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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915

April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS


FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing,
respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right


recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as
the principle that laws to be valid and enforceable must be published in the Official
Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus
to compel respondent public officials to publish, and/or cause the publication in the
Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative
orders.

Specifically, the publication of the following presidential issuances is sought:

a]
Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197,
200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361,
368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551,
566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 18291840, 1842-1847.

b]
Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349,
357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486,
488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612,
615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.

c]

General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d]
Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526,
1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 15941600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 17891795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858,
1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e]
Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563,
567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.

f]
Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76,
80-81, 92, 94, 95, 107, 120, 122, 123.

g]

Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any showing
that petitioners are personally and directly affected or prejudiced by the alleged
non-publication of the presidential issuances in question 2 said petitioners are
without the requisite legal personality to institute this mandamus proceeding, they
are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the
Rules of Court, which we quote:

SEC. 3.
Petition for Mandamus.When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use a rd enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time, to do the
act required to be done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the
defendant.

Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public duty,
they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino
vs. Governor General, 3 this Court held that while the general rule is that "a writ of
mandamus would be granted to a private individual only in those cases where he
has some private or particular interest to be subserved, or some particular right to
be protected, independent of that which he holds with the public at large," and "it is
for the public officers exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "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 [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel the
Governor General to call a special election for the position of municipal president in
the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T.
Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and reliance upon the rule
may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a proper
party to these proceedings no other person could be, as we have seen that it is not
the duty of the law officer of the Government to appear and represent the people in
cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in
the aforementioned case apply squarely to the present petition. Clearly, the right
sought to be enforced by petitioners herein is a public right recognized by no less
than the fundamental law of the land. If petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive of any other person to initiate
the same, considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for respondents in
this case.

Respondents further contend that publication in the Official Gazette is not a sine
qua non requirement for the effectivity of laws where the laws themselves provide

for their own effectivity dates. It is thus submitted that since the presidential
issuances in question contain special provisions as to the date they are to take
effect, publication in the Official Gazette is not indispensable for their effectivity.
The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of


said article. In a long line of decisions, 4 this Court has ruled that publication in the
Official Gazette is necessary in those cases where the legislation itself does not
provide for its effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into
effect.

Respondents' argument, however, is logically correct only insofar as it equates the


effectivity of laws with the fact of publication. Considered in the light of other
statutes applicable to the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the Official Gazette,
even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1.
There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the Philippines;
[2] all executive and administrative orders and proclamations, except such as have
no general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and conduct
as citizens. Without such notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It would be the height of

injustice to punish or otherwise burden a citizen for the transgression of a law of


which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansaand for the diligent ones, ready access to
the legislative recordsno such publicity accompanies the law-making process of
the President. Thus, without publication, the people have no means of knowing what
presidential decrees have actually been promulgated, much less a definite way of
informing themselves of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de
su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be
published in the Official Gazette ... ." The word "shall" used therein imposes upon
respondent officials an imperative 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.

The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise impose a burden or. the
people, such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or class of persons
such as administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public


nature" or "of general applicability" is a requirement of due process. It is a rule of
law that before a person may be bound by law, he must first be officially and

specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs.
COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form
part of the law of the land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official government repository promulgate
and publish the texts of all such decrees, orders and instructions so that the people
may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application,


which have not been published, shall have no force and effect. Some members of
the Court, quite apprehensive about the possible unsettling effect this decision
might have on acts done in reliance of the validity of those presidential decrees
which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had
been enforced or implemented prior to their publication. 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 Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, 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 v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & 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, of prior determinations deemed to have finality and
acted upon accordingly, of 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.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained
the right of a party under the Moratorium Law, albeit said right had accrued in his
favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their


publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be erased by
a new judicial declaration ... that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette,
only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939,
inclusive, have not been so published. 10 Neither the subject matters nor the texts
of these PDs can be ascertained since no copies thereof are available. But whatever
their subject matter may be, it is undisputed that none of these unpublished PDs
has ever been implemented or enforced by the government. In Pesigan vs. Angeles,
11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said penalties
binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment
that "the government, as a matter of policy, refrains from prosecuting violations of
criminal laws until the same shall have been published in the Official Gazette or in
some other publication, even though some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette
all unpublished presidential issuances which are of general application, and unless
so published, they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1.
It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware of
the existence of any legislative or executive act having the force and effect of law.
My point is that such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute,
presidential decree or any other executive act of the same category being bereft of
any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published
in the Official Gazette. There is no such requirement in the Constitution as Justice

Plana so aptly pointed out. It is true that what is decided now applies only to past
"presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or
presidential act to be impressed with binding force or effectivity.

2.
It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. It may be said though that the guarantee of due process requires notice
of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that
precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in
the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette. 2

3.
It suffices, as was stated by Judge Learned Hand, that law as the command of
the government "must be ascertainable in some form if it is to be enforced at all. 3
It would indeed be to reduce it to the level of mere futility, as pointed out by Justice
Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine that it must be in
the Official Gazette. To be sure once published therein there is the ascertainable
mode of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential decrees or
executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their
provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled
could still be inquired into. I am not prepared to hold that such an effect is
contemplated by our decision. Where such presidential decree or executive act is
made the basis of a criminal prosecution, then, of course, its ex post facto character
becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on
the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional

terminology, there could arise then a question of unconstitutional application. That


is as far as it goes.

4.
Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive act
of a general application. I am not in agreement with the view that such publication
must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative
enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and
effect of law can legally provide for a different rule.

5.
Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously published in
the Official Gazette would be devoid of any legal character. That would be, in my
opinion, to go too far. It may be fraught, as earlier noted, with undesirable
consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of
Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published
and ascertainable and of equal application to all similarly circumstances and not
subject to arbitrary change but only under certain set procedures. The Court has

consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the
settled principle based on due process enunciated in earlier cases that "before the
public is bound by its contents, especially its penal provisions, a law, regulation or
circular must first be published and the people officially and specially informed of
said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification
for the corollary rule of Article 3 of the Civil Code (based on constructive notice that
the provisions of the law are ascertainable from the public and official repository
where they are duly published) that "Ignorance of the law excuses no one from
compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that


"only laws which are silent as to their effectivity [date] need be published in the
Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic
constitutional requirements of due process. The best example of this is the Civil
Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one
year [not 15 days] after such publication. 2 To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this reason,
publication in the Official Gazette is not necessary for their effectivity 3 would be to
nullify and render nugatory the Civil Code's indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date
of effectivity, it has to be published. What I would like to state in connection with
that proposition is that when a date of effectivity is mentioned in the decree but the
decree becomes effective only fifteen (15) days after its publication in the Official
Gazette, it will not mean that the decree can have retroactive effect to the date of
effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. * It may be said though
that the guarantee of due process requires notice of laws to affected parties before
they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. Neither is the
publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided " Two things may be said of this provision: Firstly, it obviously
does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period
for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is
simply "An Act to Provide for the Uniform Publication and Distribution of the Official
Gazette." Conformably therewith, it authorizes the publication of the Official
Gazette, determines its frequency, provides for its sale and distribution, and defines
the authority of the Director of Printing in relation thereto. It also enumerates what
shall be published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have no

general applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is
essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the
operation of a subsequent statute that has a provision of its own as to when and
how it will take effect. Only a higher law, which is the Constitution, can assume that
role.

In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This
is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity


of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1.
It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware of
the existence of any legislative or executive act having the force and effect of law.
My point is that such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute,
presidential decree or any other executive act of the same category being bereft of
any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published
in the Official Gazette. There is no such requirement in the Constitution as Justice
Plana so aptly pointed out. It is true that what is decided now applies only to past
"presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or
presidential act to be impressed with binding force or effectivity.

2.
It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. It may be said though that the guarantee of due process requires notice
of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that
precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in
the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette. 2

3.
It suffices, as was stated by Judge Learned Hand, that law as the command of
the government "must be ascertainable in some form if it is to be enforced at all. 3
It would indeed be to reduce it to the level of mere futility, as pointed out by Justice
Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine that it must be in
the Official Gazette. To be sure once published therein there is the ascertainable
mode of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential decrees or
executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their
provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled
could still be inquired into. I am not prepared to hold that such an effect is
contemplated by our decision. Where such presidential decree or executive act is
made the basis of a criminal prosecution, then, of course, its ex post facto character
becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on
the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional
terminology, there could arise then a question of unconstitutional application. That
is as far as it goes.

4.
Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive act
of a general application. I am not in agreement with the view that such publication

must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative
enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and
effect of law can legally provide for a different rule.

5.
Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously published in
the Official Gazette would be devoid of any legal character. That would be, in my
opinion, to go too far. It may be fraught, as earlier noted, with undesirable
consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of
Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published
and ascertainable and of equal application to all similarly circumstances and not
subject to arbitrary change but only under certain set procedures. The Court has
consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the
settled principle based on due process enunciated in earlier cases that "before the
public is bound by its contents, especially its penal provisions, a law, regulation or
circular must first be published and the people officially and specially informed of
said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification
for the corollary rule of Article 3 of the Civil Code (based on constructive notice that
the provisions of the law are ascertainable from the public and official repository
where they are duly published) that "Ignorance of the law excuses no one from
compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that


"only laws which are silent as to their effectivity [date] need be published in the
Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic
constitutional requirements of due process. The best example of this is the Civil
Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one
year [not 15 days] after such publication. 2 To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this reason,
publication in the Official Gazette is not necessary for their effectivity 3 would be to
nullify and render nugatory the Civil Code's indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date
of effectivity, it has to be published. What I would like to state in connection with
that proposition is that when a date of effectivity is mentioned in the decree but the
decree becomes effective only fifteen (15) days after its publication in the Official
Gazette, it will not mean that the decree can have retroactive effect to the date of
effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. * It may be said though
that the guarantee of due process requires notice of laws to affected parties before
they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. Neither is the
publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided " Two things may be said of this provision: Firstly, it obviously
does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period
for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is
simply "An Act to Provide for the Uniform Publication and Distribution of the Official
Gazette." Conformably therewith, it authorizes the publication of the Official
Gazette, determines its frequency, provides for its sale and distribution, and defines
the authority of the Director of Printing in relation thereto. It also enumerates what
shall be published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have no
general applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is
essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the
operation of a subsequent statute that has a provision of its own as to when and

how it will take effect. Only a higher law, which is the Constitution, can assume that
role.

In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This
is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity


of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G. R. No. 156982

September 8, 2004

NATIONAL AMNESTY COMMISSION, petitioner,


vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and
ERNESTO C. EULALIA, Resident Auditor, National Amnesty Commission. respondents.
DECISION
CORONA, J.:
This petition for review1 seeks to annul the two decisions of respondent Commission on Audit
(COA)2 dated July 26, 20013 and January 30, 2003,4 affirming the September 21, 1998 ruling5 of the
National Government Audit Office (NGAO). The latter in turn upheld Auditor Ernesto C. Eulalia's
order disallowing the payment of honoraria to the representatives of petitioner's ex officio members,
per COA Memorandum No. 97-038.
Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994
by then President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive,
process and review amnesty applications. It is composed of seven members: a Chairperson, three
regular members appointed by the President, and the Secretaries of Justice, National Defense and
Interior and Local Government as ex officiomembers.6
It appears that after personally attending the initial NAC meetings, the three ex officio members
turned over said responsibility to their representatives who were paid honoraria beginning December
12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia disallowed on audit the
payment of honoraria to these representatives amounting to P255,750 for the period December 12,
1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the
NGAO upheld the auditor's order and notices of disallowance were subsequently issued to the
following:7
REPRESENTATIVES
1.
2.
3.
4.
5.
6.
7.

