hand,
P17,000,000.00. There is no provision for any interests to be paid on the unpaid installments
contends that the power of eminent domain is inherent in the State and when the legislature
spread out over a period of five years. Not only are the owners given absolutely no
itself or the President through his law-making prerogatives exercises this power, the public use
opportunity to contest the expropriation, plead their side, or question the amount of payments
and public necessity of the expropriation, and the fixing of the just compensation become
fixed by decree, but the decisions, rulings, orders, or resolutions of the NHA are expressly
political in nature, and the courts must respect the decision of the law-making body, unless
declared as beyond the reach of judicial review. An appeal may be made to the Office of the
the legislative decision is clearly and evidently arbitrary, unreasonable, and devoid of logic and
President but the courts are completely enjoined from any inquiry or participation whatsoever
reason; and that all that is required is that just compensation be determined with due process
in the expropriation of the subdivision or its incidents.
of law which does not necessarily entail judicial process.

In some decisions promulgated before the February, 1986 political upheaval, this Court
The public respondents, further argue that since the Constitution lays down no procedure
presumed the validity of the beautiful "whereases" in presidential decrees governing
by which the authority to expropriate may be carried into effect, Rule 67 of the Revised Rules
expropriations and legitimated takings of private property which, in normal times, would have
of Court which is invoked by the petitioners may be said to have been superseded by the
been constitutionally suspect. There were then the avowed twin purposes of martial law to
challenged decrees insofar as they are applicable to the properties in question and, therefore,
first quell the Communist rebellion and second to reform society. Thus, in Haguisan v.
there is no need to follow the said rule for due process to be observed. Moreover, the public
Emilia (131 SCRA 517) the Court sustained the contention that prior hearing is no longer
respondents maintain that it cannot be fairly said that the petitioners' valuations were ignored
necessary under P.D. No. 42 in ascertaining the value of the property to be expropriated and
in fixing the ceiling amount of the properties in question because the only reason why the
before the government may take possession. There was a disregard in the decree for Section
determination appeared unilateral was because said petitioners did not actually state any
2 of Rule 67 which requires the court having jurisdiction over the proceedings to promptly
valuation in their sworn declaration of true market value of their respective properties, and as
ascertain and fix the provisional value of the property for purposes of the initial taking or entry
far as payment in installments is concerned, the same can be justified by the fact that the
by the Government into the premises. In National Housing Authority v. Reyes (123 SCRA 245)
properties in question are only two of the four hundred and fifteen (415) slums and blighted
the Court upheld the decrees which state that the basis for just compensation shall be the
areas in Metro Manila and two of the two hundred and fifty one (251) sites for ungrading
market value declared by the owner for tax purposes or such market value as determined by
under the ZIP and that to immediately acquire and upgrade all those sites would obviously
the government assessor, whichever is lower.
entail millions and millions of pesos. The financial constraints, therefore, require a system of
payment of just compensation. Thus, the respondent states that the payment of just
compensation in installments did not arise out of ill will or the desire to discriminate. Subsequent developments have shown that a disregard for basic liberties and the shortcut
methods embodied in the decrees on expropriation do not achieve the desired results. Far
from disappearing, squatter colonies and blighted areas have multiplied and proliferated. It
appears that constitutionally suspect methods or authoritarian procedures cannot be the basis
for social justice. A program to alleviate problems of the urban poor which is well studied,
adequately funded, genuinely sincere, and more solidly grounded on basic rights and
democratic procedures is needed.
We re-examine the decisions validating expropriations under martial law and apply
established principles of justice and fairness which have been with us since the advent of
constitutional government. We return to older and more sound precedents.
The due process clause cannot be rendered nugatory everytime a specific decree or law
orders the expropriation of somebody's property and provides its own peculiar manner of
taking the same. Neither should the courts adopt a hands-off policy just because the public
use has been ordained as existing by the decree or the just compensation has been fixed and
determined bef orehand by a statute.
The case of Dohany v. Rogers, (74 L.ed. 904,912, 281, U.S. 362-370) underscores the
extent by which the due process clause guarantees protection from arbitrary exercise of the
power of eminent domain.
"The due process clause does not guarantee to the citizen of a state any particular form or
method of state procedure. Under it he may neither claim a right to trial by jury nor a right of
appeal. Its requirements are satisfied if he has reasonable opportunity to be heard and to
present his claim or defense, due regard being had to the nature of the proceeding and the
character of the rights which may be affected by it. Reetz v. Michigan, 188 U.S. 505, 508, 47
L. ed. 563, 566, 23 Sup. Ct. Rep. 390; Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 70 L. ed.
818, 46 Sup. Ct. Rep. 384; Bauman v. Ross, 167 U.S. 548, 593, 42 L. ed. 270, 289, 17 Sup.
Ct. Rep. 966; A. Backus Jr. & Sons v. Fort Street Union Depot Co. 169 U.S. 569, 42 L. ed. 859,
18 Sup. Ct. Rep. 445."
In other words, although due process does not always necessarily demand that a proceeding
be had before a court of law, it still mandates some form of proceeding wherein notice and
reasonable opportunity to be heard are given to the owner to protect his property rights. We
agree with the public respondents that there are exceptional situations when, in the exercise
of the power of eminent domain, the requirement of due process may not necessarily entail
judicial process. But where it is alleged that in the taking of a person's property, his right to
due process of law has been violated, the courts will have to step in and probe into such an
alleged violation. Thus, certain portions of the decision in De Knecht v. Bautista, (100 SCRA
660, 666-667) state:
'There is no question as to the right of the Republic of the Philippines to take private property
for public use upon the payment of just compensation. Section 2, Article IV of the Constitution
of the Philippines provides: 'Private property shall not be taken for public use without just
compensation.'
"It is recognized, however, that the government may not capriciously or arbitrarily choose
what private property should be taken. In J.M. Tuazon & Co., Inc. v. Land Tenure
Administration, 31 SCRA 413, 433, the Supreme Court said:
x x x      x x x      x x x
"It is obvious then that a land-owner is covered by the mantle of protection due process
affords. It is a mandate of reason. It frowns on arbitrariness, it is the antithesis of any
governmental act that smacks of whim or caprice. It negates state power to act in an
oppressive manner. It is, as had been stressed so often, the embodiment of the sporting idea
of fair play. In that sense, it stands as a guaranty of justice. That is the standard that must be
met by any governmental agency in the exercise of whatever competence is entrusted to it. As
was so emphatically stressed by the present Chief Justice, 'Acts of Congress, as well as those
of the Executive, can deny due process only under pain of nullity, x x x.'
In the same case the Supreme Court concluded:
"With due recognition then of the power of Congress to designate the particular property to be
taken and how much thereof may be condemned in the exercise of the power of
expropriation, it is still a judicial question whether in the exercise of such competence, the
party adversely affected is the victim of partiality and prejudice. That the equal protection
clause will not allow." (p. 436)"
The basis for the exercise of the power of eminent domain is necessity. This Court stated
in City of Manila v. Chinese Community of Manila (40 Phil. 349) that "(t)he very foundation of
the right to exercise eminent domain is a genuine necessity and that necessity must be of a
public character."
In City of Manila v. Arellano Law Colleges (85 Phil. 663), we reiterated that a necessity
must exist for the taking of private property for the proposed uses and purposes but accepted
the fact that modern decisions do not call for absolute necessity. It is enough if the
condemnor can show a reasonable or practical necessity, which of course, varies with the time
and peculiar circumstances of each case.
In the instant petitions, there is no showing whatsoever as to why the properties involved
were singled out for expropriation through decrees or what necessity impelled the particular
choices or selections. In expropriations through legislation, there are, at least, debates in
Congress open to the public, scrutiny by individual members of the legislature, and very often,
public hearings before the statute is enacted. Congressional records can be examined. In
these petitions, the decrees show no reasons whatsoever for the choice of the properties as
housing projects. The anonymous adviser who drafted the decrees for the President's
signature cannot be questioned as to any possible error or partiality, act of vengeance, or
other personal motivations which may have led him to propose the direct expropriation with its
onerous provisions.
The Tambunting estate or at least the western half of the subdivision fronting Rizal Avenue
Extension is valuable commercial property. It is located at the junction where three main city
streets converge—Rizal Avenue from downtown Manila, Jose Abad Santos Street from
Binondo, and Aurora Boulevard leading to Retiro Street and other points in Quezon City. The
Libiran Furniture Company, alone, which fronts the entrance to Jose Abad Santos Street is
clearly a multi-million peso enterprise. It is a foregone conclusion that the favored squatters
allowed to buy these choice lots would lose no time, once it is possible to do so, to either
lease out or sell their lots to wealthy merchants even as they seek other places where they
can set up new squatter colonies. The public use and social justice ends stated in the whereas
clauses of P.D. 1669 and P.D. 1670 would not be served thereby.
The provision of P.D. 1669 which allows NHA, at its sole option, to put portions of the
expropriated area to commercial use in order to defray the development costs of its housing
projects cannot stand constitutional scrutiny. The Government, for instance, cannot
expropriate the flourishing Makati commercial area in order to earn money that would finance
housing projects all over the country. The leading case of Guido v. Rural Progress
Administration (84 Phil. 847) may have been modified in some ways by the provisions of the
new Constitution on agrarian and urban land reform and on housing. The principle of non-
appropriation of private property for private purposes, however, remains. The legislature,
according to the Guido case, may not take the property of one citizen and transfer it to
another, even for a full compensation, when the public interest is not thereby promoted. The
Government still has to prove that expropriation of commercial properties in order to lease
them out also for commercial purposes would be "public use" under the Constitution.
P.D. No. 1670 suffers from a similar infirmity. There is no showing how the President
arrived at the conclusion that the Sunog-Apog area is a blighted community. The many
pictures submitted as exhibits by the petitioners show a well-developed area subdivided into
residential lots with either middle-income or upper class homes. There are no squatters. The
provisions of the decree on the relocation of qualified squatter families and on the re-blocking
and re-alignment of existing structures to allow the introduction of basic facilities and services
have no basis in fact. The area is well-developed with roads, drainage and sewer facilities,
water connections to the Metropolitan Waterworks and Sewerage System, electric connections
to Manila Electric Company, and telephone connections to the Philippine Long Distance
Telephone Company. There are many squatter colonies in Metro Manila in need of upgrading.
The Government should have attended to them first. There is no showing for a need to
demolish the existing valuable improvements in order to upgrade Sunog-Apog.
After a careful examination of the questioned decrees, we find P.D. Nos. 1669 and 1670 to
be violative of the petitioners' right to due process of law and, therefore, they must fail the
test of constitutionality.
The decrees, do not by themselves, provide for any form of hearing or procedure by which
the petitioners can question the propriety of the expropriation of their properties or the
reasonableness of the just compensation. Having failed to provide for a hearing, the
Government should have filed an expropriation case under Rule 67 of the Revised Rules of
Court but it did not do so. Obviously, it did not deem it necessary because of the enactment of
the questioned decrees which rendered, by their very passage, any questions with regard to
the expropriation of the properties, moot and academic. In effect, the properties, under the
decrees were "automatically expropriated." This became more evident when the NHA wrote
the Register of Deeds and requested her to cancel the certificate of titles of the petitioners,
furnishing said Register of Deeds only with copies of the decrees to support its request.
This is hardly the due process of law which the state is expected to observe when it
exercises the power of eminent domain.
The government states that there is no arbitrary determination of the fair market value of
the property by the government assessors because if the owner is not satisfied with the
assessor's action. he may within sixty (60) days appeal to the
Board of Assessment Appeals of the province or city as the case may be and if said owner is
still unsatisfied, he may appeal further to the Central Board of Assessment Appeals pursuant
to P.D. No. 464. The Government argues that with this procedure, the due process
requirement is fulfilled.
We cannot sustain this argument.
Presidential Decree No. 464, as amended, otherwise known as the Real Property Tax Code,
provides for the procedure on how to contest assessments but does not deal with questions as
to the propriety of the expropriation and the manner of payment of just compensation in the
exercise of the power of eminent domain. We find this wholly unsatisfactory. It cannot in
anyway substitute for the expropriation proceeding under Rule 67 of the Revised Rules of
Court.
Another infirmity from which the questioned decrees suffer is the determination of just
compensation.
Pursuant to P.D. 1533, the basis of the just compensation is the market value of the
property "prior to the recommendation or decision of the appropriate Government Office to
acquire the property." (see also Republic v. Santos, (141 SCRA 30, 35).
In these petitions, a maximum amount of compensation was imposed by the decrees and
these amounts were only a little more than the assessed value of the properties in 1978 when,
according to the government, it decided to acquire said properties.
The fixing of the maximum amounts of compensation and the bases thereof which are the
assessed values of the properties in 1978 deprive the petitioner of the opportunity to prove a
higher value because, the actual or symbolic taking of such properties occurred only in 1980
when the questioned decrees were promulgated.
According to the government, the cut-off year must be 1978 because it was in this year
that the government decided to acquire the properties and in the case of the Tambunting
Estate, the President even made a public announcement that the government shall acquire the
estate for the fire victims.
The decision of the government to acquire a property through eminent domain should be
made known to the property owner through a formal .notice wherein a hearing or a judicial
proceeding is contemplated as provided for in Rule 67 of the Rules of Court. This shall be the
time of reckoning the value of the property for the purpose of just compensation. A television
or news announcement or the mere fact of the property's inclusion in the Zonal Improvement
Program (ZIP) cannot suffice because for the compensation to be just, it must approximate
the value of the property at the time of its taking and the government can be said to have
decided to acquire or take the property only after it has, at the least, commenced a
proceeding, judicial or otherwise, for this purpose.
In the following cases, we have upheld the determination of just compensation and the
rationale behind it either at the time of the actual taking of the government or at the time of
the judgment by the court, whichever came first. Municipality of Daet v. Court of Appeals,  (93
SCRA 503, 506, 519):
"x x x And in the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413,
the Court, speaking thru now Chief Justice Fernando, reiterated the 'well-settled (rule) that
just compensation means the equivalent for the value of the property at the time of its taking.
Anything beyond that is more and anything short of that is less, than just compensation. It
means a fair and full equivalent for the loss sustained, which is the measure of the indemnity,
not whatever gain would accrue to the expropriating entity.' "
x x x      x x x      x x x
"We hold that the decision of the Court of Appeals fixing the market value of the property
to be that obtaining, at least, as of the date of the rendition of the judgment on December
2,1969 as prayed by private respondent, which the Court fixed at P200.00 per square meter is
in conformity with doctrinal rulings hereinabove cited that the value should be fixed as of the
time of the taking of the possession of the property because firstly, at the time judgment was
rendered on December 2, 1969, petitioner had not actually taken possession of the property
sought to be expropriated and secondly, We find the valuation determined by the Court of
Appeals to be just, fair and reasonable."
National Power Corporation v. Court of Appeals, (129 SCRA 665, 673):
x x x      x x x      x x x
"(5) And most importantly, on the issue of just compensation, it is now settled doctrine,
following the leading case of Alfonso v. Pasay City, (106 Phil. 1017 (1960)), that no determine
due compensation for lands appropriated by the Government, the basis should be the price or
value at the time it was taken from the owner and appropriated by the Government.
"The owner of property expropriated by the State is entitled to how much it was worth at
the time of the taking. This has been clarified in Republic v. PNB (1 SCRA 957) thus: 'lt is
apparent from the foregoing that, when plaintiff takes possession before the institution of the
condemnation proceedings, the value should be fixed as of the time of the taking of said
possession, not of filing of the complaint, and that the latter should be the basis for the
determination of the value, when the taking of the property involved coincides with or is
subsequent to, the commencement of the proceedings. Indeed, otherwise, the provision of
Rule 69, section 3, directing that compensation 'be determined as of the date of the filing of
the complaint' would never be operative." (Municipality of La Carlota v. The Spouses Baltazar,
et al., 45 SCRA 235 (1972)).
Furthermore, the so-called "conditions" of the properties should not be determined through a
decree but must be shown in an appropriate proceeding in order to arrive at a just valuation
of the property. In the case of Garcia v. Court of Appeals, (102 SCRA 597, 608) we ruled:
"x x x Hence, in estimating the market value, all the capabilities of the property and all the
uses to which it may be applied or for which it is adapted are to be considered and not merely
the condition it is in at the time and the use to which it is then applied by the owner. All the
facts as to the condition of the property and its surroundings, its improvements and
capabilities may be shown and considered in estimating its value."
In P.D. No. 76, P.D. No. 464, P.D. No. 794, and P.D. No. 1533, the basis for determining just
compensation was fixed at the market value declared by the owner or the market value
determined by the assessor, whichever is lower. P.D.s 1669 and 1670 go further. There is no
mention of any market value declared by the owner. Sections 6 of the two decrees peg just
compensation at the market value determined by the City Assessor. The City Assessor is
warned by the decrees to "consider existing conditions in the area notably, that no
improvement has been undertaken on the land and that the land is squatted upon by resident
families which should considerably depress the expropriation costs."
In other cases involving expropriations under P.D. Nos. 76, 464, 794, and 1533, this Court
has decided to invalidate the mode of fixing just compensation under said decrees.
(See Export Processing Zone Authority v. Hon. Ceferino E. Dulay, et al. G.R. No. 59603) With
more reason should the method in P.D.s 1669 and 1670 be declared infirm.
The market value stated by the city assessor alone cannot substitute for the court's
judgment in expropriation proceedings. It is violative of the due process and the eminent
domain provisions of the Constitution to deny to a property owner the opportunity to prove
that the valuation made by a local assessor is wrong or prejudiced. The statements made in
tax documents by the assessor may serve as one of the factors to be considered but they
cannot exclude or prevail over a court determination made after expert commissioners have
examined the property and all partinent circumstances are taken into account and after the
parties have had the opportunity to fully plead their cases before a competent and unbiased
tribunal. To enjoin this Court by decree from looking into alleged violations of the due process,
equal protection, and eminent domain clauses of the Constitution is impermissible
encroachment on its independence and prerogatives.
The maximum amounts, therefore, which were provided for in the questioned decrees
cannot adequately reflect the value of the property and, in any case, should not be binding on
the property owners for, as stated in the above cases, there are other factors to be taken into
consideration. We, thus, find the questioned decrees to likewise transgress the petitioners'
right to just compensation. Having violated the due process and just compensation
guarantees, P. D. Nos. 1669 and 1670 are unconstitutional and void.
WHEREFORE, the petitions in G.R. No. 55166 and G.R. No. 55167 are hereby GRANTED.
Presidential Decree Numbers 1669 and 1670 which respectively proclaimed the Tambunting
Estate and the Estero de Sunog-Apog area expropriated, are declared unconstitutional and,
therefore, null and void ab initio.
SO ORDERED.
     Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,  the appropriate constitutional protection of nonimpairment; and that in view of the cardinal
Sarmiento and Cortes, JJ., concur.
     Teehankee, C.J., files a separate concurrence.
     Yap, J., on leave. Did not take part in the deliberations.
TEEHANKEE, C.J., concurring:
The judgment of the Court invalidates Presidential Decrees numbered 1669 and 1670 which
unilaterally proclaimed the Tambunting Estate and the Estero de Sunog Apog area as
expropriated without further recourse, for being violative of the due process and eminent
domain provisions of the Constitution in the particulars stated in the opinion ably penned by
Mr. Justice Gutierrez.
This is in line with my concurring and dissenting opinion in the six-to-five decision in J.M.
Tuason & Co., Inc. v. Land Tenure Administration1 wherein the Congress through Republic Act
No. 2616 "authorized the expropriation of the Tatalon Estate" comprising about 109 hectares
in Quezon City for subdivision into small lots and conveyed at cost to individuals.
I concurred with the tenuous majority's ruling there setting aside the lower court's ruling
granting therein petitionerappellee's petition to prohibit respondents-appellees from instituting
proceedings for expropriation of the "Tatalon Estate" as specifically authorized by R.A. 2616,
with the result that the expropriation proceedings could then be properly filed but subject to
such proper and valid objections and defenses to the action as petitioner-owner may raise.
I dissented, however, from the majority ruling, insofar as it held that the constitutional
power of Congress for the expropriation of lands is well-nigh all embracing and forecloses the
courts from inquiring into the necessity for the taking of the property. I noted that "this is the
first case where Congress has singled out a particular property for condemnation under the
constitutional power conferred upon it. Does this square with the due process and equal
protection clauses of the Constitution? Is the explanatory note of the bill later enacted as
Republic Act 2616, without any evidence as to a hearing with the affected parties having been
given the opportunity to be heard, and citing merely the population increase of Quezon City
and the land-for-the-landless program sufficient compliance with these basic constitutional
guarantees? Rather, does not the need for a more serious scrutiny as to the power of
Congress to single out a particular piece of property for expropriation, acknowledged in the
main opinion, call for judicial scrutiny, with all the acts in, as to the need for the expropriation
for full opportunity to dispute the legislative appraisal of the matter?"2
I added that there were prejudicial questions raised which could only be threshed out in
trial court proceedings, (and not in the special civil action filed with the Court to set aside the
trial court's declaring of unconstitutionality of the questioned Expropriation Act), viz., with
therein petitioner maintaining that only 11.68% or less than 39 hectares of its Sta. Mesa
Heights Subdivision (of which the "Tatalon Estate" formed part) remained unsold; that existing
contractual rights acquired by vendors and purchasers of subdivided lots should be accorded
principle of eminent domain for payment of just compensation of the market value of the land
"respondents may well consider that the objectives of the Act may be accomplished more
expeditiously by a direct purchase of the available unsold lots for resale at cost to the
remaining bona fide occupants in accordance with the Act's provisions or by extending
financial assistance to enable them to purchase directly the unsold lots from petitioner. I do
not see anything to be gained by respondents from the institution of expropriation
proceedings, when petitioner-owner is actually selling the property in subdivided lots."3
The judgment at bar now clearly overturns the majority ruling in Tuason that "the power
of Congress to designate the particular property to be taken and how much thereof may be