AMOUNT

Cesar Averilla
Department of National Defense

P 2,500.00

Ramon Martinez
Department of National Defense

73,750.00

Cielito Mindaro,
Department of Justice

18,750.00

Purita Deynata
Department of Justice

62,000.00

Alberto Bernardo
Department of the Interior And Local Government

71,250.00

Stephen Villaflor
Department of the Interior and Local Government

26,250.00

Artemio Aspiras
Department of Justice

1,250.00

P255,750.00
Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing
Rules and Regulations of Proclamation No. 347), which was approved by then President Joseph
Estrada on October 19, 1999. Section 1, Rule II thereof provides:
Section 1, Composition - The NAC shall be composed of seven (7) members:
a) A Chairperson who shall be appointed by the President;
b) Three (3) Commissioners who shall be appointed by the President;
c) Three (3) Ex-officio Members
1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government
The ex officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits
as may be authorized by law. (Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident
auditor and the NGAO disallowing payment of honoraria to the ex officio members' representatives,
to no avail.
Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed
grave abuse of discretion in: (1) implementing COA Memorandum No. 97-038 without the required
notice and publication under Article 2 of the Civil Code; (2) invoking paragraph 2, Section 7, Article
IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum; (3)
applying the Memorandum to the NAC ex officio members' representatives who were all appointive
officials with ranks below that of an Assistant Secretary; (4) interpreting laws and rules outside of its
mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and (5)
disallowing the payment of honoraria on the ground of lack of authority of representatives to attend
the NAC meetings in behalf of the ex officio members.8
We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct
that there is no legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex
officio members' official representatives.
The Constitution mandates the Commission on Audit to ensure that the funds and properties of the
government are validly, efficiently and conscientiously used. Thus, Article IX-D of the Constitution
ordains the COA to exercise exclusive and broad auditing powers over all government entities or
trustees, without any exception:
Section 2. (1) The Commission on Audit shall have the power, authority and duty
to examine, audit, and settle all accounts pertaining to the revenue and receipts of,

and expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities,
including government-owned and controlled corporations with original charters, and on a
post-audit basis: (a) constitutional bodies, commissions and offices that have been granted
fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c)
other government-owned or controlled corporations and their subsidiaries; and (d) such nongovernmental entities receiving subsidy or equity, directly or indirectly, from or through the
government, which are required by law of the granting institution to submit to such audit as a
condition of subsidy or equity. However, where the internal control system of the audited
agencies is inadequate, the Commission may adopt such measures, including temporary or
special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep
the general accounts of the Government and, for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in this Article,
to define the scope of its audit and examination, establish the techniques and
methods required therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of irregular,
unnecessary, inexpensive, extravagant, or unconscionable expenditures, or uses of
government funds and properties.
Section 3. No law shall be passed exempting any entity of the Government or its
subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of
the Commission on Audit.(Emphasis supplied).
It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on
September 19, 1997:
COMMISSION ON AUDIT MEMORANDUM NO. 97-038
SUBJECT: Implementation of Senate Committee Report No. 509, Committee on
Accountability of Public Officers and Investigations and Committee on Civil Service and
Government Reorganization.
The Commission received a copy of Senate Committee Report No. 509 urging the
Commission on Audit to immediately cause the disallowance of any payment of any
form of additional compensation or remuneration to cabinet secretaries, their deputies
and assistants, or their representatives, in violation of the rule on multiple positions,
and to effect the refund of any and all such additional compensation given to and
received by the officials concerned, or their representatives, from the time of the
finality of the Supreme Court ruling in Civil Liberties Union v. Executive Secretaryto
the present. In the Civil Liberties Union case, the Supreme Court ruled that Cabinet
Secretaries, their deputies and assistants may not hold any other office or
employment. It declared Executive Order 284 unconstitutional insofar as it allows
Cabinet members, their deputies and assistants to hold other offices in addition to
their primary office and to receive compensation therefor. The said decision became
final and executory on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government agencies
and government owned or controlled corporations which have effected payment of subject
allowances, are directed to implement the recommendation contained in the subject Senate
Committee Report by undertaking the following audit action:

1. On accounts that have not been audited and settled under certificate of
settlements and balances on record from August 19, 1991 to present - to
immediately issue the Notices of disallowance and corresponding certificate of
settlements and balances.
2. On accounts that have been audited and settled under certificate of settlements
and balances on record - to review and re-open said accounts, issue the
corresponding notices of disallowance, and certify a new balance thereon. It is
understood that the re-opening of accounts shall be limited to those that were
settled within the prescriptive period of three (3) years prescribed in Section 52
of P.D. 1445.
3. On disallowances previously made on these accounts - to submit a report on the
status of the disallowances indicating whether those have been refunded/settled or
have become final and executory and the latest action taken by the Auditor thereon.
All auditors concerned shall ensure that all documents evidencing the disallowed payments
are kept intact on file in their respective offices.
Any problem/issue arising from the implementation of this Memorandum shall be brought
promptly to the attention of the Committee created under COA Officer Order No. 97-698 thru
the Director concerned, for immediate resolution.
An initial report on the implementation of this Memorandum shall be submitted to the
Directors concerned not later than October 31, 1997. Thereafter, a quarterly progress report
on the status of disallowances made shall be submitted, until all the disallowances shall have
been enforced.
The Committee created under COA Office Order No. 97-698, dated September 10, 1997,
shall supervise the implementation of this Memorandum which shall take effect immediately
and shall submit a consolidated report thereon in response to the recommendation of the
Senate Committee on Accountability of Public Officers and Investigation and Committee on
Civil Service and Government Reorganization.9 (Emphasis supplied)
Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and
effectivity, the publication required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.
We clarified this publication requirement in Taada vs. Tuvera:10
[A]ll statutes, including those of local application and private laws, shall be published
as a condition for their effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by
the President in the exercise of legislative powers whenever the same are validly
delegated by the legislature or, at present, directly conferred by the Constitution.

Administrative rules and regulations must also be published if their purpose is to


enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. (Emphasis supplied.)
COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of
instruction which does not need publication to be effective and valid. It is not an implementing rule or
regulation of a statute but a directive issued by the COA to its auditors to enforce the self-executing
prohibition imposed by Section 13, Article VII of the Constitution on the President and his official
family, their deputies and assistants, or their representatives from holding multiple offices and
receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to
categorically explain this constitutional prohibition in Civil Liberties Union vs. The Executive
Secretary:11
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition
to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution, which provides as follows:
"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office."
xxx

xxx

xxx

[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7, par. (2), Article IXB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
xxx

xxx

xxx

But what is indeed significant is the fact that although Section 7, Article IX-B already
contains a blanket prohibition against the holding of multiple offices or employment in
the government subsuming both elective and appointive public officials, the

Constitutional Commission should see it fit to formulate another provision, Sec. 13,
Article VII, specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.
xxx

xxx

xxx

Thus, while all other appointive officials in the civil service are allowed to hold other
office or employment in the government during their tenure when such is allowed by
law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice-President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article IX-B of the 1987 Constitution. . . .
xxx

xxx

xxx

The prohibition against holding dual or multiple offices or employment under Section
13, Article VII of the Constitution must not, however, be construed as applying to
posts occupied by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and as required by the
primary functions of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the constitutional prohibition
but are properly an imposition of additional duties and functions on said officials.
xxx

xxx

xxx

[T]he prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by
law and as required by the primary functions of the concerned official's office. The
term ex-officio means "from office; by virtue of office." It refers to an "authority derived from
official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex-officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or authority than
that conferred by the office." An ex-officio member of a board is one who is a member by
virtue of his title to a certain office, and without further warrant or appointment. To
illustrate, by express provision of law, the Secretary of Transportation and Communications
is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail
Transit Authority.
xxx

xxx

xxx

The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for
his services in the said position. The reason is that these services are already paid for
and covered by the compensation attached to his principal office. x x x

xxx

xxx

xxx

[E]x-officio posts held by the executive official concerned without additional


compensation as provided by law and as required by the primary functions of his
office do not fall under the definition of "any other office" within the contemplation of
the constitutional prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties
Union doctrine, form part of our legal system.12 Supreme Court decisions assume the same authority
as valid statutes.13 The Court's interpretation of the law is part of that law as of the date of enactment
because its interpretation merely establishes the contemporary legislative intent that the construed
law purports to carry into effect.14
COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right
of any individual, except those provided for under the Constitution. Hence, publication of said
Memorandum is not required for it to be valid, effective and enforceable.
In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple
positions in the government and receiving double compensation: (1) the blanket prohibition of
paragraph 2, Section 7, Article IX-B on all government employees against holding multiple
government offices, unless otherwise allowed by law or the primary functions of their positions, and
(2) the stricter prohibition under Section 13, Article VII on the President and his official family from
holding any other office, profession, business or financial interest, whether government or private,
unless allowed by the Constitution.
The NAC ex officio members' representatives who were all appointive officials with ranks below
Assistant Secretary are covered by the two constitutional prohibitions.
First, the NAC ex officio members' representatives are not exempt from the general prohibition
because there is no law or administrative order creating a new office or position and authorizing
additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against
multiple positions in the government and receiving additional or double compensation:
SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment
or designation in any capacity to any public office or position during his tenure.
xxx

xxx

xxx

(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.
xxx

xxx

xxx

SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or


employee shall receive additional or double compensation unless specifically authorized by
law nor accept without the consent of the President, any present, emolument, office, or title
of any kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.
The representatives in fact assumed their responsibilities not by virtue of a new appointment but by
mere designation from the ex officio members who were themselves also designated as such.
There is a considerable difference between an appointment and designation. An appointment is the
selection by the proper authority of an individual who is to exercise the powers and functions of a
given office; a designation merely connotes an imposition of additional duties, usually by law, upon a
person already in the public service by virtue of an earlier appointment. 15
Designation does not entail payment of additional benefits or grant upon the person so designated
the right to claim the salary attached to the position. Without an appointment, a designation does not
entitle the officer to receive the salary of the position. The legal basis of an employee's right to claim
the salary attached thereto is a duly issued and approved appointment to the position, 16 and not a
mere designation.
Second, the ex officio members' representatives are also covered by the strict constitutional
prohibition imposed on the President and his official family.
Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and
assistants, who hold positions in ex officio capacities, are proscribed from receiving additional
compensation because their services are already paid for and covered by the compensation
attached to their principal offices. Thus, in the attendance of the NAC meetings, the ex
officio members were not entitled to, and were in fact prohibited from, collecting extra compensation,
whether it was called per diem, honorarium, allowance or some other euphemism. Such additional
compensation is prohibited by the Constitution.
Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the
payment ofhonoraria and per diems to the officers concerned who sat as ex officio members or
alternates. The agent, alternate or representative cannot have a better right than his principal, the ex
officio member. The laws, rules, prohibitions or restrictions that cover the ex officio member apply
with equal force to his representative. In short, since the ex officio member is prohibited from
receiving additional compensation for a position held in an ex officiocapacity, so is his representative
likewise restricted.
The Court also finds that the re-opening of the NAC accounts within three years after its settlement
is within COA's jurisdiction under Section 52 of Presidential Decree No. 1445, promulgated on June
11, 1978:
SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration
of three years after the settlement of any account by an auditor, the Commission may motu
propio review and revise the account or settlement and certify a new balance.
More importantly, the Government is never estopped by the mistake or error on the part of its
agents.19Erroneous application and enforcement of the law by public officers do not preclude
subsequent corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled
that:

Petitioner further contends that with the new IRR issued by the NAC authorizing the exofficio members to designate representatives to attend commission meetings and entitling
them to receive per diems, honoraria and other allowances, there is now no legal
impediment since it was approved by the President. This Commission begs to disagree. Said
provision in the new IRR is null and void for having been promulgated in excess of its rulemaking authority. Proclamation No. 347, the presidential issuance creating the NAC, makes
no mention that representatives of ex-officio members can take the place of said ex-officio
members during its meetings and can receive per diems and allowances. This being the
case, the NAC, in the exercise of its quasi-legislative powers, cannot add, expand or enlarge
the provisions of the issuance it seeks to implement without committing an ultra vires act. 20
We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely
provides that:
The ex officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits as
may be authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the NAC and the COA interpreted it.
First, the administrative order itself acknowledges that payment of allowances to the representatives
must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, as
already discussed, the payment of such allowances is not allowed, prohibited even.
Second, the administrative order merely allows the ex officio members to designate their
representatives to NAC meetings but not to decide for them while attending such meetings. Section
4 of the administrative order categorically states:
Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a
quorum consisting of at least four members.
Thus, although the administrative order does not preclude the representatives from attending
the NAC meetings, they may do so only as guests or witnesses to the proceedings. They
cannot substitute for the ex officio members for purposes of determining quorum,
participating in deliberations and making decisions.
Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are
entitled to allowances, pursuant to our pronouncement in Civil Liberties Union:
"where there is no de jure officer, a de facto officer, who in good faith has had possession of
the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in appropriate action recover the salary, fees and other
compensation attached to the office."
A de facto officer "derives his appointment from one having colorable authority to appoint, if
the office is an appointive office, and whose appointment is valid on its face. (He is) one who
is in possession of an office and is discharging its duties under color of authority, by which is
meant authority derived from an appointment, however irregular or informal, so that the
incumbent be not a mere volunteer."21

The representatives cannot be considered de facto officers because they were not appointed but
were merely designated to act as such. Furthermore, they are not entitled to something their own
principals are prohibited from receiving. Neither can they claim good faith, given the express
prohibition of the Constitution and the finality of our decision in Civil Liberties Union prior to their
receipt of such allowances.
WHEREFORE the petition is hereby DISMISSED for lack of merit.
SO ORDERED.