condemned in the exercise of the power of "expropriation" must be duly recognized, leaving
only as' "a judicial question whether in the exercise of such competence, the party adversely
affected is the victim of partiality and prejudice. That the equal protection clause will not
allow."4 The Court now clearly rules that such singling out of properties to be expropriated by
Presidential Decree as in the case at bar, or by act of the legislature as in Tuason, does not
foreclose judicial scrutiny and determination as to whether such expropriation by legislative
act transgresses the due process and equal protection,5 and just compensation6 guarantees
of the Constitution. As we hold now expressly in consonance with my abovequoted separate
opinion in Tuason: "To enjoin this Court by decree from looking into alleged violations of the
due process, equal protection, and eminent domain clauses of the Constitution is
impermissible encroachment on its independence and prerogatives."7 As in all eminent domain
proceedings, the State may not capriciously or arbitrarily single out specific property for
condemnation and must show the necessity of the taking for public use.
Petitions granted.
———o0o———
 G.R. No. 156273. August 9, 2005.* operations. And, indeed, these landowners who chose to cede their properties were fortunate
to have a stipulation in their contract of sale vouching for their right of repurchase. Meanwhile,
the landowners who found it burdensomely difficult to part with their cherished lands
HEIRS OF TIMOTEO MORENO and MARIA ROTEA, namely, ESPERANZA R. EDJEC,
underwent the costly expropriation proceedings which lasted for a number of years.
BERNARDA R. SUELA, RUBY C. ROTEA, BERNARDA R. ROTEA, ELIA R. VDA. DE
Inevitably, justice and equity dictates the reconveyance of the expropriated lots to their
LIMBAGA, VIRGINIA R. ARBON, ROSALINDA R. ARQUISOLA, CORAZON ROTEA, FE
previous owners. One must never fail to overlook the reality that the power to condemn
R. EBORA, CARIDAD ROTEA, ANGELES VDA. DE RENACIA, JORGE ROTEA, MARIA
property is an awesome power of the State and that to compel a citizen to forcibly surrender
LUISA ROTEA-VILLEGAS, ALFREDO R. ROTEA, represented by his heirs, namely,
his precious property to the enormous governmental power is too much a sacrifice which
LIZBETH ROTEA and ELEPETH ROTEA; LUIS ROTEA, represented by his heir
deserves more consideration than those landowners, who, from the very beginning voluntarily
JENNIFER ROTEA; and ROLANDO R. ROTEA, represented by his heir ROLANDO R.
relinquished their ownership.
ROTEA, JR., petitioners, vs. MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY,
respondent.
Same; When the State reconveys land, it should not profit from sudden appreciation in
land.—We now come to the discussion of the amount of repurchase price. The respondent
Eminent Domain; The government’s taking of private property, and then transferring it
maintains that the sum to be paid by the petitioners for Lot Nos. 916 and 920 should be their
to private persons under the guise of public use or purpose is the despotism found in the
prevailing market price, and not the expropriation price which would be grossly unfair
immense power of eminent domain.—The predominant precept is that upon abandonment of
considering that the petitioners were paid just compensation and the lots are now millions of
real property condemned for public purpose, the party who originally condemned the property
pesos in value. Our stand on the amount of repurchase price remains unperturbed. When the
recovers control of the land if the condemning party continues to use the property for public
State reconveys land, it should not profit from sudden appreciations in land values. Any
purpose; however, if the condemning authority ceases to use the property for a public
increase or decrease in market value due to the proposed improvement may not be
purpose, property reverts to the owner in fee simple. The government’s taking of private
considered in determining the market value. Thus, reconveyance to the original owner shall be
property, and then transferring it to private persons under the guise of public use or purpose
for whatever amount he was paid by the government, plus legal interest, whether or not the
is the despotism found in the immense power of eminent domain. Moreover, the direct and
consideration was based on the land’s highest and best use when the sale to the State
unconstitutional state’s power to oblige a landowner to renounce his productive and invaluable
occurred.
possession to another citizen, who will use it predominantly for his own private gain, is
offensive to our laws.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
Same; Judgments; Dispositive Portions; A reading of the Court’s judgment must not be
confined to the dispositive portion alone—rather, it should be meaningfully construed in The facts are stated in the resolution of the Court.
unanimity with the ratio decidendi thereof to grasp the true intent and meaning of a decision .
—We do not subscribe to the respondent’s contention that since the possibility of the Lahug      Lawrence L. Fernandez & Associates for petitioners.
Airport’s closure was actually considered by the trial court, a stipulation on reversion or
repurchase was so material that it should not have been discounted by the court a quo in its
decision in Civil Case No. R-1881, if, in fact, there was one. We find it proper to cite, once
more, this Court’s ruling that the fallo of the decision in Civil Case No. R-1881 must be read in
reference to the other portions of the decision in which it forms a part. A reading of the      The Solicitor General for respondent.
Court’s judgment must not be confined to the dispositive portion alone; rather, it should be
meaningfully construed in unanimity with the ratio decidendi thereof to grasp the true intent RESOLUTION
and meaning of a decision.
CALLEJO, SR., J.:
Same; One must never fail to overlook the reality that the power to condemn property is
an awesome power of the State and that to compel a citizen to forcibly surrender his precious
property to the enormous governmental power is too much a sacrifice which deserves more This is a Motion for Reconsideration dated November 10, 2003 filed by respondent Mactan-
consideration than those landowners, who, from the very beginning voluntarily relinquished Cebu International Airport Authority (MCIAA), through the Office of the Solicitor General
their ownership.—We agree with the respondent in asserting that Lot Nos. 916 and 920 should (OSG), seeking the reversal of the Decision1 dated October 15, 2003,2 the dispositive portion
not be treated like those lands acquired through negotiated sale with a proviso in their of which reads:
contracts for reconveyance or repurchase. Be that as it may, we however find that there is
historic as well as rational bases for affording the petitioners the right of repurchase. We are “WHEREFORE, the instant Petition for Review is GRANTED. The Decision of the Court of
cognizant of the incontestable fact that some landowners immediately sold their properties Appeals in CA-G.R. CV No. 64456 dated 20 December 2001 and its Resolution of 28 November
upon the assurance that they could repurchase them at the cessation of the Lahug Airport’s 2002, denying reconsideration of the Decision are REVERSED and SET ASIDE.
 The Decision of RTC-Br. 19 of Cebu City dated 12 April 1999 in Civil Case No. CEB 20015
is MODIFIED IN PART by—
. (a)ORDERING respondent Mactan-Cebu International Airport Authority (MCIAA) TO
RECONVEY to petitioner Heirs of Timoteo Moreno and Maria Rotea, namely:
Esperanza R. Edjec, Bernarda R. Suela, Ruby C. Rotea, Bernarda R. Rotea, Elia R.
Vda. de Limbaga, Virginia R. Arbon, Rosalinda R. Arquisola, Corazon Rotea, Fe R.
Ebora, Caridad Rotea, Angeles Vda. de Renacia, Jorge Rotea, Maria Luisa Rotea-
Villegas, Alfredo R. Rotea, represented by his heirs, namely: Lizbeth Rotea and
Elepeth Rotea; Luis Rotea, represented by his heir Jennifer Rotea; and Rolando R.
Rotea, represented by his heir Rolando R. Rotea, Jr., Lot No. 916 with an area of
2,355 square meters and Lot No. 920 consisting of 3,097 square meters in Lahug,
Cebu City, with all the improvements thereon evolving through nature or time, but
excluding those that were introduced by third parties, i.e., DPWH, which shall be
governed by existing contracts and relevant provisions of law;
(b)ORDERING petitioner Heirs of Timoteo Moreno and Maria Rotea TO
PAY respondent MCIAA what the former received as just compensation for the
expropriation of Lot Nos. 916 and 920 in Civil Case No. R-1881, i.e., P7,065.00 for
Lot No. 916 and P9,291.00 for Lot No. 920 with consequential damages by way of
legal interest from 16 November 1947. Petitioners must likewise PAY respondent
MCIAA the necessary expenses that the latter may have incurred in sustaining the
properties and the monetary value of its services in managing the properties to the
extent that petitioners will secure a benefit from such acts. Respondent MCIAA
however may keep whatever income or fruits it may have obtained from the parcels
of land, in the same way that petitioners need not account for the interests that the
amounts they received as just compensation may have earned in the meantime;
(c)ORDERING respondent MCIAA TO CONVEY to petitioners the improvements it
may have built on Lot Nos. 916 and 920, if any, in which case petitioners SHALL
PAY for these improvements at the prevailing free market price, otherwise, if
petitioners do not want to appropriate such improvements, or if respondent does not
choose to sell them, respondent MCIAA SHALL REMOVE these
improvements WITHOUT ANY OBLIGATION on the part of petitioners to pay any
compensation to respondent MCIAA from them;
(d)ORDERING petitioners TO PAY the amount so determined under letter (b) of
this dispositive portion as consideration for the reconveyance of Lot Nos. 916 and
920, as well as the prevailing free market price of the improvements built thereon by
respondent MCIAA, if any and desired to be bought and sold by the parties, in ready
money or cash PAYABLE within a period of three hundred sixty-five (365) days
from the date that the amount under letter (b) above is determined with finality,
unless the parties herein stipulate a different scheme or schedule of payment,
otherwise, after the period of three hundred sixty-five (365) days or the lapse of the
compromise scheme or schedule of payment and the amount so payable is not
settled, the right of repurchase of petitioners and the obligation of respondent
MCIAA to so reconvey Lot Nos. 916 and 920 and/or the improvements shall
be DEEMED FORFEITED and the ownership of those parcels of land shall VEST
ABSOLUTELY upon the respondent MCIAA;
. (e)REMANDING the instant case to RTC-Br. 19 of Cebu City for purposes of
determining the amount of compensation for Lot Nos. 916 and 920 to be paid by
petitioners as mandated in letter (b) hereof, and the value of the prevailing free
market price of the improvements built thereon by respondent MCIAA, if any and
desired to be bought and sold by the parties, and in general, securing the immediate
execution of this Decision under the premises;
. (f)ORDERING petitioners to respect the right of the Department of Public Works
and Highways to its lease contract until the expiration of the lease period; and
. (g)DELETING the award of P60,000.00 for attorney’s fees and P15,000.00 for
litigation expenses against respondent MCIAA and in favor of petitioners.
This Decision is without prejudice to the claim of intervenor one Richard E. Enchuan on his
allegation that he acquired through deeds of assignment the rights of some of herein
petitioners over Lot Nos. 916 and 920.
No costs.
SO ORDERED.”3
A review of the factual milieu of the case reveals that in 1949, the National Airport Corporation
(NAC), as the predecessor of herein respondent MCIAA, sought to acquire Lot No. 916, having
a total area of 2,355 square meters under Transfer Certificate of Title (TCT) No. RT-7543
(106) T-13694, and Lot No. 920 containing an area of 3,097 square meters covered by TCT
No. RT-7544 (107) T-13695 for the proposed expansion of the Lahug Airport. The two parcels
of land located in Lahug, Cebu City were owned by the spouses Timoteo Moreno and Maria
Rotea.4 The spouses refused to sell their properties because the proposed price was
unacceptably way below the market value of the lands at that time. As an incentive for the
other owners to cede their lots adjoining the then existing Lahug Airport, NAC guaranteed
them or their successors-in-interest the right to repurchase their properties for the same price
paid by the government in the event that these properties were no longer used for purposes
of the airport.5 Some landowners executed deeds of conveyance while others who refused to
cede their properties became defendants in an action for expropriation filed by the Republic of
the Philippines before the Court of First Instance (CFI) of Cebu, docketed as Civil Case No. R-
1881.6 Lot Nos. 916 and 920 were among those included in the expropriation case.
In a Decision7 rendered by the trial court on December 29, 1961, Lot Nos. 916 and 920,
along with the other adjoining lands, were condemned for public use after payment of just
compensation.8 The trial court fixed the price at P3.00 per square meter for the two lots and
ordered the payment thereof to the owners in the sum of P7,065.00 for Lot No. 916 and
P9,291.00 for Lot No. 920, with payment of consequential damages by way of legal interest
from November 16, 1947.9 Thereafter, the subject lands were transferred in the name of the
Republic of the Philippines under TCT No. 5869110 for Lot No. 916 and TCT No. 5869211 for
Lot No. 920 and subsequently turned over to MCIAA under Republic Act (Rep. Act) No. 6958 in
1990.12
Subsequently, the Lahug Airport was abandoned and all its functions and operations were
transferred to the Mactan Airport. In two various letters sent on different dates, the heirs of
Timoteo Moreno and Maria Rotea, the petitioners herein, wrote then President Fidel V.
Ramos13 and the MCIAA General Manager,14 requesting for the exercise of their supposed
right to repurchase Lot Nos. 916 and 920 considering that the said lots intended for the
expansion of the Lahug Airport were not utilized. Their written and verbal demands were
ignored by the respondent.
Consequently, the petitioners filed a complaint for reconveyance and damages with the
Regional Trial Court of Cebu City docketed as Civil Case No. CEB-20015, against the
respondent asserting their right to reacquire the subject properties. In the complaint, the
petitioners claimed that assurances were given by the NAC officials regarding the entitlement
of the landowners to repurchase their properties for the same price paid by NAC in the event
that the lots were no longer used for airport purposes.15 The petitioners further added that
the guaranty of right to repurchase was the propelling factor that persuaded the registered
owners to continue with the expropriation proceedings. The same reason was given by the
petitioners for not opposing and appealing the case later on.16
During the pendency of the case, one Richard E. Unchuan filed a Motion for Transfer of
Interest,17 alleging that some of the petitioners had already assigned to him their respective
rights, interests, participation, and ownership over the subject properties. Thereafter, the
Department of Public Works and Highways (DPWH), likewise, sought to intervene alleging that
it is the lessee of Lot No. 920 and would be adversely affected by the outcome of the
litigation.18
At the start of the trial, the petitioners presented two witnesses to support their allegations
in the complaint. The first witness was Esperanza Rotea Edjec, who testified that when she
was just 22 years old, the airport authority representatives called for a meeting with the
landowners affected by the expropriation. The witness was present during the gathering and
attested that the registered owners of the lots were assured of the return of the expropriated
lands should the same be no longer utilized as an airport.19
The next witness was Asterio Uy, a retired government employee of the Civil Aeronautics
Administration (CAA), who attested that in 1957, he was sent as part of the legal team to
Mactan, Cebu City, tasked to acquire certain lots for the extension of the Lahug Airport. He
added that when the negotiations broke down, the legal contingent resorted to expropriation
proceedings. Upon instructions from the central office of CAA in Manila, Atty. Ocampo, the
head of the legal corps which undertook the procurement of the subject lands, gave the
assurance to the landowners that if the airport is transferred to Mactan, the lots will be
returned to their previous owners.20
The respondent, on the other hand, presented on the witness stand Michael M. Bacarisas,
a legal assistant of the MCIAA. The witness testified that as a consequence of the
expropriation proceedings, the TCTs of Lot Nos. 916 and 920 were cancelled and in lieu
thereof, new ones were issued in the name of the Republic of the Philippines in 1962. He
pronounced that the decision in Civil Case No. R-1881 did not expressly impart that the
landowners were guaranteed the reconveyance of the lots to them if the lands expropriated
would not be used for the purpose. On cross-examination, the witness admitted that he had
no personal knowledge of any agreement between the airport officials and the previous
registered owners of the disputed properties. His research likewise revealed that a total of 65
lots were expropriated by the government; 19 lots were the subject of court litigations
concerning their reconveyance; and that out of the 19 lots, 15 lots were already returned to
their former owners. Moreover, Bacarisas alleged that some of the expropriated lots were
recovered by their previous landowners because they were
acquired through negotiated sale wherein the standard contract had an express provision that
should the proposed expansion of the Lahug Airport not materialize, the landowners may
recover their properties.21
On April 12, 1999, the trial court rendered judgment22 in favor of the petitioners, granting
them the right to repurchase the properties at the amount originally paid by the respondent in
Civil Case No. R-1881, including consequential damages. The trial court ruled that the public
purpose for which the lands were expropriated had ceased to exist, therefore, it is but logical
and in the higher interest of substantial justice to give back the right of ownership of the
subject lots to the former owners.
Aggrieved, the respondent appealed the decision to the Court of Appeals (CA). On
December 20, 2001, the CA reversed the trial court’s decision on the premise that the
judgment affirming the state’s right to exercise its power of eminent domain was
unconditional. In maintaining a contrary view, the CA cited Fery v. Municipality of
Cabanatuan,23 which held that when a land has been acquired for public use unconditionally
and in fee simple, the previous owner retains no right in the land and the title obtained will
not, in any way, be impaired. Another case relied upon by the appellate court was Mactan-
Cebu International Airport Authority v. Court of Appeals24 which is allegedly stare decisis to
the case to prevent the exercise of the right of repurchase as the former dealt with a parcel of
land similarly expropriated under Civil Case No. R-1881; hence, the same questions relating to
the same event have already been previously litigated and decided by a competent court.
On February 11, 2002, the petitioners filed a motion for reconsideration before the CA, which
was denied in a Resolution dated November 28, 2002.
Expectedly, the petitioners filed before this Court a petition for review of the decision of
the CA.
In reversing the decision of the CA, the Court ratiocinated that the attendance in the case
at bar of standing admissible evidence validating the claim of the petitioners’ right to
repurchase the expropriated properties took away the instant case from the ambit of Mactan-
Cebu International Airport Authority v. Court of Appeals, but still within the principles
enunciated in the Fery case.25 This Court moreover added:
Mactan-Cebu International Airport Authority is correct in stating that one would not find an
express statement in the Decision in Civil Case No. R-1881 to the effect that “the
[condemned] lot would return to [the landowner] or that [the landowner] had a right to
repurchase the same if the purpose for which it was expropriated is ended or abandoned or if
the property was to be used other than as the Lahug Airport.”  This omission notwithstanding,
and while the inclusion of this pronouncement in the judgment of condemnation would have
been ideal, such precision is not absolutely necessary nor is it fatal to the cause of petitioners
herein. No doubt, the return or repurchase of the condemned properties of petitioners could
be readily justified as the manifest legal effect or consequence of the trial court’s underlying
presumption that “Lahug Airport will continue to be in operation” when it granted the
complaint for eminent domain and the airport discontinued its activities.
The predicament of petitioners involves a constructive trust, one that is akin to the implied
trust referred to in Art. 1454 of the Civil Code, “If an absolute conveyance of property is made
in order to secure the performance of an obligation of the grantor toward the grantee, a trust
by virtue of law is established. If the fulfillment of the obligation is offered by the grantor
when it becomes due, he may demand the reconveyance of the property to him.”  In the case
at bar, petitioners conveyed Lot Nos. 916 and 920 to the government with the latter obliging
itself to use the realties for the expansion of Lahug Airport; failing to keep its bargain, the
government can be compelled by petitioners to reconvey the parcels of land to them,
otherwise, petitioners would be denied the use of their properties upon a state of affairs that
was not conceived nor contemplated when the expropriation was authorized.26
Respondent MCIAA filed a Motion for Reconsideration27 dated November 10, 2003 praying
that the Court’s decision be reconsidered and set aside. In the said motion, the respondent
reiterated its earlier claim that: (a) the decision of the trial court in Civil Case No. R-1881,
which granted to MCIAA the titles to Lot Nos. 916 and 920 in fee simple, has long become
final and executory; (b) this Court’s October 15, 2003 Decision, granting the petitioners’ right
of repurchase, effectively overturns the rulings in Fery v. Municipality of
Cabanatuan,28 MCIAA v. Court of Appeals,29 and Reyes v. National Housing Authority;30 (c)
the petitioners are not entitled to reconveyance or repurchase of the questioned lots after the
closure of the Lahug Airport; (d) Lot Nos. 916 and 920, which were expropriated in Civil Case
No. R-1881, should not be treated like those lots sold through negotiated sale with a
stipulation for reconveyance or repurchase; and (e) granting arguendo that petitioners have a
right to repurchase Lot Nos. 916 and 920, the repurchase price should be the fair market
value of the lands.
Additionally, MCIAA filed a Motion to Resolve the Motion for Reconsideration by the
Honorable Court En Banc dated November 11, 2003, alleging that the present case involves
novel questions of law.
On November 20, 2003, the petitioners filed an Opposition to the respondent’s Motion for
Reconsideration stating that no new arguments have been proffered by the respondent to
warrant the reversal of the Court’s decision.
We remain unpersuaded by the respondent’s assertions. The merits of the case have
already been discussed at length in the challenged decision and to linger further on them
herein would be inordinate. Suffice it to say that the Court considered the rulings in Fery v.
Municipality of Cabanatuan and Mactan-Cebu International Airport Authority v. Court of
Appeals which defined the rights and obligations of landowners, whose properties were
expropriated, “when the public purpose for which the eminent domain was
exercised no longer subsists.”31
The respondent insists that the decision effectively overturned the ruling in the Fery case
which requires that for an expropriation to be conditional, the judgment must clearly spell out
said condition. The respondent is mistaken. We reiterate what we stated in our decision, to
wit:
. . . In Fery, which was cited in the recent case of Reyes v. National Housing Authority, we
declared that the government acquires only such rights in expropriated parcels of land as may
be allowed by the character of its title over the properties—
If x x x land is expropriated for a particular purpose, with the condition that when that
purpose is ended or abandoned the property shall return to its former owner, then, of course,
when the purpose is terminated or abandoned the former owner reacquires the property so
expropriated. If x x x land is expropriated for a public street and the expropriation is granted
upon condition that the city can only use it for a public street, it returns to the former owner,
unless there is some statutory provision to the contrary x x x x If, upon the contrary, however,
the decree of expropriation gives to the entity a fee simple title, then, of course, the land
becomes the absolute property of the expropriator, whether it be the State, a province, or
municipality, and in that case the non-user does not have the effect of defeating the title
acquired by the expropriation proceedings x x x x When land has been acquired for public use
in fee simple, unconditionally, either by the exercise of eminent domain or by purchase, the
former owner retains no rights in the land, and the public use may be abandoned, or the land
may be devoted to a different use, without any impairment of the estate or title acquired, or
any reversion to the former owner x x x x32
It must be pointed out that nothing in the Fery case bespeaks that there should foremost be
an express condition in the dispositive portion of the decision before the condemned
property can be returned to its former owner after the purpose for its taking has been
abandoned or ended. The indisputable certainty in the present case is that there was a prior
promise by the predecessor of the respondent that the expropriated properties may be
recovered by the former owners once the airport is transferred to Mactan, Cebu. In fact, the
witness for the respondent testified that 15 lots were already reconveyed to their previous
owners. Intervenor DPWH, likewise, manifested that Lot No. 920 is the subject of a
memorandum of agreement33 with the respondent’s predecessor-in-interest wherein the
property was leased to DPWH. This belated news further bolsters the fact that the purpose for
which the properties were condemned has been abandoned.
A more pressing discovery unearthed by this Court is that a significant portion of the
subject properties had been purchased by the Cebu Property Ventures, Inc. for the
development of a commercial complex.34 The respondent, in its answer, did not deny this
allegation in the petitioners’ complaint. Section 10, Rule 8 of the Revised Rules of Court
provides:
Specific denial.—A defendant must specify each material allegation of fact the truth of which
he does not admit and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant desires to deny only a part of
an averment, he shall specify so much of it as is true and material and shall deny only the
remainder. Where a defendant is without knowledge or information sufficient to form a belief
as to the truth of a material averment made in the complaint, he shall so state, and this shall
have the effect of a denial.

Section 11 of the same Rule likewise states that “[m]aterial averment in the complaint, . . .
shall be deemed admitted when not specifically denied.” The predominant precept is that upon A: I was a member of the CAA Legal Team.
abandonment of real property condemned for public purpose, the party who originally
condemned the property recovers control of the land if the condemning party continues to use
the property for public purpose; however, if the condemning authority ceases to use the
property for a public purpose, property reverts to the owner in fee simple.35 The Q I see, CAA Legal Team. Can you tell the court who were the members, if you still
government’s taking of private property, and then transferring it to private persons under the : remember, of that team?
guise of public use or purpose is the despotism found in the immense power of eminent
domain.36 Moreover, the direct and unconstitutional state’s power to oblige a landowner to
renounce his productive and invaluable possession to another citizen, who will use it
A: I will mention Atty. Ocampo, Atty. Lansang, Atty. Sarigumba and myself.
predominantly for his own private gain, is offensive to our laws.37

Next, the respondent asseverates that the Court departed from the ruling enunciated
in Mactan-Cebu International Airport Authority v. Court of Appeals.  We are not convinced. Q You stated that you were sent to Cebu as a member of the CAA Legal Team to
Clearly, the respondent’s contention can prevail only if the facts of the present case are : negotiate with the landowners
accurately in point with those in the other case. We recapitulate our rulings that in MCIAA
v.CA, respondent Virginia Chiongbian proffered “inadmissible and inconclusive evidence, while
in the present case we have preponderant proof as found by the trial court of the existence of
the right of repurchase in favor of the petitioners.” No less than Asterio Uy, one of the   for the acquisition of lots for purposes, for airport purposes, you are referring of
members of the CAA Mactan Legal Team, which interceded for the acquisition of the lots for course to the acquisition of lot in Mactan?
the Lahug Airport’s expansion, affirmed that persistent assurances were given to the
landowners to the effect that as soon as the Lahug Airport is abandoned or transferred to
Mactan, the lot owners would be able to reacquire their properties. Unlike in the case
A: Yes, sir.
of MCIAA v. CA, where respondent Chiongbian offered inadmissible evidence for being hearsay
in nature, the petitioners in this case presented a witness whose testimony was based on his
own personal knowledge. Surely, Uy is a credible witness inasmuch as he was even tasked by
the negotiating panel to directly communicate to the landowners the instructions from the CAA   ...
main office that the properties will be returned to the original owners once the Lahug Airport
is transferred to Mactan. Likewise, he cannot be considered as a biased witness as he was a
former employee of the respondent’s predecessor-in-interest and was merely recalling and
informing the court of the events that transpired during the negotiations for the expropriations Q Now what was the purpose of your negotiations also in Lahug, what was the
of the lots. Part of Uy’s testimony is as follows: : purpose of those negotiations?

Atty. Jacinto A: The purpose there was to purchase or buy the property affected by the Lahug
extension.

Q Lahug Airport. In what capacity or what position were you holding at the time
: when you were assigned to Cebu for the purpose of conducting negotiations with Q When you say affected, did you have any specific instructions as to what Lahug
the land owners? : airport would be devoted to? I will reform Your Honor. Since Lahug airport was
already inexistence, why did you still have to negotiate with the adjacent
landowners?
Witness

A: For the Lahug airport expansion.
Q Now, how did you conduct the negotiations, in what manner?
: and meaning of a decision.39
A: We convinced the landowners affected by the expansion to sell their properties
and if they refuse, there is another right of eminent domain of the government to
acquire the properties through expropriation. And with the assurance that these
properties, I am referring to the properties in Lahug, as soon as Lahug airport will
be transferred to Mactan, that will be the time that these properties will be
returned to the landowners at the same price.
Q Why do you say that there was an assurance given, how did you come to know
: about this?
A: The assurance was from the Chief of the team, Atty. Ocampo, through him and
accordingly per instruction from the Central Office in Manila.
Q As a member of the legal team, did you gave [sic] the assurance to the
: landowners or was it Atty. Ocampo?
A: We, because I was made as the spokesman considering that I am a
Boholano who knows the dialect, Cebuano, and my companions were
Tagalogs, they don’t know Cebuano so I participated in the negotiations.
Q In short, you were the one who conducted the negotiations?
:
A: Together with the members of the team, I was there assisting.38
Moreover, we do not subscribe to the respondent’s contention that since the possibility of the
Lahug Airport’s closure was actually considered by the trial court, a stipulation on reversion or
repurchase was so material that it should not have been discounted by the court a quo in its
decision in Civil Case No. R-1881, if, in fact, there was one. We find it proper to cite, once
more, this Court’s ruling that the fallo of the decision in Civil Case No. R-1881 must be read in
reference to the other portions of the decision in which it forms a part. A reading of the
Court’s judgment must not be confined to the dispositive portion alone; rather, it should be
meaningfully construed in unanimity with the ratio decidendi thereof to grasp the true intent
On the other hand, we agree with the respondent in asserting that Lot Nos. 916 and 920
should not be treated like those lands acquired through negotiated sale with a proviso in their
contracts for reconveyance or repurchase. Be that as it may, we however find that there is
historic as well as rational bases for affording the petitioners the right of repurchase. We are
cognizant of the incontestable fact that some landowners immediately sold their properties
upon the assurance that they could repurchase them at the cessation of the Lahug Airport’s
operations. And, indeed, these landowners who chose to cede their properties were fortunate
to have a stipulation in their contract of sale vouching for their right of repurchase. Meanwhile,
the landowners who found it burdensomely difficult to part with their cherished lands
underwent the costly expropriation proceedings which lasted for a number of years.
Inevitably, justice and equity dictates the reconveyance of the expropriated lots to their
previous owners. One must never fail to overlook the reality that the power to condemn
property is an awesome power of the State40 and that to compel a citizen to forcibly
surrender his precious property to the enormous governmental power is too much a sacrifice
which deserves more consideration than those landowners, who, from the very beginning
voluntarily relinquished their ownership.
We now come to the discussion of the amount of repurchase price. The respondent
maintains that the sum to be paid by the petitioners for Lot Nos. 916 and 920 should be their
prevailing market price, and not the expropriation price which would be grossly unfair
considering that the petitioners were paid just compensation and the lots are now millions of
pesos in value. Our stand on the amount of repurchase price remains unperturbed. When the
State reconveys land, it should not profit from sudden appreciations in land values. Any
increase or decrease in market value due to the proposed improvement may not be
considered in determining the market value. Thus, reconveyance to the original owner shall be
for whatever amount he was paid by the government, plus legal interest, whether or not the
consideration was based on the land’s highest and best use when the sale to the State
occurred.41
WHEREFORE, the motion for reconsideration is DENIED.
SO ORDERED.
     Quisumbing (Chairman), Austria-Martinez and Tinga, JJ., concur.
     Corona, J., On Official Leave.
Motion for reconsideration denied.
 Notes.—An expropriation suit is incapable of pecuniary estimation, and falls within the
jurisdiction of the Regional Trial Courts. (Barangay San Roque, Talisay, Cebu vs. Heirs of
Francisco Pastor, 334 SCRA 127 [2000])

The implementation of the Comprehensive Agrarian Reform Law (CARL) is an exercise of

the State’s police power and the power of eminent domain. (Sta. Rosa Realty Development
Corporation vs. Court of Appeals, 367 SCRA 175 [2001])

A mechanism whereby the foreign-owned contractor, disqualified to own land, identifies to

the government the specific surface areas within the FTAA contract area to be acquired for the
mine infrastructure does not call for the exercise of the power of eminent domain—and
determination of just compensation is not an issue—as much as it calls for a qualified party to
acquire the surface rights on behalf of a foreign-owned contractor. (La Bugal-B’laan Tribal
Association, Inc. vs. Ramos, 445 SCRA 1 [2004])

——o0o——
 G.R. No. 106440. January 29, 1996.* purposes, ‘public use’ is one which confers some benefit or advantage to the public; it is not
confined to actual use by public. It is measured in terms of right of public to use proposed
facilities for which condemnation is sought and, as long as public has right of use, whether
ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA MANOSCA,
exercised by one or many members of public, a ‘public advantage’ or ‘public benefit’ accrues
petitioners, vs. HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding
sufficient to constitute a public use. Montana Power Co. vs. Bokma, Mont. 457 P.2d 769, 772,
Judge, RTC-Pasig, Metro Manila, Branch 168, HON. GRADUACION A. REYES
773.”
CLARAVAL, Presiding Judge, RTC-Pasig, Metro Manila, Branch 71, and REPUBLIC
OF THE PHILIPPINES, respondents.