THIRD DIVISION
[A.M. No. MTJ-00-1323. August 22, 2002]

Judge PEDRO B. CABATINGAN SR. (Ret.), complainant, vs. Judge CELSO A. ARCUENO,
MCTC, Cataingan, Masbate, respondent.
DECISION
PANGANIBAN, J.:

Ignorance of the law excuses no one -- certainly not a judge -- from compliance
therewith. This is particularly true in cases where the law is so elementary that to
be unaware of it or to ignore it constitutes gross ignorance, which is administratively
sanctionable.

Statement of the Case

A sworn Administrative Complaint[1] filed by Judge Pedro B. Cabatingan Sr. (ret.)


charges Judge Celso A. Arcueno of the Municipal Circuit Trial Court of Cataingan,
Masbate, with gross ignorance of the law.

The Facts

The facts are summarized by the Office of the Court Administrator (OCA) in its
Memorandum[2] dated September 25, 2001, as follows:

Complainant, who is the counsel for the accused [Benito Bucado[3]] xxx, narrates
that a complaint for Illegal Fishing was filed in respondents court for preliminary
investigation and was docketed as Criminal Case No. 4877-PVC. Finding a prima
facie case against all the accused, respondent issued a warrant of arrest fixing the
bail bond at P50,000 for each of them. Benito Bucado, one of the accused, posted a
property bond. Respondent, however, in violation of Section 17, rule 114 of the
rules of Court, allegedly refused to accept the bail bond upon the contention that he
no longer ha[d] jurisdiction over the case inasmuch as the records were already
forwarded to the Office of the Assistant provincial Prosecutor for review.

When required to comment, respondent Judge Celso A. Arcueno, denied the


charges. He narrates that the aforementioned criminal case was filed in his court
for preliminary investigation. Finding the existence of probable cause, he issued a
warrant of arrest with the recommended bail of P50,000.00 for each of the accused.
Upon the arrest of the accused, he issued an Order dated September 15, 1998
requiring them to submit their counter-affidavits and that of their witnesses within
ten (10) days from receipt thereof. However, the accused failed to submit their
counter-affidavits. They also failed to post bail for their temporary liberty.

After the lapse of the ten (10) day period as provided in Section 3 (f) of Rule 112,
Rules of [C]ourt, respondent, finding the existence of probable cause against the
accused, issued a resolution dated 13 October 1998 forwarding the entire records of
the case to the RTC, Branch 49, Cataingan, Masbate thru the Assistant Provincial
Prosecutor, for review. On 15 October 1998, the Office of the Assistant Provincial
prosecutor received the records of the subject criminal case. On 4 November 1998,
while the case was being reviewed by the Office of the Assistant Provincial
Prosecutor, complainant presented the bail bond of the accused Benito y Ferrer for
respondents approval.

Respondent claims that he initially refused to approve the property bond because
he believed that he had already lost jurisdiction over the case. Also, the tax
declaration of the property being put up as a bond was not attached to the bail
bond form to show proof of ownership thereof by the bondsman. However, on 20
November 1998, he approved said bail bond and consequently ordered the release
of accused Bucado.

On 18 September 2000, the Third Division of this Court resolved to DOCKET the
complaint as an administrative matter and to require the parties to MANIFEST to the
Court within twenty (20) days from notice, whether they [were] submitting the case
on the basis of the pleadings/records already filed and submitted.

In compliance with the aforementioned resolution, respondent Judge filed a


Manifestation with Motion to Dismiss dated 30 October 2000. On 17 January 2001,
the Court resolved to NOTE the respondents Manifestation with Motion to Dismiss
and to consider as WAIVED the filing of Manifestation by complainant for his failure
to submit the same within the period specified under the Resolution of 18
September 2000.[4]

In his Manifestation with Motion to Dismiss,[5] respondent justified his refusal to


approve the bail bond. His reason for his refusal was that, in notarizing the bail
bond document, complainant grossly violated Section 10 of Rule 114 of the 1985
Rules on Criminal Procedure. In so doing, he arrogated unto himself the power and
authority pertaining to a judge. Respondent reiterated his previous Manifestation,
dated July 12 2000, praying for the dismissal of the case on the ground that the
parties had mutually and amicably settled the case. He submitted, as proof of the
settlement, the Joint Motion to Dismiss signed by both parties.

The Court Administrators Recommendation

After a perusal of the records of the case, Deputy Court Administrator Jose P. Perez,
in his Report dated September 25, 2001, explained that the refusal of respondent
judge to approve the bail bond posted by the accused showed the latters ignorance
of the rules of procedure. Thus, the former submitted the following
recommendations:

1. Respondents Motion to Dismiss be DENIED for lack of merit; and

2. Respondent Judge Celso A. Arcueno be found guilty of gross ignorance of the law
and be ordered to pay a FINE of Ten Thousand Pesos (P10,000.00) with a STERN

WARNING that a repetition of the same or [a] similar act shall be dealt with more
severely.[6]

This Courts Ruling

We agree with the OCAs findings and recommendation, but with some
modifications as to the penalty.

Administrative Liability

Complainant asserts that respondent judge is guilty of gross ignorance of the law for
refusing to approve the bail bond of the accused in violation of Section 17 of Rule
114 of the Rules of Court. Complainant also claims that this lapse unduly deprived
the accused of the constitutional right to bail.[7]

On the other hand, in his Comment[8] dated June 1, 1999, respondent explains that
he refused to approve the bail bond, because he had lost jurisdiction over the case
after forwarding for review the records thereof to the Office of the Assistant
Provincial Prosecutor. He asserts that once jurisdiction is lost, no further action can
be entertained in connection therewith.[9] He adds that the tax declaration for the
property put up as a bond was not attached to the bail bond form to show proof of
the bondsmans ownership or title.[10]

However, in his Manifestation with Motion to Dismiss,[11] dated October 30, 2000,
respondent judge proffered a different justification for his refusal to approve the bail
bond. He theorized that complainant, as counsel for the accused Benito Bucado in
Criminal Case No. 4877-PVC and as notary public, had grossly and seriously violated
Section 10 of Rule 114 of the 1985 Rules on Criminal procedure, as amended.
Complainant supposedly violated this provision by arrogating unto himself the
power and authority that pertained to a judge.

We are not persuaded. As correctly pointed out by the OCA, the argument of
respondent judge in his Manifestation with Motion to Dismiss is clearly an
afterthought; and, hence, deserves no credence.

To be able to render substantial justice and maintain public confidence in the legal
system, judges should be embodiments of competence, integrity and
independence.[12] Hence, they are expected to exhibit more than just a cursory
acquaintance with statutes and procedural rules and to apply them properly in all
good faith.[13] They are likewise expected to demonstrate mastery of the principles
of law, keep abreast of prevailing jurisprudence,[14] and discharge their duties in
accordance therewith.[15]

Further, judges should administer their office with due regard to the integrity of the
system of law itself, remembering that they are not depositories of arbitrary power,
but are judges under the sanction of law.[16] It must be emphasized that this Court
has formulated and promulgated rules of procedure to ensure the speedy and
efficient administration of justice. Wanton failure to abide by these rules
undermines the wisdom behind them and diminishes respect for the rule of law.[17]

Before we can decide whether respondent judge erred in refusing to grant bail, we
deem it necessary to determine first whether he had jurisdiction to grant it under
the circumstances of this case.[18] Bail is defined as the security given for the
release of a person in custody of the law.[19] Section 17, paragraph (c) of Rule 114
of the Revised rules of Court, provides:

SEC. 17. Bail, where filed. (c) Any person in custody who is not yet charged in
court may apply for bail with any court in the province, city or municipality where he
is held.

In the case at bar, Benito Bucado was arrested in the Municipality of Cataingan after
a preliminary investigation conducted by respondent judge. The latter therefore
had the authority to grant bail and to order the release of the accused.[20] Even if
the records of the case had been transmitted for review to the Office of the
provincial Prosecutor, respondent could have approved the bail bond posted by the
accused. Such action cannot be validly attacked on jurisdictional grounds.[21]

Considering that one of his responsibilities as a judge was to conduct preliminary


investigations, it was therefore his duty to keep abreast of the laws, rulings and
jurisprudence on this matter. Because he had apparently lagged behind,[22] he fell

short of his vow to live up to the injunction of the code of Judicial Conduct to
maintain professional competence.[23]

When the law is so elementary, as in this case, not to be aware of it constitutes


gross ignorance thereof.[24] Indeed, everyone is presumed to know the law.[25]
Ignorance of the law, which everyone is bound to know, excuses no one -- certainly
not a judge.[26]

On July 7, 2000, a Joint Motion to Dismiss[27] was executed by complainant and


respondent. It should be remembered that a complaint for misconduct and similar
charges against a judicial or other public officer or employee cannot just be
withdrawn at any time. A simple expediency such as a complainants sudden claim
of change of mind[28] followed by a withdrawal of the complaint would not result in
the automatic dismissal of the case.[29]

Further, the faith and confidence of the people in their government and its agencies
and instrumentalities need to be maintained. The people should not be made to
depend upon the whims and caprices of complainants who are, in a real sense, only
witnesses therein.[30] To rule otherwise would subvert the fair and prompt
administration of justice as well as undermine the discipline of court personnel.[31]

In any case, it bears noting that the administrative liability for ignorance of the law
does not necessarily arise from the mere fact that a judge issued an order that is
adjudged to be erroneous.[32] Judges may not be held administratively accountable
for every erroneous order; it is only when they act fraudulently or with gross
ignorance that administrative sanctions are called for.[33]

To be held liable for gross ignorance of the law, the judge must be shown to have
committed an error that was gross or patent, deliberate or malicious.[34] Also
administratively liable therefor is a judge who -- shown to have been motivated by
bad faith, fraud, dishonesty or corruption -- ignored, contradicted or failed to apply
settled law and jurisprudence.[35]

It must be pointed out that this is not the first infraction of Judge Arcueno.
Previously, in Gimeno v. Arcueno Sr.,[36] he was charged with and found guilty of
ignorance of the law when, without any hearing, he granted bail to the accused who

had been charged with a capital offense in a criminal case for robbery with
homicide.[37] Respondent was consequently fined in the amount of P5,000 and
warned that a repetition of the same or a similar act in the future would be severely
dealt with.

Indeed, it seems that respondent judge has remained undeterred in disregarding


the law which he has pledged to uphold and the Code which he has promised to live
by.[38] He appears to be unfazed by the previous penalty and warnings he received.
[39] Because this is his second infraction, it warrants a heavier penalty.[40]

WHEREFORE, Judge Celso A. Arcueno is hereby found GUILTY of gross ignorance of


the law and is FINED in the amount of fifteen thousand pesos (P15,000), payable
within five days from notice. He is further warned that a repetition of this or similar
offenses will be dealt with even more severely.

SO ORDERED.

Puno, (Chairman), and Carpio, JJ., concur.


Sandoval-Gutierrez, J., on leave.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68385 May 12, 1989
ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late
WARREN TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.
Agrava, Lucero & Gineta for petitioners.

The Office of the Solictor General for public respondents.