Same; Same; Same; Same; The validity of the exercise of the power of eminent domain

for traditional purposes is beyond question—it is not at all to be said, however, that public use
Constitutional Law; Eminent Domain; Words and Phrases; “Eminent Domain,” Explained;
should thereby be restricted to such traditional uses.—The validity of the exercise of the
The constitutional qualification that “private property shall not be taken for public use without
power of eminent domain for traditional purposes is beyond question; it is not at all to be said,
just compensation” is intended to provide a safeguard against possible abuse and so to
however, that public use should thereby be restricted to such traditional uses. The idea that
protect as well the individual against whose property the power is sought to be enforced .—
“public use” is strictly limited to clear cases of “use by the public” has long been discarded.
Eminent domain, also often referred to as expropriation and, with less frequency, as
condemnation, is, like police power and taxation, an inherent power of sovereignty. It need
not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on
the subject are meant more to regulate, rather than to grant, the exercise of the power.
Same; Same; Same; Same; A historical research discloses the meaning of the term
Eminent domain is generally so described as “the highest and most exact idea of property
“public use” to be one of constant growth.—It has been explained as early as Seña v. Manila
remaining in the government” that may be acquired for some public purpose through a
Railroad Co., that: “x x x A historical research discloses the meaning of the term ‘public use’ to
method in the nature of a forced purchase by the State. It is a right to take or reassert
be one of constant growth. As society advances, its demands upon the individual increase and
dominion over property within the state for public use or to meet a public exigency. It is said
each demand is a new use to which the resources of the individual may be devoted. x x x for
to be an essential part of governance even in its most primitive form and thus inseparable
‘whatever is beneficially employed for the community is a public use.’ ”
from sovereignty. The only direct constitutional qualification is that “private property shall not
be taken for public use without just compensation.” This proscription is intended to provide a
safeguard against possible abuse and so to protect as well the individual against whose
property the power is sought to be enforced. Same; Same; Separation of Church and State; Freedom of Religion; An attempt to give
some religious perspective to the case deserves little consideration, for what should be
significant is the principal objective of, not the casual consequences that might follow from,
the exercise of the power.—Petitioners ask: But “(w)hat is the so-called unusual interest that
Same; Same; The power of eminent domain should not now be understood as being
the expropriation of (Felix Manalo’s) birthplace become so vital as to be a public use
confined only to the expropriation of vast tracts of land and landed estates.—The court, in
appropriate for the exercise of the power of eminent domain” when only members of the
Guido, merely passed upon the issue of the extent of the President’s power under
Iglesia ni Cristo would benefit? This attempt to give some religious perspective to the case
Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into smaller
deserves little consideration, for what should be significant is the principal objective of, not the
home lots or farms for resale to bona fide tenants or occupants. It was in this particular
casual consequences that might follow from, the exercise of the power. The purpose in setting
context of the statute that the Court had made the pronouncement. The guidelines in Guido
up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to
were not meant to be preclusive in nature and, most certainly, the power of eminent domain
the culture of the Philippines, rather than to commemorate his founding and leadership of the
should not now be understood as being confined only to the expropriation of vast tracts of
Iglesia ni Cristo.
land and landed estates.

Same; Same; Same; That only a few would actually benefit from the expropriation of

Same; Same; Words and Phrases; “Public Use,” Explained; The term “public use” must
property does not necessarily diminish the essence and character of public use .—The practical
be considered in its general concept of meeting a public need or a public exigency .—The term
reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most
“public use,” not having been otherwise defined by the constitution, must be considered in its
others could well be true but such a peculiar advantage still remains to be merely incidental
general concept of meeting a public need or a public exigency. Black summarizes the
and secondary in nature. Indeed, that only a few would actually benefit from the expropriation
characterization given by various courts to the term; thus: “Public Use. Eminent domain. The
of property does not necessarily diminish the essence and character of public use.
constitutional and statutory basis for taking property by eminent domain. For condemnation
 Same; Same; Just Compensation; Due Process; There is no denial of due process
where the records of the case are replete with pleadings that could have dealt with the
provisional value of the property—what the law prohibits is the lack of opportunity to be
heard.—Petitioners contend that they have been denied due process in the fixing of the
provisional value of their property. Petitioners need merely to be reminded that what the law
prohibits is the lack of opportunity to be heard; contrary to petitioners’ argument, the records
of this case are replete with pleadings that could have dealt, directly or indirectly, with the
provisional value of the property.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Melecio, Virgilio, Emata Law Office for petitioners.
VITUG, J.:
In this appeal, via a petition for review on certiorari, from the decision1 of the Court of
Appeals, dated 15 January 1992, in CA-G.R. SP No. 24969 (entitled “Alejandro Manosca, et al.
v. Hon. Benjamin V. Pelayo, et al.”), this Court is asked to resolve whether or not the “public
use” requirement of Eminent Domain is extant in the attempted expropriation by the Republic
of a 492-square-meter parcel of land so declared by the National Historical Institute (“NHI”) as
a national historical landmark.
The facts of the case are not in dispute.
Petitioners inherited a piece of land located at P. Burgos Street, Calzada, Taguig, Metro
Manila, with an area of about four hundred ninety-two (492) square meters. When the parcel
was ascertained by the NHI to have been the birthsite of Felix Y. Manalo, the founder
of Iglesia Ni Cristo, it passed Resolution No. 1, Series of 1986, pursuant to Section 42 of
Presidential Decree No. 260, declaring the land to be a national historical landmark. The
resolution was, on 06 January 1986, approved by the Minister of Education, Culture and
Sports. Later, the opinion of the Secretary of Justice was asked on the legality of the measure.
In his Opinion No. 133, Series of 1987, the Secretary of Justice replied in the affirmative; he
explained:
“According to your guidelines, national landmarks are places or objects that are associated
with an event, achievement, characteristic, or modification that makes a turning point or stage
in Philippine history. Thus, the birthsite of the founder of the Iglesia ni Cristo, the late Felix Y.
Manalo, who, admittedly, had made contributions to Philippine history and culture has been
declared as a national landmark. It has been held that places invested with unusual historical
interest is a public use for which the power of eminent domain may be authorized x x x.
“In view thereof, it is believed that the National Historical Institute as an agency of the
Government charged with the maintenance and care of national shrines, monuments and
landmarks and the development of historical sites that may be declared as national shrines,
monuments and/or landmarks, may initiate the institution of condemnation proceedings for
the purpose of acquiring the lot in question in accordance with the procedure provided for in
Rule 67 of the Revised Rules of Court. The proceedings should be instituted by the Office of
the Solicitor General in behalf of the Republic.”
Accordingly, on 29 May 1989, the Republic, through the Office of the Solicitor-General,
instituted a complaint for expropriation3 before the Regional Trial Court of Pasig for and in
behalf of the NHI alleging, inter alia, that:
“Pursuant to Section 4 of Presidential Decree No. 260, the National Historical Institute issued
Resolution No. 1, Series of 1986, which was approved on January, 1986 by the then Minister
of Education, Culture and Sports, declaring the above described parcel of land which is the
birthsite of Felix Y. Manalo, founder of the ‘Iglesia ni Cristo,’ as a National Historical Landmark.
The plaintiff perforce needs the land as such national historical landmark which is a public
purpose.”
At the same time, respondent Republic filed an urgent motion for the issuance of an order to
permit it to take immediate possession of the property. The motion was opposed by
petitioners. After a hearing, the trial court issued, on 03 August 1989,4 an order fixing the
provisional market (P54,120.00) and assessed (P16,236.00) values of the property and
authorizing the Republic to take over the property once the required sum would have been
deposited with the Municipal Treasurer of Taguig, Metro Manila.
Petitioners moved to dismiss the complaint on the main thesis that the intended
expropriation was not for a public purpose and, incidentally, that the act would constitute an
application of public funds, directly or indirectly, for the use, benefit, or support of Iglesia ni
Cristo, a religious entity, contrary to the provision of Section 29(2), Article VI, of the 1987
Constitution.5 Petitioners sought, in the meanwhile, a suspension in the implementation of the
03rd August 1989 order of the trial court.
On 15 February 1990, following the filing by respondent Republic of its reply to petitioners’
motion seeking the dismissal of the case, the trial court issued its denial of said motion to
dismiss.6 Five (5) days later, or on 20 February 1990,7 another order was issued by the trial
court, declaring moot and academic the motion for reconsideration and/or suspension of the
order of 03 August 1989 with the rejection of petitioners’ motion to dismiss. Petitioner’s
motion for the reconsideration of the 20th February 1990 order was likewise denied by the
trial court in its 16th April 1991 order.8
Petitioners then lodged a petition for certiorari and prohibition with the Court of Appeals.
In its now disputed 15th January 1992 decision, the appellate court dismissed the petition on
the ground that the remedy of appeal in the ordinary course of law was an adequate remedy
and that the petition itself, in any case, had failed to show any grave abuse of discretion or
lack of jurisdictional competence on the part of the trial court. A motion for reconsideration of
the decision was denied in the 23rd July 1992 resolution of the appellate court.
We begin, in this present recourse of petitioners, with a few known postulates.
Eminent domain, also often referred to as expropriation and, with less frequency, as
condemnation, is, like police power and taxation, an inherent power of sovereignty. It need
not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on
the subject are meant more to regulate, rather than to grant, the exercise of the power.
Eminent domain is generally so described as “the highest and most exact idea of property
remaining in the government” that may be acquired for some public purpose through a
method in the nature of a forced purchase by the State.9 It is a right to take or reassert
dominion over property within the state for public use or to meet a public exigency. It is said
to be an essential part of governance even in its most primitive form and thus inseparable
from sovereignty.10 The only direct constitutional qualification is that “private property shall
not be taken for public use without just compensation.”11 This proscription is intended to
provide a safeguard against possible abuse and so to protect as well the individual against
whose property the power is sought to be enforced.
Petitioners assert that the expropriation has failed to meet the guidelines set by this Court
in the case of Guido v. Rural Progress Administration,12 to wit: (a) the size of the land
expropriated; (b) the large number of people benefited; and, (c) the extent of social and
economic reform.13 Petitioners suggest that we confine the concept of expropriation only to
the following public uses,14 i.e., the—
“x x x taking of property for military posts, roads, streets, sidewalks, bridges, ferries, levees,
wharves, piers, public buildings including schoolhouses, parks, playgrounds, plazas, market
places, artesian wells, water supply and sewerage systems, cemeteries, crematories, and
railroads.”
This view of petitioners is much too limitative and restrictive.
The court, in Guido, merely passed upon the issue of the extent of the President’s power
under Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into
smaller home lots or farms for resale to bona fide tenants or occupants. It was in this
particular context of the statute that the Court had made the pronouncement. The guidelines
in Guido were not meant to be preclusive in nature and, most certainly, the power of eminent
domain should not now be understood as being confined only to the expropriation of vast
tracts of land and landed estates.15
The term “public use,” not having been otherwise defined by the constitution, must be
considered in its general concept of meeting a public need or a public exigency.16 Black
summarizes the characterization given by various courts to the term; thus:
“Public Use. Eminent domain. The constitutional and statutory basis for taking property by
eminent domain. For condemnation purposes, ‘public use’ is one which confers some benefit
or advantage to the public; it is not confined to actual use by public. It is measured in terms of
right of public to use proposed facilities for which condemnation is sought and, as long as
public has right of use, whether exercised by one or many members of public, a ‘public
advantage’ or ‘public benefit’ accrues sufficient to constitute a public use. Montana Power Co.
vs. Bokma, Mont. 457 P.2d 769, 772, 773.
“Public use, in constitutional provisions restricting the exercise of the right to take private
property in virtue of eminent domain, means a use concerning the whole community as
distinguished from particular individuals. But each and every member of society need not be
equally interested in such use, or be personally and directly affected by it; if the object is to
satisfy a great public want or exigency, that is sufficient. Rindge Co. vs. Los Angeles
County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L. Ed. 1186. The term may be said to mean public
usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to
the inhabitants of a small or restricted locality, but must be in common, and not for a
particular individual. The use must be a needful one for the public, which cannot be
surrendered without obvious general loss and inconvenience. A ‘public use’ for which land may
be taken defies absolute definition for it changes with varying conditions of society, new
appliances in the sciences, changing conceptions of scope and functions of government, and
other differing circumstances brought about by an increase in population and new modes of
communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d 579, 586.”17
The validity of the exercise of the power of eminent domain for traditional purposes is beyond
question; it is not at all to be said, however, that public use should thereby be restricted to
such traditional uses. The idea that “public use” is strictly limited to clear cases of “use by the
public” has long been discarded. This Court in Heirs of Juancho Ardona v. Reyes,18 quoting
from Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held:
“We do not sit to determine whether a particular housing project is or is not desirable. The
concept of the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v.
Missouri, 342 U.S. 421, 424, 96 L. Ed. 469, 472, 72 S Ct 405. The values it represents are
spiritual as well as physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as well as healthy, spacious
as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress
and its authorized agencies have made determinations that take into account a wide variety of
values. It is not for us to reappraise them. If those who govern the District of Columbia decide
that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.
“Once the object is within the authority of Congress, the right to realize it through the
exercise of eminent domain is clear. For the power of eminent domain is merely the means to
the end. See Luxton v. North River Bridge Co. 153 U.S. 525, 529, 530, 38 L. ed. 808, 810, 14
S Ct 891; United States v. Gettysburg Electric R. Co. 160 U.S. 668, 679, 40 L. ed. 576, 580, 16
S Ct 427.”
It has been explained as early as Seña v. Manila Railroad Co.,19 that:
“x x x A historical research discloses the meaning of the term ‘public use’ to be one of
constant growth. As society advances, its demands upon the individual increase and each
demand is a new use to which the resources of the individual may be devoted. x x x for All considered, the Court finds the assailed decision to be in accord with law and
‘whatever is beneficially employed for the community is a public use.’ ” jurisprudence.

Chief Justice Enrique M. Fernando states: WHEREFORE, the petition is DENIED. No costs.

“The taking to be valid must be for public use. There was a time when it was felt that a literal SO ORDERED.
meaning should be attached to such a requirement. Whatever project is undertaken must be
for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not
allowable. It is not so any more. As long as the purpose of the taking is public, then the power      Padilla (Chairman), Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
of eminent domain comes into play. As just noted, the constitution in at least two cases, to
remove any doubt, determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The other is the transfer, through Petition denied.
the exercise of this power, of utilities and other private enterprise to the government. It is
accurate to state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirements of public use.”20 Notes.—Modernly, there has been a shift from the literal to a broader interpretation of
“public purpose” or “public use” for which the power of eminent domain may be exercised.
The old concept was that the condemned property must actually be used by the general public
Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure
(e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the
Administration,21 has viewed the Constitution a dynamic instrument and one that “is not to be
constitutional requirement of “public use.” Under the new concept, “public use” means public
construed narrowly or pedantically” so as to enable it “to meet adequately whatever problems
advantage, convenience or benefit, which tends to contribute to the general welfare and the
the future has in store.” Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly
prosperity of the whole community, like a resort complex for tourists or housing project.
observed that what, in fact, has ultimately emerged is a concept of public use which is just as
(Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173 [1993])
broad as “public welfare.”22

Petitioners ask: But “(w)hat is the so-called unusual interest that the expropriation of (Felix
Manalo’s) birthplace become so vital as to be a public use appropriate for the exercise of the
power of eminent domain” when only members of the Iglesia ni Cristo would benefit? This
attempt to give some religious perspective to the case deserves little consideration, for what
should be significant is the principal objective of, not the casual consequences that might
follow from, the exercise of the power. The purpose in setting up the marker is essentially to
recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines,
rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical
reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most
others could well be true but such a peculiar advantage still remains to be merely incidental
and secondary in nature. Indeed, that only a few would actually benefit from the expropriation
of property does not necessarily diminish the essence and character of public use.23
The expiration of the Iron and Steel Authority’s statutory term did not by itself require or
justify the dismissal of the eminent domain proceedings earlier instituted. Also, no new
legislative act is necessary should the Republic decide, upon being substituted for ISA, in fact
to continue to prosecute the expropriation proceedings—the legislative authority, a long time
ago, enacted a continuing or standing delegation of authority to the President of the
Philippines to exercise, or cause the exercise of, the power of eminent domain on behalf of the
Government. (Iron and Steel Authority vs. Court of Appeals, 249 SCRA 538, [1995])
——o0o——

Petitioners contend that they have been denied due process in the fixing of the provisional
value of their property. Petitioners need merely to be reminded that what the law prohibits is
the lack of opportunity to be heard;24 contrary to petitioners’ argument, the records of this
case are replete with pleadings25 that could have dealt, directly or indirectly, with the
provisional value of the property.