CRUZ, J.:
What the petitioner presents as a rather complicated problem is in reality a very simple question
from the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue
to be resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred
in dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.
Appeal from what? That indeed is the question.
But first the facts.
On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the
Philippines, died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son,
Ward Graham, filed an estate tax return on September 16, 1976, with the Philippine Revenue
Representative in San Francisco, U.S.A. 2
On the basis of this return, the respondent Commissioner of Internal Revenue assessed the
decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978. 3 This assessment
was protested on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the
estate . 4 The protest was denied by the Commissioner on July 7, 1978. 5 No further action was taken
by the estate in pursuit of that protest.
Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit
Court of Oregon 6Ward Graham, the designated executor, then appointed Ildefonso Elegado, the
herein petitioner, as his attorney-in-fact for the allowance of the will in the Philippines. 7
Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First
Instance of Rizal. 8The will was allowed on December 18, 1978, with the petitioner as ancillary
administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on
June 4, 1980. 10
On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87. 11 This was protested on behalf of the estate by the Agrava, Lucero and
Gineta Law Office on August 13, 1980. 12
While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978. 13 He said that this
liability had not yet been paid although the assessment had long become final and executory.
The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980,
against the second assessment of P72,948.87. 14 On this understanding, he filed on September 15,
1981, a petition for review with the Court of Tax Appeals challenging the said assessment. 15

The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was
filed during a delay of 195 days) and in the end instead cancelled the protested assessment in a
letter to the decedent's estate dated March 31, 1982. 16 This cancellation was notified to the Court of
Tax Appeals in a motion to dismiss on the ground that the protest had become moot and academic. 17
The motion was granted and the petition dismissed on April 25, 1984. 18 The petitioner then came to
this Court oncertiorari under Rule 45 of the Rules of Court.
The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the
decedent should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks
should be assessed as of the time of the owner's death or six months thereafter; and (3) whether the
appeal filed with the respondent court should be considered moot and academic.
We deal first with the third issue as it is decisive of this case.
In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:
Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex
Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila
Sir:
This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a
resident of Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of
demand were issued by this Bureau. One is for the amount of P96,509.35 based on
the first return filed, and the other in the amount of P72,948.87, based on the second
return filed.
It appears that the first assessment of P96,509.35 was issued on February 9, 1978
on the basis of the estate tax return filed on September 16, 1976. The said
assessment was, however, protested in a letter dated March 7, 1978 but was denied
on July 7, 1978. Since no appeal was made within the regulatory period, the same
has become final.
In view thereof, it is requested that you settle the aforesaid assessment for
P96,509.35 within fifteen (15) days upon receipt hereof to the Receivable Accounts
Division, this Bureau, BIR National Office Building, Diliman, Quezon City. The
assessment for P72,949.57 dated July 3, 1980, referred to above is hereby
cancelled.
Very truly yours,
(SGD.) RUBEN B. ANCHETA Acting Commissioner

19

It is obvious from the express cancellation of the second assessment for P72,948.87 that the
petitioner had been deprived of a cause of action as it was precisely from this assessment that he
was appealing.
In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved. 20 As a matter
of fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.
The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the
second assessment did not have the effect of automatically reviving the first. Moreover, the first
assessment is not binding on him because it was based on a return filed by foreign lawyers who had
no knowledge of our tax laws or access to the Court of Tax Appeals.
The petitioner is clutching at straws.
It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the
estate tax return filed subject to investigation by this Office for final determination of the correct
estate tax due from the estate. Any amount that may be found due after said investigation will be
assessed and collected later." 21 It is illogical to suggest that aprovisional assessment can supersede
an earlier assessment which had clearly become final and executory.
The second contention is no less flimsy. The petitioner cannot be serious when he argues that the
first assessment was invalid because the foreign lawyers who filed the return on which it was based
were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused
from compliance therewith because of their ignorance?
If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws
in our own country. A more obvious and shallow discrimination than that suggested by the petitioner
is indeed difficult to find.
But the most compelling consideration in this case is the fact that the first assessment is already final
and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment
has become final and executory.
In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion
with the probate court, the respondent Commissioner stressed that "in a letter dated January 29,
1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that
they have paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313

Buendia Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although
he added that such payment had not yet been received. 22 This letter was an acknowledgment by the
estate of the validity and finality of the first assessment. Significantly, it has not been denied by the
petitioner.
In view of the finality of the first assessment, the petitioner cannot now raise the question of its
validity before this Court any more than he could have done so before the Court of Tax Appeals.
What the estate of the decedent should have done earlier, following the denial of its protest on July
7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it
received notice of said denial. It was in such appeal that the petitioner could then have raised the
first two issues he now raises without basis in the present petition.
The question of whether or not the shares of stock left by the decedent should be considered
conjugal property or belonging to him alone is immaterial in these proceedings. So too is the time at
which the assessment of these shares of stock should have been made by the BIR. These questions
were not resolved by the Court of Tax Appeals because it had no jurisdiction to act on the petitioner's
appeal from an assessment that had already been cancelled. The assessment being no longer
controversial or reviewable, there was no justification for the respondent court to rule on the petition
except to dismiss it.
If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment
has long become final and executory. If that assessment was not challenged on time and in
accordance with the prescribed procedure, that error for error it was was committed not by the
respondents but by the decedent's estate itself which the petitioner represents. So how can he now
complain.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,
Narvasa (Chairman), Grio-Aquino and Medialdea, JJ., concur.

FIRST DIVISION

[G.R. No. 138509. July 31, 2000]

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D. BOBIS, respondent.

DECISION

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce
B. Javier. Without said marriage having been annulled, nullified or terminated, the
same respondent contracted a second marriage with petitioner Imelda MarbellaBobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally
Hernandez. Based on petitioners complaint-affidavit, an information for bigamy was
filed against respondent on February 25, 1998, which was docketed as Criminal
Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime
thereafter, respondent initiated a civil action for the judicial declaration of absolute
nullity of his first marriage on the ground that it was celebrated without a marriage
license. Respondent then filed a motion to suspend the proceedings in the criminal
case for bigamy invoking the pending civil case for nullity of the first marriage as a
prejudicial question to the criminal case. The trial judge granted the motion to
suspend the criminal case in an Order dated December 29, 1998.[1] Petitioner filed
a motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent
should have first obtained a judicial declaration of nullity of his first marriage before
entering into the second marriage, inasmuch as the alleged prejudicial question
justifying suspension of the bigamy case is no longer a legal truism pursuant to
Article 40 of the Family Code.[2]

The issue to be resolved in this petition is whether the subsequent filing of a civil
action for declaration of nullity of a previous marriage constitutes a prejudicial
question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a


logical antecedent of the issue involved therein.[3] It is a question based on a fact
distinct and separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused.[4] It must appear not only that
the civil case involves facts upon which the criminal action is based, but also that
the resolution of the issues raised in the civil action would necessarily be
determinative of the criminal case.[5] Consequently, the defense must involve an
issue similar or intimately related to the same issue raised in the criminal action and
its resolution determinative of whether or not the latter action may proceed.[6] Its
two essential elements are:[7]

(a) the civil action involves an issue similar or intimately related to the issue raised
in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may
proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the
accused but simply tests the sufficiency of the allegations in the information in
order to sustain the further prosecution of the criminal case. A party who raises a
prejudicial question is deemed to have hypothetically admitted that all the essential
elements of a crime have been adequately alleged in the information, considering
that the prosecution has not yet presented a single evidence on the indictment or
may not yet have rested its case. A challenge of the allegations in the information
on the ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of the
second marriage, requires a prior judicial declaration of nullity of a previous
marriage before a party may remarry. The clear implication of this is that it is not for
the parties, particularly the accused, to determine the validity or invalidity of the
marriage.[8] Whether or not the first marriage was void for lack of a license is a
matter of defense because there is still no judicial declaration of its nullity at the
time the second marriage was contracted. It should be remembered that bigamy
can successfully be prosecuted provided all its elements concur two of which are a
previous marriage and a subsequent marriage which would have been valid had it
not been for the existence at the material time of the first marriage.[9]

In the case at bar, respondents clear intent is to obtain a judicial declaration of


nullity of his first marriage and thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have his cake and eat it too.
Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of
the Family Code, contract a subsequent marriage and escape a bigamy charge by
simply claiming that the first marriage is void and that the subsequent marriage is
equally void for lack of a prior judicial declaration of nullity of the first. A party may
even enter into a marriage aware of the absence of a requisite - usually the
marriage license - and thereafter contract a subsequent marriage without obtaining
a declaration of nullity of the first on the assumption that the first marriage is void.

Such scenario would render nugatory the provisions on bigamy. As succinctly held in
Landicho v. Relova:[10]

(P)arties to a marriage should not be permitted to judge for themselves its nullity,
only competent courts having such authority. Prior to such declaration of nullity, the
validity of the first marriage is beyond question. A party who contracts a second
marriage then assumes the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of
a marriage license. Petitioner, on the other hand, argues that her marriage to
respondent was exempt from the requirement of a marriage license. More
specifically, petitioner claims that prior to their marriage, they had already attained
the age of majority and had been living together as husband and wife for at least
five years.[11] The issue in this case is limited to the existence of a prejudicial
question, and we are not called upon to resolve the validity of the first marriage. Be
that as it may, suffice it to state that the Civil Code, under which the first marriage
was celebrated, provides that "every intendment of law or fact leans toward the
validity of marriage, the indissolubility of the marriage bonds."[12] Hence, parties
should not be permitted to judge for themselves the nullity of their marriage, for the
same must be submitted to the determination of competent courts. Only when the
nullity of the marriage is so declared can it be held as void, and so long as there is
no such declaration the presumption is that the marriage exists.[13] No matter how
obvious, manifest or patent the absence of an element is, the intervention of the
courts must always be resorted to. That is why Article 40 of the Family Code
requires a "final judgment," which only the courts can render. Thus, as ruled in
Landicho v. Relova,[14] he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being prosecuted for
bigamy, and in such a case the criminal case may not be suspended on the ground
of the pendency of a civil case for declaration of nullity. In a recent case for
concubinage, we held that the pendency of a civil case for declaration of nullity of
marriage is not a prejudicial question.[15] This ruling applies here by analogy since
both crimes presuppose the subsistence of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be


successfully invoked as an excuse.[16] The contracting of a marriage knowing that
the requirements of the law have not been complied with or that the marriage is in
disregard of a legal impediment is an act penalized by the Revised Penal Code.[17]
The legality of a marriage is a matter of law and every person is presumed to know
the law. As respondent did not obtain the judicial declaration of nullity when he
entered into the second marriage, why should he be allowed to belatedly obtain

that judicial declaration in order to delay his criminal prosecution and subsequently
defeat it by his own disobedience of the law? If he wants to raise the nullity of the
previous marriage, he can do it as a matter of defense when he presents his
evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second
marriage was contracted rests upon the defense,[18] but that is a matter that can
be raised in the trial of the bigamy case. In the meantime, it should be stressed that
not every defense raised in the civil action may be used as a prejudicial question to
obtain the suspension of the criminal action. The lower court, therefore, erred in
suspending the criminal case for bigamy. Moreover, when respondent was indicted
for bigamy, the fact that he entered into two marriage ceremonies appeared
indubitable. It was only after he was sued by petitioner for bigamy that he thought
of seeking a judicial declaration of nullity of his first marriage. The obvious intent,
therefore, is that respondent merely resorted to the civil action as a potential
prejudicial question for the purpose of frustrating or delaying his criminal
prosecution. As has been discussed above, this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having
obtained the judicial declaration of nullity of the first marriage, can not be said to
have validly entered into the second marriage. Per current jurisprudence, a
marriage though void still needs a judicial declaration of such fact before any party
can marry again; otherwise the second marriage will also be void.[19] The reason is
that, without a judicial declaration of its nullity, the first marriage is presumed to be
subsisting. In the case at bar, respondent was for all legal intents and purposes
regarded as a married man at the time he contracted his second marriage with
petitioner.[20] Against this legal backdrop, any decision in the civil action for nullity
would not erase the fact that respondent entered into a second marriage during the
subsistence of a first marriage. Thus, a decision in the civil case is not essential to
the determination of the criminal charge. It is, therefore, not a prejudicial question.
As stated above, respondent cannot be permitted to use his own malfeasance to
defeat the criminal action against him.[21]

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the
Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the
trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-11418

December 27, 1958

ROBERTO LAPERAL, JR., ET AL., plaintiffs-appellants,


vs.
RAMON L. KATIGBAK, ET AL., defendants-appellees.
William H. Quasha and Associates for appellants.
Bausa and Ampil for appellee Evelina Kalaw-Katigbak.

MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of Manila in Civil Case No. 25235,
dismissing the complaint of plaintiffs-appellants Roberto Laperal, Jr. and his wife, Purificacion
Laperal, later referred to as the Laperals, against Ramon L. Katigbak, later referred to as Katigbak,
and his wife Evelina Kalaw, later referred to as Kalaw.
On August 8, 1950, the Laperals filed Civil Case No. 11767 against Katigbak and Kalaw for the
recovery of P14,000.00, evidenced by various promissory notes executed in favor of the Laperals by
Katigbak, and for the return of jewelry at P97,500.00, delivered by the Laperals to Katigbak for sale
on commission, or a total of P111,500.00. Kalaw moved for the dismissal of the complaint as against
her on the ground of failure to state a cause of action. The trial court granted the motion and
dismissed the case as against her. On appeal by the Laperals, the Supreme Court (Laperal vs.
Katigbak, 90 Phil., 770) affirmed the order of dismissal on January 31, 1952, on the ground that for
the payment of the sum sought by the Laperals, Katigbak alone was personally responsible with his
own private funds, and at most, the assets of the conjugal partnership, and that to reach both kinds
of property, it was unnecessary to implead Kalaw, and that as to the fruits of the paraphernal
property Kalaw, although they formed part of the assets of the conjugal partnership, they may not be
subjected to payment of personal obligations of the husband, because plaintiffs made no allegation
that the obligation redounded to the benefit of the family.

On November 1, 1950, upon a confession of judgment by Katigbak, the trial court rendered judgment
against him to pay the Laperals the sum of P14,000.00, and to return the jewelry involved, or in lieu
thereof, to pay plaintiffs P97,500.00, with interest from August 8, 1950.
About a month after this decision was rendered, Kalaw filed a complaint against her husband
Katigbak for "judicial separation of property and separate administration", Civil Case No. 12860, in
the Court of First Instance of Manila, on the ground that Katigbak had been given to lavish spending,
gambling and other games of chance, thereby dissipating the conjugal earning; and that if Kalaw
were not allowed to own and administer separately her own property, it would be impossible to
accumulate anything for the support and maintenance of their three children. Before trial, Katigbak
and Kalaw submitted an agreement or stipulation of facts, on the basis of which, the court rendered
judgment, the dispositive part of which reads:
EN SU VIRTUD, el Juzgado dicta sentencia de acuerdo con los terminos del convenido
arriba acotado, ordenando a las partes a que se atengan y cumplan estrictamente con lo
convenido, sin costas.
The agreement or stipulation of facts above referred to is reproduced below for purposes of
reference:
AGREEMENT OF FACTS
COMES Now the Plaintiff and Defendant in the above entitled case, assisted by their
respective counsel, and to this Honorable Court respectfully submit the following stipulation
of facts:
1. That, Defendant hereby admits that he abandoned the conjugal home for more than one
year now and has since been living formally at the Majestic Hotel, Ermita, Manila, and later
at Lipa City, Batangas;
2. That, Defendant hereby admits he has been unwise, lacks judgment in all the business
ventures and abused his powers in the administration of the conjugal properties which
resulted in losses to the conjugal partnership;
3. That, both Plaintiff and Defendant hereby agree to the dissolution of the conjugal
partnership, subject to the approval of this Honorable Court;
4. That, both Plaintiff and Defendant hereby agree that each will manage his or her separate
properties;
5. That, Plaintiff and Defendant hereby agree that their three minor children, namely,
RAMON, JR., TEODORO and GRACIE MARIE, all surnamed KATIGBAK, shall be placed in
custody of Plaintiff, who will take charge of their support and education at her own expense;
6. That, both Plaintiff and Defendant hereby waive the right to demand for support from each
other after the separation of their conjugal property;

7. That, during the existence of the conjugal partnership they acquired only the following
properties:
Certificate No. 028 for 3 shares of stock of the Lipa Electric Co., Inc., with a par value of
P100.00 a share, or a total par value of P300.00.
8. That, outside of the above shares of stock, no other property, either real or personal, has
been acquired during their marriage;
9. That, Plaintiff has discovered that the piece of real property located in Lipa mentioned in
her complaint, Paragraph IV, as having been acquired by the conjugal partnership, was sold,
together with the Lipa Theatre erected thereon, by both Plaintiff and Defendant to the
spouses, Mr. and Mrs. Albino Cantos, of Batangas, Batangas, during the Japanese
occupation, hence it is no longer an asset of the conjugal partnership;.
10. That, the Plaintiff hereby transfers, conveys and assigns unto the Defendant her one-half
(1/2) share and participation in the conjugal property in Paragraph 7 herein-above described.
Plaintiff hereby declares and makes manifest that she has not incurred any obligations or
indebtedness for the account of or chargeable to the conjugal partnership;
WHEREFORE, it is respectfully prayed that this Honorable Court render a decision
(1) Ordering the separation of the properties of the herein Plaintiff and Defendant in
accordance with Article 191 et cetera of the New Civil Code;.
(2) Transferring all the above conjugal properties to the Defendant;.
(3) Placing their children, namely RAMON, JR., TEODORO, and GRACIE MARIE, all
surnamed KATIGBAK, in the custody of the Plaintiff.
Manila, Philippines, September 25, 1951.
On February 1, 1955, the Laperals filed another complaint against Kalaw and Katigbak, Civil Case
No. 25235, in the Court of First Instance of Manila, seeking among other things to annul proceedings
had in Civil Case No. 12860 for "judicial separation of property and separate administration," to
enforce the judgment secured by the Laperals in Civil Case No. 11767 on the fruits of Kalaw's
paraphernal property, and to secure a ruling declaring the real property covered by Transfer
Certificate of Title No. 57626, as conjugal property of Katigbak and Kalaw. After trial, the court
dismissed the complaint, which dismissal the Laperals are now appealing to this Court, assigning the
following errors:
1. In holding that the obligations incurred by KATIGRAK did not redound to the benefit of the
family of KATIGBAK and KALAW;
2. In holding that the obligations incurred by KATIGBAK cannot be enforced against the fruits
of the paraphernal property of KALAW;

3. In not requiring KALAW to account and pay to the LAPERALS the net fruits of the Center
Theatre Building on Quezon Boulevard, Manila, and of other paraphernal property of KALAW
in satisfaction of DECISION I in favor of the Laperals;
4. In holding KATIGBAK's and KALAW's conjugal partnership property as exempt from the
obligations incurred by KATIGBAK;
5. In not holding that the dissolution of the conjugal partnership of KATIGBAK and KALAW
is--at least insofar as concerns the LAPERALS void;
6. In not holding that the property situated in Evangelista Street, Manila, covered by Transfer
Certificate of Title No. 57626 and the Center Theater Building are conjugal partnership
property and in not holding the same liable to the obligations of KATIGBAK in favor of the
LAPERALS; and
7. In not requiring KALAW as an alternative to pay one-half of the unpaid portion of
DECISION I.
8. In not ordering KALAW and KATIGBAK to pay the LAPERALS attorney's fees.
The trial court refused to enforce the obligation of Katigbak embodied in the decision against him in
Civil Case No. 11767 against the fruits of the paraphernal property of Kalaw:
. . . for the reason that there is no proof that the obligations contracted by Ramon redounded
to the benefit of the family . . . (p. 59, Record on Appeal.)
citing Article 1386 of the Old Civil Code (Article 139 of the New Civil Code), which provides:
Las obligaciones personales del marido no podran hacerse efectivas sobre los frutos de los
bienes parafernales a menos que se pruebe que redundaron en provecho de la familia.
One argument behind the Laperal's contention that the fruits of Kalaw's paraphernal property should
be made to answer for the obligation of Katigbak is that at least, as regards the P97,500.00 worth of
jewelry given to Katigbak for sale, there was involved a contract or remunerative agency and
consequently, the lower court should have considered said obligation as having redounded to the
benefit of the family. In support thereof, the cases of Javier vs. Osmea, 34 Phil. 336, and Abella vs.
Erlanger & Galinger, 59 Phil. 326, are cited. In those cases, this Tribunal held that the husband as
the manager of the conjugal partnership, has the right to embark the partnership in an ordinary
commercial enterprise for gain, and the fact that the wife may not approve of the venture, does not
make it a personal and private contract of the husband; consequently, the fruits of the paraphernal
property are liable. (Op. Cit. I Tolentino, pp. 348-349, 1953 Ed.) This ruling is applicable in ordinary
cases. However, where as in the present case, the contract was entered into by Katigbak without
Kalaw's knowledge and consent, and while he and his wife were living separately, and as a matter of
fact, the proceeds thereof not having redounded to the benefit of the family, the fruits of the
paraphernal property may not be made to answer for said obligation even if it arose from an alleged
remunerative agency. Furthermore, in the case of Roberto Laperal, Jr., et al. vs. Ramon L. Katigbak,

et al., supra, where as already stated, the dismissal of the original complaint against Kalaw was
affirmed by Us, we had occasion to say and to rule as follows:
It is true that the plaintiffs allege that both defendants acted as their agents' in the sale in
commission of the jewels; but having attached the receipts as integral parts of the complaint,
their allegation as to agency in so far as Evelina is concerned, should be deemed as a mere
legal inference from the marital relation; not a factual assertion based on specific contract.
The legal conclusion is not supported by any statute. The provisions of the New Civil Code
which plaintiffs invoke on the matter are not applicable, the transactions having taken place
before June 1950.
As regards the question as to whether or not the obligation assumed by Katigbak redounded to the
benefit of the family, Kalaw flatly denied the same in her pleading, asking for the dismissal of the
complaint as against her. Not only that, but she testified in court without contradiction that at the time
Katigbak issued the promissory notes, she was already living separately from her husband Katigbak
and, as a matter of fact, they were granted a divorce by petition of Kalaw in Chihuahua, Mexico, on
January 11, 1955, and that she was unaware of the transaction had between Katigbak and the
Laperals, and that the family received no benefit whatsoever from the transaction:
. . . los acreedores no pueden hacer efectivo el importe de sus creditos en los frutos de los
bienes parafernales, a menos de que prueben que redundaron en provecho de la familia,
como consta del precepto especial del art. 1.386. (9 Manresa 548, 4.a Ed.)
. . . if the conjugal assets involved are fruits or products of the paraphernal property, in case
of doubt concerning its true investments, it is not the wife who has to prove the fraud or the
illegality of the act; it is the husband or the creditor who has to justify that the obligations
contracted redounded to the benefit of the family. The spirit of the provisions is that the
husband cannot benefit for his own interest for private or personal undertakings of the fruits
of the paraphernal property; that these shall be destined to the true needs and charges of
the conjugal partnership and accordingly, that they be employed, as they should for the
benefit of the family. (Francisco, Book I, Civil Code of the Philippines, pp. 433-434)
In the case of Quintos de Ansaldo, et al. vs. Sheriff of Manila, et al., 64 Phil. 115, where no attempt
was made to prove that the obligations contracted by the husband redounded to the benefit of the
family, this court sustained the order of the trial court nullifying the execution levied on the fruits of
the wife's paraphernal property:
Construing the two articles together [Arts. 1386 and 1408, old Civil Code; 161 and 139 New
Civil Code] it seems clear that the fruits of the paraphernal property which became part of
the assets of the conjugal partnership are not liable for the payment of personal obligations
of the husband, unless it proved that such obligations are productive of some benefit to the
family.
In the case now before us, no attempt has been made to prove that the obligations
contracted by the appellee, Angel A. Ansaldo, were productive of some benefit to the
family. It is, however, claimed that, as the sum of P636.80 has become the property of the
lawphil.net