Petitioners, finally, would fault respondent appellate court in sustaining the trial court’s
order which considered inapplicable the case of Noble v. City of Manila.26 Both courts held
correctly. The Republic was not a party to the alleged contract of exchange between
the Iglesia ni Cristo and petitioners which (the contracting parties) alone, not the Republic,
could properly be bound.
 [No. L-3708, May 18, 1953]
ROYAL L. RUTTER, plaintiff and appellant, vs.  PLACIDO J. ESTEBAN, defendant and
appellee.
1.CONSTITUTIONAL LAW; OBLIGATIONS AND CONTRACTS; MORATORIUM; LIMITATIONS UPON THE POLICE
POWER  OF THE STATE.—,A1though conceding that the obligations of the mortgage contract
were impaired, the court decided that what it thus described as an impairment was,
notwithstanding the contract clause of the Federal. Constitution, within the police power of
the State as that power was called into exercise by the public economic emergency which
the legislature had found to exist." (Home Building & Loan Association vs. Bleisdell, 290 U.
S., 398.) But the ruling in the Bleisdell case has its limitations which should not be
overlooked in the determination of the extent to be given to the legislation which attempts
to encroach upon the enforcement of a monetary obligation; if these bounds are
transgressed, there is no room for the exercise of the power, for the constitutional
inhibition against the impairment of contracts would assert itself. Here are instances by
which these bounds may be transgressed. (1) The impairment should only: refer to the
remedy and not to a substantive right (Worthen Co. vs. Kavanaugh, 79 L. ed., 1298, 1301-
1303; Bronson vs.  Kinsie, 1 How., 311, 317, 46 Har. Law Review, p. 1070) ; (2) The
protective power of tho state, the police power, may only be invoked and justified by an
emergency, temporary in nature, and can only be exercised upon reasonable conditions in
order that it may not infringe the constitutional provision against impairment of contracts
(First Trust Co. of Lincoln vs. Smith, 27 N. W., pp. 762, 769) ; (3) "A different situation is
presented when 'extensions are so piled up as to make the remedy A shadow . ."
(Worthen vs. Kavanaugh, 295 U. S., 56, 62) ; (4) The decision in the Bleisdell case is
predicated on the ground that the laws altering existing contracts will constitute an
impairment of the contract clause of the Constitution only if they are unreasonable in the
light of the circumstances occasioning their enactment (47 Harvard Law Review, p. 660).
2.ID. ; ID.; ID.; WHEN EXTENSIONS OF PERIOD OF MORATORIUM BECOME UNREASONABLE .—The
obligations covered by Republic Act No. 342 and Executive Orders Nos. 25 and 32 had
been pending since 1945 and would continue to be unenforceable during the eight-year
period granted to prewar debtors to afford them an opportunity to rehabilitate themselves,
which in plain language means that the creditors would have to observe a vigil of at least
twelve years before they could effect a liquidation of their investment dating as far back as
1941. This period seems unreasonable, if not oppressive. While the purpose of Congress is
plausible, and should be commended, the relief accorded works injustice to creditors who
are practically left at the mercy of the debtors. Their hope to effect collection becomes
extremely remote, more so if the credits .are unsecured. And the injustice is more patent
when, under the law, the debtor is not even required to pay interest during the operation
of the relief. There are at least three cases where the Supreme Court of the United States
declared the moratorium laws violative of the contract clause of the Constitution because
the period granted to debtors as a relief was found unwarranted by the contemplated
emergency (Worthen Co. vs. Thomas, 292 U. S., 426-435, 78 L. ed., 1344, 1347; Worthen
vs. Kavanaugh, 295 U. S., 56; Louisville Joint Stock Land Bank vs.  Radford, 295 U. S., 555,
79 L. ed., 1593).  cannot be enforced until after the lapse of eight years from the settlement of his claim by the
3.ID.; ID.; ID.; REPUBLIC ACT NO. 342 AND EXECUTIVE ORDERS NOS. 25 AND 32 ARE UNREASONABLE.—
The continued operation and enforcement of Republic Act No. 342 at the present time is
unreasonable and oppressive, and should not be prolonged a minute longer, and,
therefore, the same is declared null and void and without effect. And what is said here
with respect to said Act holds true as regards Executive Orders Nos. 25 and 32, perhaps
with greater force and reason as to the latter, considering that said Orders contain no
limitation whatsoever in point of time as regards the suspension of the enforcement and
effectivity of monetary obligations. And there is need to make this pronouncement in view
of the revival clause embodied in said Act if and when it is declared unconstitutional or
invalid.
APPEAL from a judgment of the Court of First Instance of Manila. Castelo, J.
The facts are stated in the opinion of the Court.
Susano A. Velasquez  for appellant.
Teodoro R. Dominguez  for appellee.
BAUTISTA ANGELO, J.:
On August 20, 1941, Royal L. Rutter sold to Placido J. Esteban two parcels of land situated
in the City of Manila for the sum of P9,600 of which P4,800 were paid outright, and the
balance of P4,800 was made payable as follows : P2,400 on or before August 7,  1942, and
P2,400 on or before August 27, 1943, with interest at the rate of 7  per cent per annum.
To secure the payment of said balance of P4,800, a first mortgage over the same parcels
of land has been constituted in favor of the plaintiff. The deed of sale having been registered,
a new title was issued in favor of Placido J. Esteban with the mortgage duly annotated on the
back thereof.
Placido J.  Esteban failed to pay the two installments as agreed upon, as well as the
interest that had accrued thereon, and so on August 2, 1949, Royal L. Rutter instituted this
action in the Court of First Instance of Manila to recover the balance due, the interest due
thereon, and the attorney's fees stipulated in the contract. The complaint also contains a
prayer for the sale of the properties mortgaged in accordance with law.
Placido J. Esteban admitted the averments of the complaint, but set up as a defense the
moratorium clause embodied in Republic Act No. 342. He claims that this is a prewar
obligation contracted on August 20, 1941; that he is a war sufferer, having filed his claim with
the Philippine War Damage Commission for the losses he had suffered as a consequence of
the last war ; and that under section 2 of said Republic Act No. 342, payment of his obligation
Philippine War Damage Commission, and this period has not yet expired.
 After a motion for summary judgment has been presented by the defendant, and the
requisite evidence submitted covering the relevant facts, the court rendered judgment
dismissing the complaint holding that the obligation which plaintiff seeks to enforce is not yet
demandable under the moratorium law. Plaintiff filed a motion for reconsideration wherein he
raised for the first time the constitutionality of the moratorium law, but the motion was
denied. Hence this appeal.
The only question to be determined hinges on the validity of Republic Act No. 342 which
was approved by Congress on July 26, 1948. It is claimed that this act if declared applicable to
the present case is unconstitutional being violative of the constitutional provision forbidding
the impairment of the obligation of contracts (Article III, section 1, Constitution of the
Philippines) .
Section 2 of Republic Act No. 342 provides that all debts and other monetary obligations
contracted before December 8, 1941, any provision in the contract creating the same or in any
subsequent agreement affecting such obligation to the contrary notwithstanding, shall not be
due and demandable for a period of eight (8) years from and after settlement of the war
damage claim of the debtor by the Philippine War Damage Commission ; and section 3 of said
Act provides that should the provision of section 2 be declared void and unenforceable, then
as regards the obligation affected thereby, the provisions of Executive Order No. 25 dated
November 18, 1944, as amended by Executive Order No. 32, dated March 10, 1945, relative
to debt moratorium, shall continue to be in force and effect, any contract affecting the same
to the contrary notwith standing, until subsequently repealed or amended by a legislative
enactment. It thus clearly appears in said Act that the nullification of its provisions will have
the effect of reviving the previous moratorium orders issued by the President of the
Philippines.
Statutes declaring a moratorium on the enforcement of monetary obligations are not of
recent enactment. These moratorium laws are not new. "For some 1,400 years western
civilization has made use of extraordinary devices for saving the credit structure, devices
generally known as moratoria. The moratorium is a postponement of fulfilment of obligations
decreed by the state through the medium of the courts or the legislature. Its essence is the
application of the sovereign power" (58 C. J. S., p. 1208, footnote 87) . In the United States,
many state legislatures have adopted moratorium laws "during times of financial distress,
especially when incident to, or caused by, a war" (41 C. J., p. 213) . Thus, such laws "were
passed by many state legislatures at the time of the civil war suspending the rights of
creditors for a definite and reasonable time,
* * * whether they suspend the right of action or make dilatory the remedy" (12 C. J., p.
1078) . These laws were declared constitutional. However, some courts have also declared
that "such statutes are void as to contracts made before their passage where the suspension
of remedies prescribed is indefinite or unreasonable in duration" (12 C. J., 1078) : The true
test, therefore, of the constitutionality of a moratorium statute lies in the determination of the
period of suspension of the remedy. It is required that such suspension be definite and
reasonable, otherwise it would be violative of the constitution.
One of the arguments advanced against the validity of the moratorium law is the fact that
it impairs the obligation of contracts which is prohibited by the Constitution. This argument,
however, does not now hold water. While this may be conceded, it is however justified as a
valid exercise by the State of its police power. The leading case on the matter is Home
Building and Loan Association vs. Blaisdell, 290 U. S., 398, decided by the Supreme Court of
the United States on January 8, 1934. Here appellant contested the validity of charter 339 of
the laws of Minnesota of 1933, approved April 13, 1933, called the Minnesota Mortgage
Moratorium Law, as being repugnant to the contract clause of the Federal Constitution. The
statute was sustained by the Supreme Court of Minnesota as an emer- gency measure.
"Although conceding that the obligations of the mortgage contract were impaired, the court
decided that what it thus described as an impairment was, notwithstanding the contract clause
of the Federal Constitution, within the police power of the State as that power was called into
exercise by the public economic emergency which. the legislature had found to exist". This
theory was up-. held by the Supreme Court. Speaking through Chief Jus- tice Hughes, the
court made the following pronouncements :
 
"Not only is the constitutional provision qualified by the measure of control which the State
retains over remedial processes, but the State also continues to possess authority to safeguard
the vital interest of its people. It does not matter that legislation appropriate to that end 'has
the result of modifying or abrogating contracts already in effect.' * *. Not only are existing
laws read into contracts in order to fix obligations as between the parties, but the reservation
of essential attributes of sovereign power is also read into contracts as a postulate of the legal
order. The policy of protecting contracts against impairment presupposes the maintenance of
a government by virtue of which contractual relations are worth while, a government which
retains adequate authority to secure the peace and good order of society. This principle of
harmonizing the constitutional prohibition with the necessary residuum of state power has had
progressive recognition in the decisions of this court."
*        *        *        *        *        *        *
"The economic interests of the State may justify the exercise of its continuing and
dominant protective power notwithstanding interference with contracts. * * *
*        *        *        *        *        *        *
"Similarly, where the protective power of the State is exercised in a manner otherwise
appropriate in the regulation of a business it is no objection that the performance of existing
contracts may be frustrated by the prohibition of injurious practices. * * *."
"* * *. The question is not whether the legislative action affects contracts incidentally, or
directly or indirectly, but whether the legislation is addressed to a legitimate end and the
measures taken are reasonable and appropriate to that end. * * *."
*        *        *        *        *        *        *
"Undoubtedly, whatever is reserved of state power must be consistent with the fair intent
of the constitutional limitation of that power. The reserved power cannot be construed so as
to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in
its essential aspects. They must be construed in harmony with each other. This principle
precludes a construction which would permit the State to adopt as its policy the repudiation of
debts or the destruction of contracts or the denial of means to enforce them. But it does not
follow that conditions may not arise in which a temporary restraint of enforcement may be
consistent with the spirit and purpose of the constitutional provision and thus be found to be
within the range of the reserved power of the State to protect the vital interests of the
community. It cannot be maintained that the constitutional prohibition should be so construed
as to prevent limited and temporary interpositions with respect to the enforcement of
contracts if made necessary by a great public calamity such as fire, flood, or earthquake. See
American Land Co. vs.  Zeiss, 219 U. S. 47, 55 L. ed. 82, 31 S. Ct. 200. The reservation of
state power appropriate to such extraordinary conditions may be deemed to be as much a
part of all contracts, as is the reservation of state power to protect the public interest in the
other situation to which we have referred. And if state power exists to give temporary relief
from the enforcement of contracts in the presence of disasters due to physical causes such as
fire, flood or earthquake, that power cannot be said to be nonexistent when the urgent public
need demanding such relief is produced by other and economic causes" (78 L. ed. 426, 428-
429.)
 