conjugal partnership, at least one-half thereof was properly levied on execution, as the share
of the appellee Angel A. Ansaldo. This contention is without merit. The right of the husband to
one-half of the property of the conjugal partnership does not vest until the dissolution of the
marriage, when the co-partnership is also dissolved. (Civil Code, Arts 1392 and 1426).
(Quintos de Ansaldo vs. Sheriff of Manila, supra. See also, La Corporacion de Padres
Agustinos, etc., et al. vs. Angel A. Ansaldo et al. 66 Phil., 566, citing 9 Manresa p. 507, 2nd
Ed.)
The trial court applying the provisions of Article 161 of the New Civil Code which provides that the
conjugal partnership shall be liable for debts and obligations contracted by the husband for the
benefit of the conjugal partnership, refused to enforce the judgment debt of Katigbak against the
conjugal property, for the reason that the Laperals failed to prove affirmatively that the obligation
redounded to the benefit of the family. Said the trial court:
. . . And for the reason that there is no proof that the obligations contracted by Ramon
redounded to the benefit of the family it will appear that these obligations could not be
enforced upon the fruits of the paraphernal properties; neither could they be enforced
naturally upon the paraphernal properties; but they could be enforced upon the conjugal
partnership property. Having arrived at this point, the Court finds an obstacle to plaintiff's
claim which it cannot ignore. As the obligations were contracted and made payable under
the regime of the Old Civil Code, if the were to be decided under that, the action would lie to
enforce the payment against the conjugal properties; unfortunately the Civil Code has
suffered an amendment in this regard and as the law now stands, the conjugal partnership
cannot be liable for an obligation of the husband unless it was contracted by him for the
benefit of the family, which is an affirmative fact that should be proved (Art. 161, New Civil
Code) and in the present case the Court has all the right to presume that the obligations did
not redound to the benefit of the family, considering par. 5 of the complaint in the Civil Case
12860 and par. 2 of the agreement of facts therein. If then this is the present law what effect
does it have on the case? Since the exemption from liability for personal obligations of the
husband is a right given to the conjugal partnership for the first time by this Code, it should
be operative at once, unless it should impair a right vested under the old legislation (Art.
2253, New Civil Code). But the right of the Laperals so far as the judgment against Ramon
Katigbak is concerned is one thing and their right to proceed against the conjugal properties
of Ramon and Evelina is another; the first one was a property right vested under the old
Code; the second was right also under that but one that had not yet vested before the New
Civil Code came into being. All vested rights are property but not all rights are; the
Legislature can come in and destroy rights not yet vested without impairment of due process.
Perhaps the case can be illustrated by analogy to Art. 2261 of the New Civil Code; the
Legislature there has decreed that exemptions from liability under Art. 302 were operative at
once; and as this is a case analogous it should under Art. 2269, be solved in the same
manner. The result will be dismissal. (pp. 59-61, Record on Appeal.)
The Laperals, however, contend that inasmuch as the debts were contracted and were made
payable before the New Civil Code went into effect, then Article 1408 of the Old Civil Code should
apply; and that inasmuch as under the latter, in relation to third persons, the husband and the
conjugal partnership are considered identical, then the obligations contracted by Katigbak are

chargeable against the conjugal property, except the fruits of the paraphernal property, even if the
obligation did not benefit the family. We are inclined to agree with the Laperals, on this vital question.
For purposes of reference, we are reproducing Articles 4, 161, 2252 and 2253 of the New Civil
Code, and Article 1408 of the Old Civil Code:
ART. 4. Laws shall have no retroactive effect, unless the contrary is provided.
ART. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal
partnership, and those contracted by the wife, also for the same purpose, in cases where
she may legally bind the partnership; . . .
ART. 2252. Changes made and new provisions and rules laid down by this Code which may
prejudice orimpair vested or acquired rights in accordance with the old legislation shall have
no retroactive effect.
For the determination of the applicable law in cases which are not specified elsewhere in this
Code, the following articles shall be observed: (Pars. 1 and 2, Transitional Provisions).
lawphil.net

ART. 2253. The Civil Code of 1889 and other previous laws shall govern rights originating,
under said laws, from acts done or events which took place under their regime, even though
this Code may regulate them in a different manner, or may not recognize them. But if a
right should be declared for the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or may have occurred
under the prior legislation, provided said new right does not prejudice or impair any vested or
acquired right, of the same origin. (Rule 1)
ART. 1408. The conjugal partnership shall be liable for:
1. All debts and obligations contracted during the marriage by the husband, and also for
those contracted by the wife in the cases in which she can legally bind the partnership; . . .
(Old Civil Code)
In relation to the obligation assumed by Katigbak, namely, the loans evidenced by the promissory
notes and the delivery to him of the jewelry for sale, which loans and jewelry were to be paid and
accounted for, respectively, before the promulgation of the New Civil Code on August 30, 1950, the
same would ordinarily be governed by the Old Civil Code of 1889, this, under the first part of Art.
2253. Applying the Old Civil Code, particularly, Article 1408, paragraph 1, this obligation renders the
conjugal partnership liable, for the reason that said Article 1408 does not require that said obligation
should benefit the conjugal partnership.
Then Article 161 of the New Civil Code provides that the conjugal partnership shall be liable for
debts and obligations contracted by the husband only when they were for the benefit of the conjugal
partnership. In other words, the conjugal properties are exempt from this liability when the
obligations did not benefit the conjugal partnership, as they did not as a matter of fact in the present

case. This legal exemption may be regarded as a new right declared for the first time in the New
Civil Code, particularly, by the later part of Article 2253, and should be made effective at once, even
though the obligation contracted by the husband may have been done or occurred under the regime
of the Old Civil Code. This, the trial court did; it gave effect to this new right of exemption. However,
and this is important, said latter part of Article 2253 clearly imposes a qualification or condition,
namely, that the new right to be made effective at once does not prejudice or impair any vested or
acquired right. Not only this, but Articles 4 and 2252 of the New Civil Code provide that laws shall
have no retroactive effect, unless the contrary is provided, and that new provisions and rules laid
down by the new Code which may prejudice or impair vested or acquired rights shall have no
retroactive effect.
Commenting on Articles 2252 to 2270, the Code Commission, in its report, said the following:
The articles submitted are based on article 4 of the new Code which states that law shall
have no retroactive effect, unless the contrary is provided. The question of how far the new
Civil Code should be made applicable to past acts and events is attended with the utmost
difficulty. It is easy enough to understand the abstract principle that laws have no retroactive
effect because vested or acquired rights should be respected. But what are vested or
acquired rights?
The Commission did not venture to formulate a definition of a vested or acquired right,
seeing that the problem is extremely complicated. Neither did the Commission deem it
advisable to propose detailed rules, as is done in Switzerland.

What constitutes a vested or acquired right will be determined by the courts as each
particular issue is submitted to them, by applying the transitional provisions set forth and in
case of doubt, by observing article 9 governing the silence or obscurity of the law. In this
manner, the Commission is confident that the judiciary with its enlightenment and high sense
of justice will be able to decide in what cases the old Civil Code should apply and in what
cases the new one should be binding. This course has been preferred by the Commission,
which did not presume to be able to foresee and adequately provide for each and every
question that may arise.
The Code Commission did not formulate a definition of a vested or acquired right; neither do we
propose to do so, not only because of the extensive and complicated scope and nature of the same,
but also because we find it unnecessary at this time.
The question is whether or not any vested or acquired right is involved in the instant case. The
answer, in our opinion, is in the affirmative. When the Laperals granted the loan and delivered the
jewelry to Katigbak to be paid and accounted for by him, the law then in force (Article Old Civil Code)
made the conjugal partnership liable for the obligation. In other words, in giving the loan and
delivering the jewelry to Katigbak, the Laperals, for purposes of security and assurance, presumably
or undoubtedly looked to the conjugal properties as security to answer for the obligation, should
Katigbak fail to make good his undertaking. Stated differently, the Laperal acquired a sort of lien on

said conjugal properties. For instance, if before the obligation was paid and fulfilled, or even before
maturity, the conjugal partners or either of them tried to dispose of the conjugal properties, the
Laperals could take judicial measures to stop and frustrate the attempt, if intended to defraud
creditors. We hold that this right of the Laperals is an acquired or vested right which attached to the
obligation. The Laperals, in order to acquire or to vest their right, did not have to wait until the
obligation matured, or the obligor failed, and then bring the corresponding suit in court, obtain a
favorable decision, as well as a writ of execution against the conjugal partnership to enforce the
judgment. The right of the Laperals vested at the very moment the obligation was contracted, under
the provisions of the Old Civil Code. For this reason, the provisions of Article 161 of the New Civil
Code cannot apply, and the trial court erred in applying the same.
However, our holding does not write a finish to the case. Because the trial court held that the
conjugal partnership was not liable, it naturally, saw no reason or necessity for ruling upon the other
issues involved, such as the legality of the proceedings in Civil Case No. 12860 for the dissolution of
the conjugal partnership, and whether or not the property covered by Transfer Certificate of Title
27626 belongs to the conjugal partnership.
In conclusion, we hold that while the fruits of the paraphernal property of Kalaw are not liable for the
enforcement of the obligation contracted by Katigbak, nevertheless, the conjugal properties are.
The case is hereby ordered remanded for further proceedings to the trial court, the latter to make the
necessary findings indicated, and then render a decision on the basis of said findings and in
accordance with our decision. No costs.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Reyes, J. B. L. and Endencia, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

A.M. No. P-02-1651

August 4, 2003

ALEJANDRO ESTRADA, complainant,


vs.

SOLEDAD S. ESCRITOR, respondent.

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man
stands accountable to an authority higher than the state. To be held on balance are
the state's interest and the respondent's religious freedom. In this highly sensitive
area of law, the task of balancing between authority and liberty is most delicate
because to the person invoking religious freedom, the consequences of the case are
not only temporal. The task is not made easier by the American origin of our religion
clauses and the wealth of U.S. jurisprudence on these clauses for in the United
States, there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses.1 The U.S. Supreme Court itself has
acknowledged that in this constitutional area, there is "considerable internal
inconsistency in the opinions of the Court."2 As stated by a professor of law, "(i)t is
by now notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional law have
confusion and inconsistency achieved such undisputed sovereignty."3 Nevertheless,
this thicket is the only path to take to conquer the mountain of a legal problem the
case at bar presents. Both the penetrating and panoramic view this climb would
provide will largely chart the course of religious freedom in Philippine jurisdiction.
That the religious freedom question arose in an administrative case involving only
one person does not alter the paramount importance of the question for the
"constitution commands the positive protection by government of religious freedom
-not only for a minority, however small- not only for a majority, however large- but
for each of us."4

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of
religious freedom. It is necessary therefore to lay down the facts in detail, careful
not to omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada


wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, requesting for an investigation of rumors that respondent
Soledad Escritor, court interpreter in said court, is living with a man not her

husband. They allegedly have a child of eighteen to twenty years old. Estrada is not
personally related either to Escritor or her partner and is a resident not of Las Pias
City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he
believes that she is committing an immoral act that tarnishes the image of the
court, thus she should not be allowed to remain employed therein as it might
appear that the court condones her act.5

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to
the veracity of the allegation" and challenged Estrada to "appear in the open and
prove his allegation in the proper forum."6 Judge Caoibes set a preliminary
conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes
from hearing her case to avoid suspicion and bias as she previously filed an
administrative complaint against him and said case was still pending in the Office of
the Court Administrator (OCA). Escritor's motion was denied. The preliminary
conference proceeded with both Estrada and Escritor in attendance. Estrada
confirmed that he filed the letter-complaint for immorality against Escritor because
in his frequent visits to the Hall of Justice of Las Pias City, he learned from
conversations therein that Escritor was living with a man not her husband and that
she had an eighteen to twenty-year old son by this man. This prompted him to write
to Judge Caoibes as he believed that employees of the judiciary should be
respectable and Escritor's live-in arrangement did not command respect.7

Respondent Escritor testified that when she entered the judiciary in 1999,8 she was
already a widow, her husband having died in 1998.9 She admitted that she has
been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty
years and that they have a son. But as a member of the religious sect known as the
Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal
arrangement is in conformity with their religious beliefs. In fact, after ten years of
living together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio,


Jr., as my mate in marital relationship; that I have done all within my ability to
obtain legal recognition of this relationship by the proper public authorities and that
it is because of having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before 'Jehovah' God and before all
persons to be held to and honored in full accord with the principles of God's Word. I
will continue to seek the means to obtain legal recognition of this relationship by
the civil authorities and if at any future time a change in circumstances make this
possible, I promise to legalize this union.

Signed this 28th day of July 1991.10

Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both
pledges were executed in Atimonan, Quezon and signed by three witnesses. At the
time Escritor executed her pledge, her husband was still alive but living with
another woman. Quilapio was likewise married at that time, but had been separated
in fact from his wife. During her testimony, Escritor volunteered to present members
of her congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered her
identification of her signature and the signature of Quilapio sufficient authentication
of the documents.12

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr.,
who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July
17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N.
Elepao, directed Escritor to comment on the charge against her. In her comment,
Escritor reiterated her religious congregation's approval of her conjugal
arrangement with Quilapio, viz:

Herein respondent does not ignore alleged accusation but she reiterates to state
with candor that there is no truth as to the veracity of same allegation. Included
herewith are documents denominated as Declaration of Pledging Faithfulness
(Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital
relationship with the witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and
before all persons to be held to and honored in full accord with the principles of
God's Word.

xxx

xxx

xxx

Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . .
. to which undersigned believes to be a high authority in relation to her case.13

Deputy Court Administrator Christopher O. Lock recommended that the case be


referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City
for investigation, report and recommendation. In the course of Judge Maceda's
investigation, Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She offered to
supply the investigating judge some clippings which explain the basis of her
congregation's belief and practice regarding her conjugal arrangement. Escritor
started living with Quilapio twenty years ago when her husband was still alive but
living with another woman. She met this woman who confirmed to her that she was
living with her (Escritor's) husband.14

Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified.
He had been a presiding minister since 1991 and in such capacity is aware of the
rules and regulations of their congregation. He explained the import of and
procedure for executing a "Declaration of Pledging Faithfulness", viz:

Q:
Now, insofar as the pre-marital relationship is concern (sic), can you cite
some particular rules and regulations in your congregation?

A:
Well, we of course, talk to the persons with regards (sic) to all the parties
involved and then we request them to execute a Public Declaration of Pledge of
faithfulness.

Q:

What is that document?

A:

Declaration of Pledge of faithfulness.

Q:
What are the relations of the document Declaration of Pledge of
faithfulness, who are suppose (sic) to execute this document?

A:
This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized
member and true member of the congregation.

Q:
What standard rules and regulations do you have in relation with this
document?

A:
Actually, sir, the signing of that document, ah, with the couple has consent
to marital relationship (sic) gives the Christian Congregation view that the couple
has put themselves on record before God and man that they are faithful to each
other. As if that relation is validated by God.

Q:
From your explanation, Minister, do you consider it a pledge or a document
between the parties, who are members of the congregation?

A:
It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of
faithfulness.

Q:

And what does pledge mean to you?

A:
It means to me that they have contracted, let us say, I am the one who
contracted with the opposite member of my congregation, opposite sex, and that
this document will give us the right to a marital relationship.

Q:
So, in short, when you execute a declaration of pledge of faithfulness, it is a
preparation for you to enter a marriage?

A:

Yes, Sir.

Q:
But it does not necessarily mean that the parties, cohabiting or living under
the same roof?

A:
Well, the Pledge of faithfulness document is (sic) already approved as to the
marital relationship.

Q:
Do you mean to say, Minister, by executing this document the contracting
parties have the right to cohabit?

A:
Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as
we Christians follow. The basis is herein stated in the Book of Matthew, Chapter
Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone
divorcing his wife, except on account of fornication, makes her a subject for
adultery, and whoever marries a divorced woman commits adultery.15

Escritor and Quilapio transferred to Salazar's Congregation, the Almanza


Congregation in Las Pias, in May 2001. The declarations having been executed in
Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal
circumstances of Escritor and Quilapio when they executed their declarations.
However, when the two transferred to Almanza, Salazar inquired about their status
from the Atimonan Congregation, gathered comments of the elders therein, and
requested a copy of their declarations. The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the Atimonan
Congregation when they executed their declarations.

Escritor and Quilapio's declarations are recorded in the Watch Tower Central office.
They were executed in the usual and approved form prescribed by the Watch Tower
Bible and Tract Society which was lifted from the article, "Maintaining Marriage in
Honor Before God and Men,"16 in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah's Witnesses
congregation and is binding within the congregation all over the world except in
countries where divorce is allowed. The Jehovah's congregation requires that at the
time the declarations are executed, the couple cannot secure the civil authorities'
approval of the marital relationship because of legal impediments. It is thus
standard practice of the congregation to check the couple's marital status before
giving imprimatur to the conjugal arrangement. The execution of the declaration
finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the
offended spouse can remarry. The marital status of the declarants and their
respective spouses' commission of adultery are investigated before the declarations
are executed. Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status before the
declaration was approved and the declaration is valid everywhere, including the
Almanza Congregation. That Escritor's and Quilapio's declarations were approved
are shown by the signatures of three witnesses, the elders in the Atimonan
Congregation. Salazar confirmed from the congregation's branch office that these
three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor
was widowed, thereby lifting the legal impediment to marry on her part, her mate is
still not capacitated to remarry. Thus, their declarations remain valid. Once all legal
impediments for both are lifted, the couple can already register their marriage with
the civil authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine law. 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.17

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of


the Jehovah's Witnesses since 1974 and member of the headquarters of the Watch
Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of
the magazine article entitled, "Maintaining Marriage Before God and Men" to which
Escritor and Minister Salazar referred in their testimonies. The article appeared in
the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania,
U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the article. The
article is distributed to the Jehovah's Witnesses congregations which also distribute
them to the public.18

The parties submitted their respective memoranda to the investigating judge. Both
stated that the issue for resolution is whether or not the relationship between
respondent Escritor and Quilapio is valid and binding in their own religious
congregation, the Jehovah's Witnesses. Complainant Estrada adds however, that the

effect of the relationship to Escritor's administrative liability must likewise be


determined. Estrada argued, through counsel, that the Declaration of Pledging
Faithfulness recognizes the supremacy of the "proper public authorities" such that
she bound herself "to seek means to . . . legalize their union." Thus, even assuming
arguendo that the declaration is valid and binding in her congregation, it is binding
only to her co-members in the congregation and serves only the internal purpose of
displaying to the rest of the congregation that she and her mate are a respectable
and morally upright couple. Their religious belief and practice, however, cannot
override the norms of conduct required by law for government employees. To rule
otherwise would create a dangerous precedent as those who cannot legalize their
live-in relationship can simply join the Jehovah's Witnesses congregation and use
their religion as a defense against legal liability.19

On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion, the
Jehovah's Witnesses. She quoted portions of the magazine article entitled,
"Maintaining Marriage Before God and Men," in her memorandum signed by herself,
viz:

The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the
respondent and her mate greatly affect the administrative liability of respondent.
Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public
authorities in the marriage arrangement. However, it is helpful to understand the
relative nature of Caesar's authority regarding marriage. From country to country,
marriage and divorce legislation presents a multitude of different angles and
aspects. Rather than becoming entangled in a confusion of technicalities, the
Christian, or the one desiring to become a disciple of God's Son, can be guided by
basic Scriptural principles that hold true in all cases.

God's view is of first concern. So, first of all the person must consider whether that
one's present relationship, or the relationship into which he or she contemplates
entering, is one that could meet with God's approval, or whether in itself, it violates
the standards of God's Word. Take, for example, the situation where a man lives
with a wife but also spends time living with another woman as a concubine. As long
as such a state of concubinage prevails, the relationship of the second woman can
never be harmonized with Christian principles, nor could any declaration on the part
of the woman or the man make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a member of one's

immediate family, or a homosexual relationship or other such situation condemned


by God's Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a situation could not make any kind of
"Declaration of Faithfulness," since it would have no merit in God's eyes.

If the relationship is such that it can have God's approval, then, a second principle
to consider is that one should do all one can to establish the honorableness of one's
marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step
should now be taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil validation as a
recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of
God's Word, and if one has done all that can reasonably be done to have it
recognized by civil authorities and has been blocked in doing so, then, a Declaration
Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme
slowness of official action may make accomplishing of legal steps a matter of many,
many years of effort. Or it may be that the costs represent a crushingly heavy
burden that the individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation with the basis for
viewing the existing union as honorable while the individual continues
conscientiously to work out the legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of


Jehovah God, should be able to approach the matter in a balanced way, neither
underestimating nor overestimating the validation offered by the political state. She
always gives primary concern to God's view of the union. Along with this, every
effort should be made to set a fine example of faithfulness and devotion to one's
mate, thus, keeping the marriage "honorable among all." Such course will bring
God's blessing and result to the honor and praise of the author of marriage, Jehovah
God. (1 Cor. 10:31-33)20

Respondent also brought to the attention of the investigating judge that


complainant's Memorandum came from Judge Caoibes' chambers21 whom she
claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritor's


factual allegations credible as they were supported by testimonial and documentary
evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship
of respondent with her mate should fall within the definition of immoral conduct, to
wit: 'that which is willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable members of the community'
(7 C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out,
however, that "the more relevant question is whether or not to exact from
respondent Escritor, a member of 'Jehovah's Witnesses,' the strict moral standards
of the Catholic faith in determining her administrative responsibility in the case at
bar."22 The investigating judge acknowledged that "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
(at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando's separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531)" and thereby
recommended the dismissal of the complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the
Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock
and with the approval of Court Administrator Presbitero Velasco, concurred with the
factual findings of Judge Maceda but departed from his recommendation to dismiss
the complaint. DCA Lock stressed that although Escritor had become capacitated to
marry by the time she joined the judiciary as her husband had died a year before,
"it is due to her relationship with a married man, voluntarily carried on, that
respondent may still be subject to disciplinary action."24 Considering the ruling of
the Court in Dicdican v. Fernan, et al.25 that "court personnel 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 the court of
justice," DCA Lock found Escritor's defense of freedom of religion unavailing to
warrant dismissal of the charge of immorality. Accordingly, he recommended that
respondent be found guilty of immorality and that she be penalized with suspension
of six months and one day without pay with a warning that a repetition of a similar
act will be dealt with more severely in accordance with the Civil Service Rules.26

II. Issue

Whether or not respondent should be found guilty of the administrative charge of


"gross and immoral conduct." To resolve this issue, it is necessary to determine the
sub-issue of whether or not respondent's right to religious freedom should carve out

an exception from the prevailing jurisprudence on illicit relations for which


government employees are held administratively liable.

III. Applicable Laws

Respondent is charged with committing "gross and immoral conduct" under Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides,
viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law and
after due process.

(b) The following shall be grounds for disciplinary action:

xxx

xxx

xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in layman's terms, invokes the religious


beliefs and practices and moral standards of her religion, the Jehovah's Witnesses,
in asserting that her conjugal arrangement with a man not her legal husband does
not constitute disgraceful and immoral conduct for which she should be held
administratively liable. While not articulated by respondent, she invokes 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.

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the Old
World. One cannot understand, much less intelligently criticize the approaches of
the courts and the political branches to religious freedom in the recent past in the
United States without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.27 This fresh look at
the religion clauses is proper in deciding this case of first impression.

In primitive times, all of life may be said to have been religious. Every significant
event in the primitive man's life, from birth to death, was marked by religious
ceremonies. Tribal society survived because religious sanctions effectively elicited
adherence to social customs. A person who broke a custom violated a taboo which
would then bring upon him "the wrathful vengeance of a superhuman mysterious
power."28 Distinction between the religious and non-religious would thus have been
meaningless to him. He sought protection from all kinds of evil - whether a wild
beast or tribe enemy and lightning or wind - from the same person. The head of the
clan or the Old Man of the tribe or the king protected his wards against both human
and superhuman enemies. In time, the king not only interceded for his people with
the divine powers, but he himself was looked upon as a divine being and his laws as
divine decrees.29

Time came, however, when the function of acting as intermediary between human
and spiritual powers became sufficiently differentiated from the responsibility of
leading the tribe in war and policing it in peace as to require the full-time services of
a special priest class. This saw the birth of the social and communal problem of the
competing claims of the king and priest. Nevertheless, from the beginning, the king
and not the priest was superior. The head of the tribe was the warrior, and although
he also performed priestly functions, he carried out these functions because he was
the head and representative of the community.30

There being no distinction between the religious and the secular, the same authority
that promulgated laws regulating relations between man and man promulgated
laws concerning man's obligations to the supernatural. This authority was the king
who was the head of the state and the source of all law and who only delegated
performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of
Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes;

regulated the fees of surgeons and the wages of masons and tailors and prescribed
rules for inheritance of property;31 and also catalogued the gods and assigned
them their places in the divine hierarchy so as to put Hammurabi's own god to a
position of equality with existing gods.32 In sum, the relationship of religion to the
state (king) in pre-Hebreic times may be characterized as a union of the two forces,
with the state almost universally the dominant partner.33

With the rise of the Hebrew state, a new term had to be coined to describe the
relation of the Hebrew state with the Mosaic religion: theocracy. The authority and
power of the state was ascribed to God.34 The Mosaic creed was not merely
regarded as the religion of the state, it was (at least until Saul) the state itself.
Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As
man of God, Moses decided when the people should travel and when to pitch camp,
when they should make war and when peace. Saul and David were made kings by
the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the
Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi
Code, religious laws were not of secondary importance. On the contrary, religious
motivation was primary and all-embracing: sacrifices were made and Israel was
prohibited from exacting usury, mistreating aliens or using false weights, all
because God commanded these.