This decision elicited several comments. One came from the Harvard Law Review. It said :
"Forsaking its well trodden path of more than a century, the court sustained the first of the
new mortgage moratory laws to meet its scrutiny, and in so doing announced an elastic
concept of the contract clause which, if not newly formulated, at least received such
unequivocal expression that it bids fair to revolutionize a tradition of constitutional
interpretation. * * *. The court rested its decision on the ground that laws altering existing
contracts constitute an impairment within the meaning of the contract clause only if they are
unreasonable in the light of the circumstances occasioning their enactment. Application of this
'rule of reason' was justified on the theory that all contracts are made subject to an implied
reservation of the protective power of the state, and that therefore statutes which validly
exercise this reserved power, rather than impairing the obligations of an existing contract, are
comprehended within them" (47 Haryard Law Review, pp. 660, 661-662) .
But the ruling in the Blaisdell case has its limitations which should not be overlooked in the
determination of the extent to be given to the legislation which attempts to encroach upon the
enforcement of a monetary obligation. It must be noted that the application of the reserved
power of the State to protect the integrity of the government and the security of the people
should be limited to its proper bounds and must be addressed to a legitimate purpose. If
these bounds are transgressed, there is no room for the exercise of the power, for the
constitutional inhibition against the impairment of contracts would assert itself. We can cite
instances by which these bounds may be transgressed. One of them is that the impairment
should only refer to the remedy and not to a substantive right. The State may postpone the
enforcement of the obligation but cannot destroy it by making the remedy futile (W. B.
Worthen Co. vs. Kavanaugh, 79 L. ed. 1298, 1301-1303) Another limitation refers to the
propriety of the remedy. The rule requires that the alteration or change that the new
legislation desires to write into an existing contract must not be burdened with restrictions and
conditions that would make the remedy hardly pursuing (Bronson vs.  Kinziel, I How, 311,
317 ; 46 Hare Law Review, p. 1070). In other words, the Blaisdell case postulates that the
protective power of the State, the police power, may only be invoked and justified by an
emergency, temporary in nature, and can only be exercised upon reasonable conditions in
order that it may not infringe the constitutional provision against impairment of contracts (First
Trust Co. of Lincoln vs. Smith, 277 N. W., pp. 762, 769) . As Justice Cardozo aptly said, "A
different situation is presented when extensions are so piled up as to make the remedy a
shadow * * *. The changes of remedy now challenged as invalid are to be viewed in
combination, with the cumulative significance that each imparts to all. So viewed they are
seen to be an oppressive and unnecessary destruction of nearly all the incidents that give
attractiveness and value to collateral security (W. B. Worthen vs. Kavanaugh, 295 U. S. 56,
62) In fine, the decision in the Blaisdell case is predicated on the ground that the laws altering
existing contracts will constitute an impairment of the contract clause of the Constitution only
if they are unreasonable in the light of the circumstances occasioning their enactment (47
Harvard Law Review, p. 660).
The question now to be determined is, is the period of eight (8) years which Republic Act
No. 342 grants to debtors of a monetary obligation contracted before the last global war and
who is a war sufferer with a claim duly approved by the Philippine War Damage Commission
reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to debtors of prewar
obligations who suffered from the ravages of the last war and who filed a claim. for their
losses with the Philippine War Damage Commis- sion. It is therein provided that said
obligation shall not be due and demandable for a period of eight (8) years from and after
settlement of the claim filed by the debtor with said Commission. The purpose of the law is to
afford to prewar debtors an opportunity to rehabilitate themselves by giving them a
reasonable time within which to pay their prewar debts so as to prevent them from being
victimized by their creditors. While it is admitted in said law that since liberation conditions
have gradually returned to normal, this is not so with regard to those who have suffered the
ravages of war and so it was therein declared as a policy that as to them the debt moratorium
should be continued in force (section 1) .
But we should not lose sight of the fact that these obligations had been pending since
1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their
enforcement is still inhibited because of the enactment of Republic Act No. 342 and would
continue to be unenforceable during the eight-year period granted to prewar debtors to afford
them an opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they could effect a
liquidation of their investment dating as far back as 1941. This period seems to us
unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be
commended, the relief accorded works injustice to creditors who are practically left at the
mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if
the credits are unsecured. And the injustice is more patent when, under the law, the debtor is
not even required to pay interest during the operation of the relief, unlike similar statutes in
the United States (Home Building and Loan Association vs; Blaisdell, supra).
There are at least three cases where the Supreme Court of the United States declared the
moratorium laws violative of the contract clause of the Constitution because the period
granted to debtors as a relief was found unwarranted by the contemplated emergency. One of
them is W. B. Worthen Co. vs.  Thomas, 292 U. S., 426-435 ; 78 L. ed., 1344, 1347. Here the
Legislature of Arkansas passed an act providing for an exemption, "without limitation as to
amount or restriction with respect to particular circumstances or relations, of all monies paid
or payable to any resident of the state under any life, sick, accident or disability insurance
policy, from liability for the payment of the debts of the recipient", and an attempt was made
to apply the statute to debts owing before its approval. The court held that "such an
exemption, applied in the case of debts owing before the exemption was created by the
legislature, constitutes an unwarranted interference with the obligation of contracts in violation
of the constitutional provision", and cannot be sustained even as emergency legislation,
because it contains no limitation as to time, amount, circumstances or need (supra, 292 U. S.,
pp. 426—432) .
The other case is W. B. Worthen vs.  Kavanaugh (supra).  Here certain Municipal
Improvement Districts organized under the laws of Arkansas were empowered to issue bonds
and to mortgage benefit assessments as security therefor. One of these districts acted upon
the powers thus conferred. Some of the bonds were in default for nonpayment of principal
and interest. So an action was brought by the bond-holders to foreclose the assessments upon
the lots of delinquent owners. These bonds and mortgages were executed under the statutes
then in force. Later the legislature of Arkansas passed three acts making changes in the
remedies available under the former statutes, which changes were attacked as an
unconstitutional impairment of contracts. The court sustained this view holding that the
"changes in the remedies available for the enforcement of a mortgage may not, even when
the public welfare is invoked as an excuse, be pressed so far as to cut down the security of a
mortgage without moderation or reason or in a spirit of oppression. * * *. A State is free to
regulate the procedure in its courts even with reference to contracts already made, and
moderate extensions of the time for pleading or for trial will ordinarily fall within the power so
rek Brved ; but a different situation is presented when extensions are so piled up as to make
the remedy a shadow."
The third case is Louisville Joint Stock Land Bank vs.  Radford, 295 U. S. 555, 79 L. ed.
1593. This case presented for decision the question whether subsection (s)  added to section
75 of the Bankruptcy Act by the Frazier—Lemke Act, June 28, 1934, chap. 869, 48 Stat. at L.
1289 U. S. C. title 11, sec. 203, is consistent with the Federal Constitution. The court said that
it is unconstitutional if applied to farm mortgages already existing, holding that "property
rights of holders of farm mortgages are unconstitutionally taken, in violation of the Fifth
Amendment, by a statute (Bankruptcy Act, sec. 75 (s) ; Frazier—Lemke Act of June 28, 1934,
chap. 869, 48 Stat. at L. 1289) applicable only to debts existing at the time of its enactment,
which provides that a farmer whose farm is mortgaged, and who has failed to obtain the
consents necessary to a composition under the Bankruptcy Act, may, upon being adjudged a
bankrupt, if the mortgagee assents, purchase the mortgaged property at its then appraised
value by agreeing to make deferred payments of stated percentages of the appraised value
over a period of six years, with interest at 1 per cent per annum, or, if the mortgagee refuses
his assent to such purchase, may obtain a stay of all proceedings for a period of five
years,  during which he shall retain possession of all or any part of his property, under the
control of the court, provided he pays a reasonable rental therefor, and that at the end of five
years he may pay into court the appraised price thereof, or, if a lien holder shall request a
reappraisal by the court, the reappraised price, whereupon the court shall, by an order, turn
over full possession and title of the property to the debtor, and he may apply for his
discharge."
In addition, we may cite leading state court decisions which practically involved the same
ruling and which reflect the tendency of the courts towards legislation involving modification of
mortgage or monetary contracts which con- tains provisions that are deemed unreasonable or
oppressive. Some of those which may be deemed representative follows
1. Pouquette vs.  O'Brien, 100 Paco 2nd series, 979 (1940) . The Supreme Court of Arizona
held unconstitutional a 1937 statute authorizing courts to extend for a period of not longer
than two years all actions or foreclosures of real estate mortgages, and a 1939 statute
authorizing the courts to extend foreclosure proceedings not later than March 4, 1941.
2.First  Trust Joint Stock Land Bank of Chicago vs.  Adolph Arp et al., 283 N.W. 441, 120
A.L.R. 932 (1939) . The Supreme Court of Iowa declared unconstitutional the Moratorium Acts
enacted in 1933, 1935 and 1937., providing for extension of tlie 1933 Moratorium Act covering
a period of six years. 
3.First Trust Co. of Lincoln vs.  Smith et al., 277 N.W. 762 (1938) . The Supreme Court of
Nebraska declared unconstitutional the Nebraska Moratorium Law as reenacted, extending the
benefit of the remedy to a period of six years, as being repugnant to the contract clause of the
Constitution. 
4.Milkint vs.  McNeely, Clerk of court, et al., 169 S.E. 790 (1933) . The Supreme Court of
Appeals of West Virkinia declared unconstitutional certain acts of legislature enacted in 1932,
extending the period of redemption three years beyond the one-year period then allowed by
statute, being an impairment of contract as to sales made prior to enactment thereof. 
5.Haynes vs.  Treadway, 65 Pac. 892 (1901) . The Supreme Court of California declared
unconstitutional a statute which extends the right of redemption from six months to twelve
months being a substantial impairment of the obligation contracts if applied to a mortgage
already executed. 
6.Swinburne vs.  Mills, 50 Pac. 489 (1897) . The Su. preme Court of Washington declared a
statute unconstitu- tional in so far as it provides that, on a decree for fore- closure of a
mortgage executed before the act was passed, the debtor shall be entitled to have the order
of sale stayed for one year, as being an impairment of the obligation of contract. 
These cases apply with added force in this jurisdiction considering the conditions now
prevailing in our country.
We do not need to go far to appreciate this situation. We can see it and feel it as we gaze
around to observe the wave of reconstruction and rehabilitation that has swept the country
since liberation thanks to the aid of America and the innate progressive spirit of our people.
This aid and this spirit have worked wonders in so short a time that it can now be safely
stated that in the main the financial condition of our country and our people, individually and
collectively, has practically returned to normal notwithstanding occasional reverses caused by
local dissidence and the sporadic disturbance of peace and order in our midst. Business,
industry and agriculture have picked up and developed at such stride that we can say that we
are now well on the road to recovery and progress. This is so not only as far as our
observation and knowledge are capable to take note and comprehend but also because of the
official pronouncements made by our Chief Executive in public addresses and in several
messages he submitted to Congress on the general state of the nation. To bear this out, it
would' suffice for us to state some of those public statements which we deem to be most
expressive and representative of the general situation. We quote:
 
All these find grateful reflection in a better-sheltered, better-clothed, better-fed, and
healthier population that has grown from 18 million to 20 million in a half dozen years, in a
school enrollment that has doubled since the outbreak of the last war from less than 2 million
to over 4 million young students in the public schools, and in democratic processes that are
gaining in vigor and permanence with each passing year" (Address of his Excellency Elpidio
Quirino, President of the Philippines, on the occasion of the celebration of the sixth
anniversary of the independence of the Philippines, July 4, 1952, Luneta, Manila, 48 Off. Gaz.,
pp. 3287-3289).

"We have balanced our national budget. We shall again have at the end of the current
fiscal year a sizeable surplus. * * *  

We have greatly improved the economic and financial conditions of the country. Through
the Rehabilitation Finance Corporation, loans amounting to P90,480,136 have been granted
for the reconstruction and rehabilitation purposes. * * *
We have set up the Central Bank to expand our credit, stabilize our currency and provide a
new source of financing for the agricultural and industrial development of the nation.
In the face of the foregoing observations, and consistent with what we believe to be as the
only course dictated by justice, fairness and righteousness, we feel that the only way open to
us under the present circumstances is to de- clare that the continued operation and
enforcement of Re- public Act No. 342 at the present time is unreasonable and-oppressive,
and should not be prolonged a minute longer, and, therefore, the same should be declared
null and void and without effect. And what we say here with respect

* * The commitment thus far made is not only a favorable sign  ushering in finally the
 
implementation of our plans of economic development, but a significantly successful test of
the solvency of our foreign credit, for it was accepted only after a thorough examination of our
resources and development plans by a board of economists of international authority" (Pres.
Quirino's "State-of-the-Nation" Message to the Joint Session of Congress on Jan. 24, 1949, 45
Off. Ga.., Jan., 1949).

60844----6 

"We have strengthened, * * * our internal and external

finances. Six years ago, we were a country prostrate from the de- struction of war. * * *
Today, we can say that our people not only have returned to their prewar activities, but * *
* have progressed and prospered far beyond what they ever dreamed of before the war.

* * * Three years ago the national income stood at four billion pesos; today it is over
seven billion pesos. * * * The government income has been steadily rising from 60 million
pesos in 1946 to approximately 600 million pesos today, also a progress in six years. 

*        *        *        *        *        *        *       

* * * The ravages of war are fast disappearing, and instead, what beautiful vistas unfold
themselves before our eyes at this mo- ment in our immediate surroundings. Compare this
beautiful view with that of the past and all that we have accomplished in scarcely six years of
struggle, sacrifice, determination, and bold decision. (Applause.)  We have brought this nation
out of the paralysis of destruction into economic normalcy and financial stability. * * * 

* * * Our external finances have greatly improved, and * * * our pesos is one of the most
stable currencies in the world today. (Applause.) I repeat, our pesos is one of the most stable
currencies in the world today. 
 G.R. No. 177508. August 7, 2009.*
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY
(BANAT) PARTY-LIST, represented by SALVADOR B. BRITANICO,
petitioner, vs. COMMISSION ON ELECTIONS, respondent.
Judicial Review; Statutes; It is settled that every statute is presumed to be
constitutional.—It is settled that every statute is presumed to be constitutional. The
presumption is that the legislature intended to enact a valid, sensible and just law. Those who
petition the Court to declare a law unconstitutional must show that there is a clear and
unequivocal breach of the Constitution, not merely a doubtful, speculative or argumentative
one; otherwise, the petition must fail.
Same; Same; Constitutional Law; Titles of Bills; The constitutional requirement that
“every bill passed by the Congress shall embrace only one subject which shall be expressed in
the title thereof” is satisfied if the title is comprehensive enough to include subjects related to
the general purpose which the statute seeks to achieve. —Both the COMELEC and the OSG
maintain that the title of RA 9369 is broad enough to encompass topics which deal not only
with the automation process but with everything related to its purpose encouraging a trans-
parent, credible, fair, and accurate elections. The constitutional requirement that “every bill
passed by the Congress shall embrace only one subject which shall be expressed in the title
thereof” has always been given a practical rather than a technical construction. The
requirement is satisfied if the title is comprehensive enough to include subjects related to the
general purpose which the statute seeks to achieve. The title of a law does not have to be an
index of its contents and will suffice if the matters embodied in the text are relevant to each
other and may be inferred from the title. Moreover, a title which declares a statute to be an
act to amend a specified code is sufficient and the precise nature of the amendatory act need
not be further stated.
Election Law; Election Contests; Electoral Tribunals; The jurisdiction of the Presidential
Electoral Tribunal and the Senate Electoral Tribunal can only be invoked once the winning
presidential, vice presidential or senatorial candidates have been proclaimed, while under
Section 37 of Republic Act No. 9369, Congress and the COMELEC en banc shall determine only
the authenticity and due execution of the certificates of canvass, a power that they shall
exercise before the proclamation of the winning presidential, vice presidential, and senatorial
candidates.—In the present case, Congress and the COMELEC en banc do not encroach upon
the jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of
Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other,
are exercised on different occasions and for different purposes. The PET is the sole judge of
all contests relating to the election, returns and qualifications of the President or Vice
President. The SET is the sole judge of all contests relating to the election, returns, and
qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be
invoked once the winning presidential, vice presidential or senatorial candidates have been
proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall
determine only the authenticity and due execution of the certificates of canvass. Congress and
the COMELEC en banc shall exercise this power before the proclamation of the winning
presidential, vice presidential, and senatorial candidates.
Same; Same; Same; Constitutional Law; Commission on Elections (COMELEC); The
Constitution did not give the Commission on Elections the “exclusive power” to investigate and
prosecute cases of violations of election laws.—We do not agree with petitioner and the
COMELEC that the Constitution gave the COMELEC the “exclusive power” to investigate and
prosecute cases of violations of election laws. Section 2(6), Article IX-C of the Constitution
vests in the COMELEC the power to “investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election frauds, offenses,
and malpractices.” This was an important innovation introduced by the Constitution because
this provision was not in the 1935 or 1973 Constitutions. The phrase “[w]here appropriate”
leaves to the legislature the power to determine the kind of election offenses that the
COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the
government.
Same; Same; Same; Same; The grant of the “exclusive power” to the Commission on
Elections (COMELEC) can be found in Section 265 of Batas Pambansa 881—prior to BP 881,
no such “exclusive power” was ever bestowed on the COMELEC.—The grant of the “exclusive
power” to the COMELEC can be found in Section 265 of BP 881, which provides: Sec.
265. Prosecution.—The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however, That in the event that the
Commission fails to act on any complaint within four months from his filing, the complainant
may file the complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted. (Emphasis supplied) This was also an innovation
introduced by BP 881. The history of election laws shows that prior to BP 881, no such
“exclusive power” was ever bestowed on the COMELEC.
Same; Same; Same; Same; The grant of the “exclusive power” to investigate and
prosecute election offenses to the Commission on Elections (COMELEC) was not by virtue of
the Constitution but by Batas Pambansa 881, a legislative enactment; Given the plenary
power of the legislature to amend or repeal laws, if Congress passes a law amending Section
265 of Batas Pambansa 881, such law does not violate the Constitution.—It is clear that the
grant of the “exclusive power” to investigate and prosecute election offenses to the COMELEC
was not by virtue of the Constitution but by BP 881, a legislative enactment. If the intention of
the framers of the Constitution were to give the COMELEC the “exclusive power” to investigate
and prosecute election offenses, the framers would have expressly so stated in the
Constitution. They did not. In People v. Basilla, 179 SCRA 87 (1989), we acknowledged that
without the assistance of provincial and city fiscals and their assistants and staff members,
and of the state prosecutors of the Department of Justice, the prompt and fair investigation
and prosecution of election offenses committed before or in the course of nationwide elections
would simply not be possible. In COMELEC v. Español, 417 SCRA 554 (2003), we also stated
that enfeebled by lack of funds and the magnitude of its workload, the COMELEC did not have
a sufficient number of legal officers to conduct such investigation and to prosecute such cases.
The prompt investigation, prosecution, and disposition of election offenses constitute an
indispensable part of the task of securing free, orderly, honest, peaceful, and credible
elections. Thus, given the plenary power of the legislature to amend or repeal laws, if
Congress passes a law amending Section 265 of BP 881, such law does not violate the
Constitution.
 Same; Police Power; Contracts; Non-Impairment Clause; The non-impairment clause is
limited in application to laws that derogate from prior acts or contracts by enlarging, abridging
or in any manner changing the intention of the parties; It is settled that police power is
superior to the non-impairment clause.—There is no violation of the non-impairment
clause. First, the non- impairment clause is limited in application to laws that derogate from
prior acts or contracts by enlarging, abridging or in any manner changing the intention of the
parties. There is impairment if a subsequent law changes the terms of a contract between the
parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for
the enforcement of the rights of the parties. As observed by the OSG, there is no existing
contract yet and, therefore, no enforceable right or demandable obligation will be impaired.
RA 9369 was enacted more than three months prior to the 14 May 2007 elections. Hence,
when the dominant majority and minority parties hired their respective poll watchers for the
14 May 2007 elections, they were deemed to have incorporated in their contracts all the
provisions of RA 9369. Second, it is settled that police power is superior to the non-impairment
clause. The constitutional guaranty of non-impairment of contracts is limited by the exercise of
the police power of the State, in the interest of public health, safety, morals, and general
welfare of the community.
Same; Same; Poll Watchers; The regulation of the per diem of the poll watchers of the
dominant majority and minority parties promotes the general welfare of the community and is
a valid exercise of police power.—Assuming there were existing contracts, Section 34 would
still be constitutional because the law was enacted in the exercise of the police power of the
State to promote the general welfare of the people. We agree with the COMELEC that the role
of poll watchers is invested with public interest. In fact, even petitioner concedes that poll
watchers not only guard the votes of their respective candidates or political parties but also
ensure that all the votes are properly counted. Ultimately, poll watchers aid in fair and honest
elections. Poll watchers help ensure that the elections are transparent, credible, fair, and
accurate. The regulation of the per diem of the poll watchers of the dominant majority and
minority parties promotes the general welfare of the community and is a valid exercise of
police power.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
   The facts are stated in the opinion of the Court.
  R. Lambino Law Firm  for petitioner.
  The Solicitor General for respondent.
CARPIO, J.:
The Case
Before the Court is a petition for prohibition 1 with a prayer for the issuance of a temporary
restraining order or a writ of preliminary injunction 2 filed by petitioner Barangay Association
for National Advancement and Transparency (BANAT) Party List (petitioner) assailing the
constitutionality of Republic Act No. 9369 (RA 9369)3 and enjoining respondent Commission on
Elections (COMELEC) from implementing the statute.
RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the
Senate on 7 December 2006 and the House of Representatives on 19 December 2006. On 23
January 2007, less than four months before the 14 May 2007 local elections, the President
signed RA 9369. Two newspapers of general circulation, Malaya and Business Mirror,
published RA 9369 on 26 January 2007. RA 9369 thus took effect on 10 February 2007.
On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed this petition
for prohibition alleging that RA 9369 violated Section 26(1), Article VI of the Consti-
tution.4 Petitioner also assails the constitutionality of Sections 34, 37, 38, and 43 of RA 9369.
According to petitioner, these provisions are of questionable application and doubtful validity
for failing to comply with the provisions of the Constitution.
The COMELEC and the Office of the Solicitor General (OSG) filed their respective
Comments. At the outset, both maintain that RA 9369 enjoys the presumption of
constitutionality, save for the prayer of the COMELEC to declare Section 43 as
unconstitutional.
The Assailed Provisions of RA 9369
Petitioner assails the following provisions of RA 9369:
1. Section 34 which provides:
“SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as follows:
“SEC. 26. Official Watchers.—Every registered political party or coalition of political
parties, and every candidate shall each be entitled to one watcher in every polling place and
canvassing center: Provided, That, candidates for the Sangguniang Panlalawigan,
Sangguniang Panlunsod, or Sangguniang Bayan belonging to the same slate or ticket shall
collectively be entitled to only one watcher.
“The dominant majority party and dominant minority party, which the Commission shall
determine in accordance with law, shall each be entitled to one official watcher who shall be
paid a fixed per diem of four hundred pesos (400.00).
“There shall also recognized six principal watchers, representing the six accredited major
political parties excluding the dominant majority and minority parties, who shall be designated
by the Commission upon nomination of the said parties. These political parties shall be
determined by the Commission upon notice and hearing on the basis of the following
circumstances:
“(a) The established record of the said parties, coalition of groups that now composed
them, taking into account, among other things, their showing in past election;
“(b) The number of incumbent elective officials belonging to them ninety (90) days
before the date of election;
 “(c) Their identifiable political organizations and strengths as evidenced by their
organized/chapters;
“(d) The ability to fill a complete slate of candidates from the municipal level to the
position of President; and
“(e) Other analogous circumstances that may determine their relative organizations and
strengths.”
2. Section 37 which provides:
SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows:
“SEC. 30. Congress as the National Board of Canvassers for the Election of President and
Vice President: The Commission en banc as the National Board of Canvassers for the election
of senators: Determination of Authenticity and Due Execution of Certificates of Canvass. —
Congress and the Commission en banc shall determine the authenticity and due execution of
the certificate of canvass for president and vice president and senators, respectively, as
accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1)
each certificate of canvass was executed, signed and thumbmarked by the chairman and
members of the board of canvassers and transmitted or caused to be transmitted to Congress
by them; (2) each certificate of canvass contains the names of all of the candidates for
president and vice president or senator, as the case may be, and their corresponding votes in
words and their corresponding votes in words and in figures; (3) there exits no discrepancy in
other authentic copies of the certificates of canvass or any of its supporting documents such
as statement of votes by city/municipality/by precinct or discrepancy in the votes of any
candidate in words and figures in the certificate; and (4) there exist no discrepancy in the
votes of any candidate in words and figures in the certificates of canvass against the
aggregate number of votes appearing in the election returns of precincts covered by the
certificate of canvass: Provided, That certified print copies of election returns or certificates of
canvass may be used for the purpose of verifying the existence of the discrepancy.
“When the certificate of canvass, duly certified by the board of canvassers of each
province, city of district, appears to be incomplete, the Senate President or the Chairman of
the Commission, as the case may be, shall require the board of canvassers concerned to
transmit by personal delivery, the election returns form polling places that were not included
in the certificate of canvass and supporting statements. Said election returns shall be
submitted by personal delivery within two (2) days from receipt of notice.
“When it appears that any certificate of canvass or supporting statement of votes by
city/municipality or by precinct bears erasures or alteration which may cast doubt as to the
veracity of the number of votes stated herein and may affect the result of the election, upon
requested of the presidential, vice presidential or senatorial candidate concerned or his party,
congress or the commission en banc, as the case may be shall, for the sole purpose of
verifying the actual number of votes cast for president, vice president or senator, count the
votes as they appear in the copies of the election returns submitted to it.
“In case of any discrepancy, incompleteness, erasure or alteration as mentioned above,
the procedure on pre-proclamation controversies shall be adopted and applied as provided in
Section 17, 18, 19 and 20.
“Any person who present in evidence a simulated copy of an election return, certificate of
canvass or statement of votes, or a printed copy of an election return, certificate of canvass or
statement of votes bearing a simulated certification or a simulated image, shall be guilty of an
election offense shall be penalized in accordance with Batas Pambansa Blg. 881.”
3. Section 38 which provides:
SEC. 38. Section 15 of Republic Act No. 7166 is hereby amended to read as follows:
“SEC. 15. Pre-proclamation Cases in Elections for President, Vice President, Senator, and
Member of the House of Representatives.—For purposes of the elections for president, vice
president, senator, and member of the House of Representatives, no pre-proclamation cases
shall be allowed on matters relating to the preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of canvass, as the case may be, except as
provided for in Section 30 hereof. However, this does not preclude the authority of the
appropriate canvassing body motu proprio or upon written complaint of an interested person
to correct manifest errors in the certificate of canvass or election returns before it.
“Questions affecting the composition or proceedings of the board of canvassers may be
initiated in the board or directly with the Commission in accordance with Section 19 hereof.
“Any objection on the election returns before the city or municipal board of canvassers, or
on the municipal certificates of canvass before the provincial board of canvassers or district
board of canvassers in Metro Manila Area, shall be specifically noticed in the minutes of the
respective proceedings.”
4. Section 43 which provides:
SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:
“SEC. 265. Prosecution.—The Commission shall, through its duly authorized legal
officers, have the power, concurrent with the other prosecuting arms of the government, to
conduct preliminary investigation of all election offenses punishable under this Code, and to
prosecute the same.”
The Issues
Petitioner raises the following issues:
1. Whether RA 9369 violates Section 26(1), Article VI of the Constitution;
 2. Whether Sections 37 and 38 violate Section 17, Article VI5 and Paragraph 7,
Section 4, Article VII6 of the Constitution;
3. Whether Section 43 violates Section 2(6), Article IX-C of the Constitution;7 and
4. Whether Section 34 violates Section 10, Article III of the Constitution.8
The Court’s Ruling
The petition has no merit.
It is settled that every statute is presumed to be constitutional. 9 The presumption is that
the legislature intended to enact a valid, sensible and just law. Those who petition the Court
to declare a law unconstitutional must show that there is a clear and unequivocal breach of
the Constitution, not merely a doubtful, speculative or argumentative one; otherwise, the
petition must fail.10
In this case, petitioner failed to justify why RA 9369 and the assailed provisions should be
declared unconstitutional.
RA 9369 does not violate Section 26(1),
Article VI of the Constitution
Petitioner alleges that the title of RA 9369 is misleading because it speaks of poll
automation but contains substantial provisions dealing with the manual canvassing of election
returns. Petitioner also alleges that Sections 34, 37, 38, and 43 are neither embraced in the
title nor germane to the subject matter of RA 9369.
Both the COMELEC and the OSG maintain that the title of RA 9369 is broad enough to
encompass topics which deal not only with the automation process but with everything related
to its purpose encouraging a transparent, credible, fair, and accurate elections.
The constitutional requirement that “every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof” has always been given a practical
rather than a technical construction. 11 The requirement is satisfied if the title is comprehensive
enough to include subjects related to the general purpose which the statute seeks to
achieve.12 The title of a law does not have to be an index of its contents and will suffice if the
matters embodied in the text are relevant to each other and may be inferred from the
title.13 Moreover, a title which declares a statute to be an act to amend a specified code is
sufficient and the precise nature of the amendatory act need not be further stated.14
 RA 9369 is an amendatory act entitled “An Act Amending Republic Act No. 8436, Entitled
‘An Act Authorizing the Commission on Elections to Use an Automated Election System in the
May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral
Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections,
Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and
Other Related Election Laws, Providing Funds Therefor and For Other Purposes.’ ” Clearly, the
subject matter of RA 9369 covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP
881),15 Republic Act No. 7166 (RA 7166),16 and other related election laws to achieve its
purpose of promoting transparency, credibility, fairness, and accuracy in the elections. The
provisions of RA 9369 assailed by petitioner deal with amendments to specific provisions of RA
7166 and BP 881, specifically: (1) Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA
7166, respectively; and (2) Section 43 of RA 9369 amends Section 265 of BP 881. Therefore,
the assailed provisions are germane to the subject matter of RA 9369 which is to amend RA
7166 and BP 881, among others.
Sections 37 and 38 do not violate Section 17, Article VI and Paragraph 7, Section 4,
Article VII of the Constitution
Petitioner argues that Sections 37 and 38 violate the Constitution by impairing the powers
of the Presidential Electoral Tribunal (PET) and the Senate Electoral Tribunal (SET). According
to petitioner, under the amended provisions, Congress as the National Board of Canvassers for
the election of President and Vice President (Congress), and the COMELEC en banc as the
National Board of Canvassers (COMELEC en banc), for the election of Senators may now
entertain pre-proclamation cases in the election of the President, Vice President, and Senators.
Petitioner concludes that in entertaining pre-proclamation cases, Congress and the
COMELEC en banc  undermine the independence and encroach upon the jurisdiction of the PET
and the SET.
The COMELEC maintains that the amendments introduced by Section 37 pertain only to
the adoption and application of the procedures on pre-proclamation controversies in case of
any discrepancy, incompleteness, erasure or alteration in the certificates of canvass. The
COMELEC adds that Section 37 does not provide that Congress and the COMELEC en
banc  may now entertain pre-proclamation cases for national elective posts.
The OSG argues that the Constitution does not prohibit pre-proclamation cases involving
national elective posts. According to the OSG, only Section 15 of RA 7166 17 expressly disallows
pre-proclamation cases involving national elective posts but this provision was subsequently
amended by Section 38 of RA 9636.
In Pimentel III v. COMELEC,18 we already discussed the implications of the amendments
introduced by Sections 37 and 38 to Sections 15 and 30 19 of RA 7166, respectively and we
declared:
“Indeed, this Court recognizes that by virtue of the amendments introduced by Republic
Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving
the authenticity and due execution of certificates of canvass are now allowed in elections for
President, Vice President, and Senators. The intention of Congress to treat a case falling under
Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a pre-
proclamation case is apparent in the fourth paragraph of the said provision which adopts and
applies to such a case the same procedure provided under Sections 17, 18, 19 and 20 of
Republic Act No. 7166 on pre-proclamation controversies.
In sum, in [the] elections for President, Vice President, Senators and Members of the
House of Representatives, the general rule is still that pre-proclamation cases on matters
relating to the preparation, transmission, receipt, custody and appreciation of election returns
or certificates of canvass are still prohibited. As with other general rules, there are recognized
exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting
the composition or proceeding of the board of canvassers; and (3) determination of the
authenticity and due execution of certificates of canvass as provided in Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369.”20
In the present case, Congress and the COMELEC en banc do not encroach upon the
jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of
Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other,
are exercised on different occasions and for different purposes. The PET is the sole judge of
all contests relating to the election, returns and qualifications of the President or Vice
President. The SET is the sole judge of all contests relating to the election, returns, and
qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be
invoked once the winning presidential, vice presidential or senatorial candidates have been
proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall
determine only the authenticity and due execution of the certificates of canvass. Congress and
the COMELEC en banc shall exercise this power before the proclamation of the winning
presidential, vice presidential, and senatorial candidates.
Section 43 does not violate Section 2(6),
Article IX-C of the Constitution
Both petitioner and the COMELEC argue that the Constitution vests in the COMELEC the
“exclusive power” to investigate and prosecute cases of violations of election laws. Petitioner
and the COMELEC allege that Section 43 is unconstitutional because it gives the other
prosecuting arms of the government concurrent power with the COMELEC to investigate and
prosecute election offenses.21
We do not agree with petitioner and the COMELEC that the Constitution gave the
COMELEC the “exclusive power” to investigate and prosecute cases of violations of election
laws.
Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to
“investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses, and malpractices.” This was
an important innovation introduced by the Constitution because this provision was not in the
193522 or 197323 Constitutions. 24 The phrase “[w]here appropriate” leaves to the legislature the
power to determine the kind of election offenses that the COMELEC shall prosecute exclusively
or concurrently with other prosecuting arms of the government.
The grant of the “exclusive power” to the COMELEC can be found in Section 265 of BP
881, which provides:
“Sec. 265. Prosecution.—The Commission shall, through its duly authorized legal officers,
have the exclusive power to conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government: Provided, however, That in the event
that the Commission fails to act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the fiscal or with the Ministry of Justice
for proper investigation and prosecution, if warranted.” (Emphasis supplied)
This was also an innovation introduced by BP 881. The history of election laws shows that
prior to BP 881, no such “exclusive power” was ever bestowed on the COMELEC.25
We also note that while Section 265 of BP 881 vests in the COMELEC the “exclusive power”
to conduct preliminary investigations and prosecute election offenses, it likewise authorizes
the COMELEC to avail itself of the assistance of other prosecuting arms of the government. In
the 1993 COMELEC Rules of Procedure, the authority of the COMELEC was subsequently
qualified and explained.26 The 1993 COMELEC Rules of Procedure provides:
Rule 34—Prosecution of Election Offenses
“Sec. 1. Authority of the Commission to Prosecute Election Offenses.—The Commission
shall have the exclusive power to conduct preliminary investigation of all election offenses
punishable under the election laws and to prosecute the same, except as may otherwise
be provided by law.” (Emphasis supplied)
It is clear that the grant of the “exclusive power” to investigate and prosecute election
offenses to the COMELEC was not by virtue of the Constitution but by BP 881, a legislative
enactment. If the intention of the framers of the Constitution were to give the COMELEC the
“exclusive power” to investigate and prosecute election offenses, the framers would have
expressly so stated in the Constitution. They did not.
 In People v. Basilla,27 we acknowledged that without the assistance of provincial and city
fiscals and their assistants and staff members, and of the state prosecutors of the Department
of Justice, the prompt and fair investigation and prosecution of election offenses committed
before or in the course of nationwide elections would simply not be possible.28 In COMELEC v.
Español,29 we also stated that enfeebled by lack of funds and the magnitude of its workload,
the COMELEC did not have a sufficient number of legal officers to conduct such investigation
and to prosecute such cases.30 The prompt investigation, prosecution, and disposition of
election offenses constitute an indispensable part of the task of securing free, orderly, honest,
peaceful, and credible elections. 31 Thus, given the plenary power of the legislature to amend
or repeal laws, if Congress passes a law amending Section 265 of BP 881, such law does not
violate the Constitution.
Section 34 does not violate Section 10,
Article III of the Constitution
 Petitioner assails the constitutionality of the provision which fixes the per diem of poll
watchers of the dominant majority and dominant minority parties at P400 on election day.
Petitioner argues that this violates the freedom of the parties to contract and their right to fix
the terms and conditions of the contract they see as fair, equitable and just. Petitioner adds
that this is a purely private contract using private funds which cannot be regulated by law.
 The OSG argues that petitioner erroneously invoked the non-impairment clause because
this only applies to previously perfected contracts. In this case, there is no perfected contract
and, therefore, no obligation will be impaired.
Both the COMELEC and the OSG argue that the law is a proper exercise of police power
and it will prevail over a contract. According to the COMELEC, poll watching is not just an
ordinary contract but is an agreement with the solemn duty to ensure the sanctity of votes.
The role of poll watchers is vested with public interest which can be regulated by Congress in
the exercise of its police power. The OSG further argues that the assurance that the poll
watchers will receive fair and equitable compensation promotes the general welfare. The OSG
also states that this was a reasonable regulation considering that the dominant majority and
minority parties will secure a copy of the election returns and are given the right to assign poll
watchers inside the polling precincts.
There is no violation of the non-impairment clause. First, the non- impairment clause is
limited in application to laws that derogate from prior acts or contracts by enlarging, abridging
or in any manner changing the intention of the parties. 32 There is impairment if a subsequent
law changes the terms of a contract between the parties, imposes new conditions, dispenses
with those agreed upon or withdraws remedies for the enforcement of the rights of the
parties.33
 As observed by the OSG, there is no existing contract yet and, therefore, no enforceable
right or demandable obligation will be impaired. RA 9369 was enacted more than three
months prior to the 14 May 2007 elections. Hence, when the dominant majority and minority
parties hired their respective poll watchers for the 14 May 2007 elections, they were deemed
to have incorporated in their contracts all the provisions of RA 9369.
 Second, it is settled that police power is superior to the non-impairment clause.34 The
constitutional guaranty of non-impairment of contracts is limited by the exercise of the police
power of the State, in the interest of public health, safety, morals, and general welfare of the
community.
 Section 8 of COMELEC Resolution No. 1405 35 specifies the rights and duties of poll
watchers:
“The watchers shall have the right to stay in the space reserved for them inside the polling
place. They shall have the right to witness and inform themselves of the proceedings of the
board; to take notes of what they may see or hear, to take photographs of the proceedings
and incidents, if any, during the counting of votes, as well as the election returns, tally board
and ballot boxes; to file a protest against any irregularity or violation of law which they believe
may have been committed by the board or by any of its members or by any person; to obtain
from the board a certificate as to the filing of such protest and/or of the resolution thereon; to
read the ballots after they shall have been read by the chairman, as well as the election
returns after they shall have been completed and signed by the members of the board without
touching them, but they shall not speak to any member of the board, or to any voter, or
among themselves, in such a manner as would disturb the proceedings of the board; and to
be furnished, upon request, with a certificate of votes for the candidates, duly signed and
thumbmarked by the chairman and all the members of the board of election inspectors.”
Additionally, the poll watchers of the dominant majority and minority parties in a precinct
shall, if available, affix their signatures and thumbmarks on the election returns for that
precinct.36 The dominant majority and minority parties shall also be given a copy of the
certificates of canvass37 and election returns38 through their respective poll watchers. Clearly,
poll watchers play an important role in the elections.
Moreover, while the contracting parties may establish such stipulations, clauses, terms,
and conditions as they may deem convenient, such stipulations should not be contrary to law,
morals, good customs, public order, or public policy.39
In Beltran v. Secretary of Health,40 we said:
“Furthermore, the freedom to contract is not absolute; all contracts and all rights are
subject to the police power of the State and not only may regulations which affect them be
established by the State, but all such regulations must be subject to change from time to time,
as the general well-being of the community may require, or as the circumstances may change,
or as experience may demonstrate the necessity.”41 (Emphasis supplied)
Therefore, assuming there were existing contracts, Section 34 would still be constitutional
because the law was enacted in the exercise of the police power of the State to promote the
general welfare of the people. We agree with the COMELEC that the role of poll watchers is
invested with public interest. In fact, even petitioner concedes that poll watchers not only
guard the votes of their respective candidates or political parties but also ensure that all the
votes are properly counted. Ultimately, poll watchers aid in fair and honest elections. Poll
watchers help ensure that the elections are transparent, credible, fair, and accurate. The
regulation of the per diem of the poll watchers of the dominant majority and minority parties
promotes the general welfare of the community and is a valid exercise of police power.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
Puno (C.J.), Ynares-Santiago, Corona, Carpio-Morales, Chico-Nazario, Velasco, Jr.,
Nachura, Leonardo-De Castro, Brion, Peralta  and Bersamin, JJ., concur.
Quisumbing, J., On Official Leave.
Petition dismissed.
Notes.—The State undoubtedly, in the exercise of its inherent police power, may then
enact laws to safeguard and regulate the act of voter’s registration for the ultimate pur-
 
 G.R. No. 162777. August 31, 2004.*
FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented
by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her
capacity as Acting Director IV, National Capital Judicial Region, Commission on
Elections, and the SOLICITOR GENERAL, respondents.
Election Law; Commission on Elections; Administrative Law; Police power, as an
inherent attribute of sovereignty, is the power to prescribe regulations to promote the health,
morals, peace, education, good order, or safety, and the general welfare of the people.—
Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to
promote the health, morals, peace, education, good order, or safety, and the general welfare
of the people. To determine the validity of a police measure, two questions must be asked: (1)
Does the interest of the public in general, as distinguished from those of a particular class,
require the exercise of police power? and (2) Are the means employed reasonably necessary
for the accomplishment of the purpose and not unduly oppressive upon individuals?
Same; Same; The COMELEC was acting well within its scope of powers when it required
petitioner to discontinue the display of the subject billboards. If the subject billboards were to
be allowed, candidates for public office whose name and image are used to advertise
commercial products would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have the same chance of
lending their faces and names to endorse popular commercial products as image models.—It
is true that when petitioner entered into the contracts or agreements to endorse certain
products, he acted as a private individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of candidacy for Senator, the billboards
featuring his name and image assumed partisan political character because the same indirectly
promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers
when it required petitioner to discontinue the display of the subject billboards. If the subject
billboards were to be allowed, candidates for public office whose name and image are used to
advertise commercial products would have more opportunity to make themselves known to
the electorate, to the disadvantage of other candidates who do not have the same chance of
lending their faces and names to endorse popular commercial products as image models.
Similarly, an individual intending to run for public office within the next few months, could pay
private corporations to use him as their image model with the intention of familiarizing the
public with his name and image even before the start of the campaign period.
general welfare. Such an act will not militate against the impairment clause, which is subject
to and limited by the paramount police power.— The non-impairment clause of the
Constitution must yield to the loftier purposes targeted by the Government. Equal opportunity
to proffer oneself for public office, without regard to the level of financial resources one may
have at his disposal, is indeed of vital interest to the public. The State has the duty to enact
and implement rules to safeguard this interest. Time and again, this Court has said that
contracts affecting public interest contain an implied reservation of the police power as a
postulate of the existing legal order. This power can be activated at anytime to change the
provisions of the contract, or even abrogate it entirely, for the promotion or protection of the
general welfare. Such an act will not militate against the impairment clause, which is subject
to and limited by the paramount police power.
Same; Same; Same; Same; Fair Elections Act; By regulating the use of election
propaganda materials, the COMELEC is merely doing its duty under the law. Under Sections 3
and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and
regulation by the COMELEC.—The Solicitor General rightly points out that the assailed
provision does not prohibit billboards as lawful election propaganda. It only regulates their use
to prevent premature campaigning and to equalize, as much as practicable, the situation of all
candidates by preventing popular and rich candidates from gaining undue advantage in
exposure and publicity on account of their resources and popularity. Moreover, by regulating
the use of such election propaganda materials, the COMELEC is merely doing its duty under
the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject
to the supervision and regulation by the COMELEC.
Statutes; Constitutional Law; Police Power; A statute or regulation is considered void for
overbreadth when it offends the constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to State regulations may not be achieved
by means that sweep unnecessarily broadly and thereby invade the area of protected
freedoms.—A statute or regulation is considered void for overbreadth when it offends the
constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the Court.

Same; Same; The COMELEC is expressly authorized to supervise or regulate the      Buenaventura B. Miranda and Richard A. Salazar for petitioner.
enjoyment or utilization of all media communication or information to ensure equal
opportunity, time and space.—Under the Constitution, the COMELEC is expressly authorized to AZCUNA, J.:
supervise or regulate the enjoyment or utilization of all media communication or information
to ensure equal opportunity, time, and space. All these are aimed at the holding of free,
orderly, honest, peaceful, and credible elections. In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction,
Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the
Same; Same; Constitutional Law; Police Power; Time and again, this Court has said that Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520,
contracts affecting public interest contain an implied reservation of the police power as a dated January 6, 2004. The assailed provision is, as follows:
postulate of the exiting legal order. Police power can be activated at anytime to change the
provisions of the contract, or even abrogate it entirely, for the promotion or protection of the
Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls
and other materials showing the picture, image, or name of a person, and all advertisements
on print, in radio or on television showing the image or mentioning the name of a person, who
subsequent to the placement or display thereof becomes a candidate for public office shall be
immediately removed by said candidate and radio station, print media or television station
within 3 days after the effectivity of these implementing rules; otherwise, he and said radio
station, print media or television station shall be presumed to have conducted premature
campaigning in violation of Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew
So to use his name and image for 96° North, a clothing company. Petitioner also signed
Endorsement Agreements with Konka International Plastics Manufacturing Corporation and
another corporation involved in the amusement and video games business, G-Box. These last
two agreements were entered into on October 14, 2003 and November 10, 2003, respectively.
Pursuant to these agreements, three billboards were set up along the Balintawak Interchange
of the North Expressway. One billboard showed petitioner promoting the plastic products of
Konka International Plastics Manufacturing Corporation, and the other two showed petitioner
endorsing the clothes of 96° North. One more billboard was set up along Roxas Boulevard
showing petitioner promoting the game and amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of candidacy for the
position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties:
PROMDI, REPORMA, and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained
Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to
comply with the said provision by the COMELEC’s Law Department. He replied, on January 29,
2004, by requesting the COMELEC that he be informed as to how he may have violated the
assailed provision. He sent another letter dated February 23, 2004, this time asking the
COMELEC that he be exempted from the application of Section 32, considering that the
billboards adverted to are mere product endorsements and cannot be construed as
paraphernalia for premature campaigning under the rules.
The COMELEC answered petitioner’s request by issuing another letter, dated February 27,
2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover
them from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from
enforcing the assailed provision. He urges this Court to declare the assailed provision
unconstitutional as the same is allegedly: (1) a gross violation of the non-impairment clause;
(2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary
to the Fair Elections Act; and (5) invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power?
Petitioner argues that the billboards, while they exhibit his name and image, do not at all
announce his candidacy for any public office nor solicit support for such candidacy from the
electorate. They are, he claims, mere product endorsements and not election propaganda.
Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of the
COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is
the power to prescribe regulations to promote the health, morals, peace, education, good
order, or safety, and the general welfare of the people.1 To determine the validity of a police
measure, two questions must be asked: (1) Does the interest of the public in general, as
distinguished from those of a particular class, require the exercise of police power? and (2)
Are the means employed reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public office, to
equalize the situation between popular or rich candidates, on one hand, and lesser-known or
poorer candidates, on the other, by preventing the former from enjoying undue advantage in
exposure and publicity on account of their resources and popularity. The latter is a valid
reason for the exercise of police power as held in National Press Club v. COMELEC,2 wherein
the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646,
which prohibited the sale or donation of print space and air time “for campaigning or other
political purposes,” except to the COMELEC. The obvious intention of this provision is to
equalize, as far as practicable, the situations of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign “war chests.” This
Court ruled therein that this objective is of special importance and urgency in a country which,
like ours, is characterized by extreme disparity in income distribution between the economic
elite and the rest of society, and by the prevalence of poverty, with so many of our population
falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are purely product
endorsements and do not announce nor solicit any support for his candidacy. Under the
Omnibus Election Code, “election campaign” or “partisan political activity” is defined as an act
designed to promote the election or defeat of a particular candidate or candidates to a public
office. Activities included under this definition are:
. (1)Forming organizations, associations, clubs, committees, or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign for or
against a candidate;
. (2)Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
. (3)Making speeches, announcements or commentaries, or holding interviews for or
against the election of any candidate for public office;
. (4)Publishing or distributing campaign literature or materials designed to support or
oppose the election of any candidate; or
. (5)Directly or indirectly soliciting votes, pledges or support for or against a
candidate.3 (italics ours)
It is true that when petitioner entered into the contracts or agreements to endorse certain
products, he acted as a private individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of candidacy for Senator, the billboards
featuring his name and image assumed partisan political character because the same indirectly
promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers
when it required petitioner to discontinue the display of the subject billboards. If the subject
billboards were to be allowed, candidates for public office whose name and image are used to
advertise commercial products would have more opportunity to make themselves known to
the electorate, to the disadvantage of other candidates who do not have the same chance of
lending their faces and names to endorse popular commercial products as image models.
Similarly, an individual intending to run for public office within the next few months, could pay
private corporations to use him as their image model with the intention of familiarizing the
public with his name and image even before the start of the campaign period. This, without a
doubt, would be a circumvention of the rule against premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign period .—It shall be
unlawful for any person, whether or not a voter or candidate, or for any party, or association
of persons, to engage in an election campaign or partisan political activity except during the
campaign period. x x x 4
Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful,
and credible elections.
Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to
supervise or regulate the enjoyment or utilization of all media communication or information
to ensure equal opportunity, time, and space. All these are aimed at the holding of free,
orderly, honest, peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment
clause. The non-impairment clause of the Constitution must yield to the loftier purposes
targeted by the Government.5 Equal opportunity to proffer oneself for public office, without
regard to the level of financial resources one may have at his disposal, is indeed of vital
interest to the public. The State has the duty to enact and implement rules to safeguard this
interest. Time and again, this Court has said that contracts affecting public interest contain an
implied reservation of the police power as a postulate of the existing legal order. This power
can be activated at anytime to change the provisions of the contract, or even abrogate it
entirely, for the promotion or protection of the general welfare. Such an act will not militate
against the impairment clause, which is subject to and limited by the paramount police
power.6
Furthermore, this Court notes that the very contracts entered into by petitioner provide
that the endorser’s photograph and image shall be utilized in whatever form, mode and
manner “in keeping with norms of decency, reasonableness, morals and law;”7 and in
whatever form, mode and manner not contrary to law and norms of decency,”8 and “in
whatever form, mode and manner in keeping with norms of decency, reasonableness,
morals and law.”9
Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post
facto law. He urges this Court to believe that the assailed provision makes an individual
criminally liable for an election offense for not removing such advertisement, even if at the
time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a
person, whose name or image is featured in any such advertisement, liable for premature
campaigning under the Omnibus Election Code.10 A close scrutiny of this rationale, however,
demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an
offense and prescribes a penalty for said offense. Laws of this nature must operate
prospectively, except when they are favorable to the accused. It should be noted, however,
that the offense defined in the assailed provision is not the putting up of “propaganda
materials such as posters, streamers, stickers or paintings on walls and other materials
showing the picture, image or name of a person, and all advertisements on print, in radio or
on television showing the image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office.” Nor does it prohibit or
consider an offense the entering of contracts for such propaganda materials by an individual
who subsequently becomes a candidate for public office. One definitely does not commit an
offense by entering into a contract with private parties to use his name and image to endorse
certain products prior to his becoming a candidate for public office. The offense, as expressly
prescribed in the assailed provision, is the non-removal of the described propaganda materials
three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for
public office fails to remove such propaganda materials after the given period, he shall be
liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed,
nowhere is it indicated in the assailed provision that it shall operate retroactively. There is,
therefore, no ex post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to
him, under this law, billboards are already permitted as lawful election propaganda. He claims,
therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of
election propaganda through the assailed provision, violated the Fair Elections Act. Petitioner’s
argument is not tenable. The Solicitor General rightly points out that the assailed provision
does not prohibit billboards as lawful election propaganda. It only regulates their use to
prevent premature campaigning and to equalize, as much as practicable, the situation of all
candidates by preventing popular and rich candidates from gaining undue advantage in
exposure and publicity on account of their resources and popularity.11 Moreover, by
regulating the use of such election propaganda materials, the COMELEC is merely doing its
duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda
are subject to the supervision and regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda.—Election propaganda, whether on television, cable
television, radio, newspapers or any other medium is hereby allowed for all registered political
parties, national, regional, sectoral parties or organizations participating under the party list
elections and for all bona fide candidates seeking national and local elective positions subject
to the limitation on authorized expenses of candidates and political parties observance of truth
in advertising and to the supervision and regulation by the Commission on Elections
(COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
. 3.1.Pamphlets, leaflets, cards, decals, stickers or other written or printed materials
the size of which does not exceed eight and one half inches in width and fourteen
inches in length;
A statute or regulation is considered void for overbreadth when it offends the
constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.12
The provision in question is limited in its operation both as to time and scope. It only
disallows the continued display of a person’s propaganda materials and advertisements after
he has filed a certificate of candidacy and before the start of the campaign period. Said
materials and advertisements must also show his name and image.

. 3.2.Handwritten or printed letters urging voters to vote for or against any particular There is no blanket prohibition of the use of propaganda materials and advertisements.
political party or candidate for public office; During the campaign period, these may be used subject only to reasonable limitations
necessary and incidental to achieving the purpose of preventing premature campaigning and
. 3.3.Cloth, paper or cardboard posters whether framed or posted, with an area not
promoting equality of opportunities among all candidates.
exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion
of a public meeting or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three (3) feet by eight (8) feet in size, shall be The provision, therefore, is not invalid on the ground of overbreadth.
allowed: Provided, That said streamers may be displayed five (5) days before the
date of the meeting or rally and shall be removed within twenty-four (24) hours WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520
after said meeting or rally; is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a
Writ of Preliminary Injunction is hereby DENIED. No costs.
. 3.4.Paid advertisements in print or broadcast media: Provided, That the
advertisements shall follow the requirements set forth in Section 4 of this Act; and

. 3.5.All other forms of election propaganda not prohibited by the Omnibus Election
SO ORDERED.
Code or this Act.

xxx
     Davide, Jr. (C.J.), Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses.—The
COMELEC shall promulgate and furnish all political parties and candidates and the mass media
entities the rules and regulations for the implementation of this Act, consistent with the criteria
     Puno, Panganiban, Sandoval-Gutierrez and Carpio, JJ., On Official Leave.
established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus
Election Code (Batas Pambansa Blg. 881).
Petition dismissed.
Rules and regulations promulgated by the COMELEC under and by authority of this Section
shall take effect on the seventh day after their publication in at least two (2) daily newspapers
of general circulation. Prior to effectivity of said rules and regulations, no political Note.—The COMELEC’s acts enjoy the presumption of regularity in the performance of
advertisement or propaganda for or against any candidate or political party shall be published official duties. (Montesclaros vs. Commission on Elections, 384 SCRA 269 [2002])
or broadcasted through mass media.
——o0o——
Violation of this Act and the rules and regulations of the COMELEC issued to implement
this Act shall be an election offense punishable under the first and second paragraphs of
Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because
of overbreadth.