Moses of the Bible led not like the ancient kings. The latter used religion as an
engine to advance the purposes of the state. Hammurabi unified Mesopotamia and
established Babylon as its capital by elevating its city-god to a primary position over
the previous reigning gods.35 Moses, on the other hand, capitalized on the natural
yearnings of the Hebrew slaves for freedom and independence to further God's
purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine
Law. The conquest of Canaan was a preparation for the building of the temple and
the full worship of God.36

Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion in
western civilization, but equally, the future of the relationship between religion and
state in the west. This fact is acknowledged by many writers, among whom is
Northcott who pointed out, viz:

Historically it was the Hebrew and Christian conception of a single and universal
God that introduced a religious exclusivism leading to compulsion and persecution

in the realm of religion. Ancient religions were regarded as confined to each


separate people believing in them, and the question of change from one religious
belief to another did not arise. It was not until an exclusive fellowship, that the
questions of proselytism, change of belief and liberty of religion arose.37 (emphasis
supplied)

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period,
religion was not only superior to the state, but it was all of the state. The Law of God
as transmitted through Moses and his successors was the whole of government.

With Saul, however, the state rose to be the rival and ultimately, the master, of
religion. Saul and David each received their kingdom from Samuel the prophet and
disciple of Eli the priest, but soon the king dominated prophet and priest. Saul
disobeyed and even sought to slay Samuel the prophet of God.38 Under Solomon,
the subordination of religion to state became complete; he used religion as an
engine to further the state's purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed the claim
of his rival to the throne.39

The subordination of religion to the state was also true in pre-Christian Rome which
engaged in emperor-worship. When Augustus became head of the Roman state and
the priestly hierarchy, he placed religion at a high esteem as part of a political plan
to establish the real religion of pre-Christian Rome - the worship of the head of the
state. He set his great uncle Julius Caesar among the gods, and commanded that
worship of Divine Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods, as other emperors
before him.40

The onset of Christianity, however, posed a difficulty to the emperor as the


Christians' dogmatic exclusiveness prevented them from paying homage to publicly
accepted gods. In the first two centuries after the death of Jesus, Christians were
subjected to persecution. By the time of the emperor Trajan, Christians were
considered outlaws. Their crime was "hatred of the human race", placing them in
the same category as pirates and brigands and other "enemies of mankind" who
were subject to summary punishments.41

In 284, Diocletian became emperor and sought to reorganize the empire and make
its administration more efficient. But the closely-knit hierarchically controlled church
presented a serious problem, being a state within a state over which he had no
control. He had two options: either to force it into submission and break its power or
enter into an alliance with it and procure political control over it. He opted for force
and revived the persecution, destroyed the churches, confiscated sacred books,
imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts
proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine
joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict
of toleration to Christians "on condition that nothing is done by them contrary to
discipline."43 A year later, after Galerius died, Constantine and Licius jointly issued
the epochal Edict of Milan (312 or 313), a document of monumental importance in
the history of religious liberty. It provided "that liberty of worship shall not be denied
to any, but that the mind and will of every individual shall be free to manage divine
affairs according to his own choice." (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted "that every person who cherishes the
desire to observe the Christian religion shall freely and unconditionally proceed to
observe the same without let or hindrance." Furthermore, it was provided that the
"same free and open power to follow their own religion or worship is granted also to
others, in accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his choice."(emphasis
supplied)44

Before long, not only did Christianity achieve equal status, but acquired privilege,
then prestige, and eventually, exclusive power. Religion became an engine of state
policy as Constantine considered Christianity a means of unifying his complex
empire. Within seven years after the Edict of Milan, under the emperor's command,
great Christian edifices were erected, the clergy were freed from public burdens
others had to bear, and private heathen sacrifices were forbidden.

The favors granted to Christianity came at a price: state interference in religious


affairs. Constantine and his successors called and dismissed church councils, and
enforced unity of belief and practice. Until recently the church had been the victim
of persecution and repression, but this time it welcomed the state's persecution and
repression of the nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.

Both in theory as in practice, the partnership between church and state was not
easy. It was a constant struggle of one claiming dominance over the other. In time,
however, after the collapse and disintegration of the Roman Empire, and while
monarchical states were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and universal power. Not
surprisingly, therefore, it claimed not merely equality but superiority over the
secular states. This claim, symbolized by Pope Leo's crowning of Charlemagne,
became the church's accepted principle of its relationship to the state in the Middle
Ages. As viewed by the church, the union of church and state was now a union of
the state in the church. The rulers of the states did not concede to this claim of
supremacy. Thus, while Charlemagne received his crown from the Pope, he himself
crowned his own son as successor to nullify the inference of supremacy.45 The
whole history of medieval Europe was a struggle for supremacy between prince and
Pope and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13th century, the Inquisition
was established, the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in the bull Ad
extirpanda issued by Pope Innocent IV in 1252.

The corruption and abuses of the Catholic Church spurred the Reformation aimed at
reforming the Catholic Church and resulting in the establishment of Protestant
churches. While Protestants are accustomed to ascribe to the Reformation the rise
of religious liberty and its acceptance as the principle governing the relations
between a democratic state and its citizens, history shows that it is more accurate
to say that the "same causes that gave rise to the Protestant revolution also
resulted in the widespread acceptance of the principle of religious liberty, and
ultimately of the principle of separation of church and state."46 Pleas for tolerance
and freedom of conscience can without doubt be found in the writings of leaders of
the Reformation. But just as Protestants living in the countries of papists pleaded for
toleration of religion, so did the papists that lived where Protestants were
dominant.47 Papist and Protestant governments alike accepted the idea of
cooperation between church and state and regarded as essential to national unity
the uniformity of at least the outward manifestations of religion.48 Certainly, Luther,
leader of the Reformation, stated that "neither pope, nor bishop, nor any man
whatever has the right of making one syllable binding on a Christian man, unless it
be done with his own consent."49 But when the tables had turned and he was no
longer the hunted heretic, he likewise stated when he made an alliance with the
secular powers that "(h)eretics are not to be disputed with, but to be condemned
unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its
source, and bathe their hands in the blood of the Catholic bishops, and of the Pope,
who is a devil in disguise."50 To Luther, unity among the peoples in the interests of
the state was an important consideration. Other personalities in the Reformation

such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of
the state as an engine to further religion. In establishing theocracy in Geneva,
Calvin made absence from the sermon a crime, he included criticism of the clergy in
the crime of blasphemy punishable by death, and to eliminate heresy, he
cooperated in the Inquisition.51

There were, however, those who truly advocated religious liberty. Erasmus, who
belonged to the Renaissance than the Reformation, wrote that "(t)he terrible papal
edict, the more terrible imperial edict, the imprisonments, the confiscations, the
recantations, the fagots and burnings, all these things I can see accomplish nothing
except to make the evil more widespread."52 The minority or dissident sects also
ardently advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers founded by
George Fox in the 17th century, endorsed the supremacy and freedom of the
individual conscience. They regarded religion as outside the realm of political
governments.53 The English Baptists proclaimed that the "magistrate is not to
meddle with religion or matters of conscience, nor compel men to this or that form
of religion."54

Thus, out of the Reformation, three rationalizations of church-state relations may be


distinguished: the Erastian (after the German doctor Erastus), the theocratic, and
the separatist. The first assumed state superiority in ecclesiastical affairs and the
use of religion as an engine of state policy as demonstrated by Luther's belief that
civic cohesion could not exist without religious unity so that coercion to achieve
religious unity was justified. The second was founded on ecclesiastical supremacy
and the use of state machinery to further religious interests as promoted by Calvin.
The third, which was yet to achieve ultimate and complete expression in the New
World, was discernibly in its incipient form in the arguments of some dissident
minorities that the magistrate should not intermeddle in religious affairs.55 After the
Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva.
In England, perhaps more than in any other country, Erastianism was at its height.
To illustrate, a statute was enacted by Parliament in 1678, which, to encourage
woolen trade, imposed on all clergymen the duty of seeing to it that no person was
buried in a shroud made of any substance other than wool.56 Under Elizabeth,
supremacy of the crown over the church was complete: ecclesiastical offices were
regulated by her proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine Articles of
the Church of England were adopted and English Protestantism attained its present
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor
of this realm . . . as well in all spiritual or ecclesiastical things or causes as
temporal." She and her successors were vested, in their dominions, with "all manner

of jurisdictions, privileges, and preeminences, in any wise touching or concerning


any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration which
established a de facto toleration for all except Catholics. The Catholics achieved
religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was
adopted. The Jews followed suit in 1858 when they were finally permitted to sit in
Parliament.60

When the representatives of the American states met in Philadelphia in 1787 to


draft the constitutional foundation of the new republic, the theocratic state which
had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva
was completely gone. The prevailing church-state relationship in Europe was
Erastianism embodied in the system of jurisdictionalism whereby one faith was
favored as the official state-supported religion, but other faiths were permitted to
exist with freedom in various degrees. No nation had yet adopted as the basis of its
church-state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an engine
to further the policies of the other, although the principle was in its seminal form in
the arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the
past by the time America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as expressed by
the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of


America had been filled with turmoil, civil strife, and persecution generated in large
part by established sects determined to maintain their absolute political and
religious supremacy. With the power of government supporting them, at various
times and places, Catholics had persecuted Protestants, Protestants had persecuted
Catholics, Protestant sects had persecuted other protestant sects, Catholics of one
shade of belief had persecuted Catholics of another shade of belief, and all of these
had from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views of ministers of
government-established churches, non-attendance at those churches, expressions
of non-belief in their doctrines, and failure to pay taxes and tithes to support
them.61

In 1784, James Madison captured in this statement the entire history of church-state
relations in Europe up to the time the United States Constitution was adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.62

In sum, this history shows two salient features: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression,
hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and
emperors in exchange for 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.63

V. Factors Contributing to the Adoption of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglicandominated England, established many of the American colonies. British thought
pervaded these colonies as the immigrants brought with them their religious and
political ideas from England and English books and pamphlets largely provided their
cultural fare.64 But although these settlers escaped from Europe to be freed from
bondage of laws which compelled them to support and attend government favored
churches, some of these settlers themselves transplanted into American soil the
oppressive practices they escaped from. The charters granted by the English Crown
to the individuals and companies designated to make the laws which would control
the destinies of the colonials authorized them to erect religious establishments,
which all, whether believers or not, were required to support or attend.65 At one
time, six of the colonies established a state religion. Other colonies, however, such
as Rhode Island and Delaware tolerated a high degree of religious diversity. Still
others, which originally tolerated only a single religion, eventually extended support
to several different faiths.66

This was the state of the American colonies when the unique American experiment
of separation of church and state came about. The birth of the experiment cannot
be attributed to a single cause or event. Rather, a number of interdependent
practical and ideological factors contributed in bringing it forth. Among these were
the "English Act of Toleration of 1689, the multiplicity of sects, the lack of church
affiliation on the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the success of
their experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and deism."67 Each of these
factors shall be briefly discussed.

First, the practical factors. England's policy of opening the gates of the American
colonies to different faiths resulted in the multiplicity of sects in the colonies. With
an Erastian justification, English lords chose to forego protecting what was
considered to be the true and eternal church of a particular time in order to
encourage trade and commerce. The colonies were large financial investments
which would be profitable only if people would settle there. It would be difficult to
engage in trade with persons one seeks to destroy for religious belief, thus
tolerance was a necessity. This tended to distract the colonies from their
preoccupations over their religion and its exclusiveness, encouraging them "to think
less of the Church and more of the State and of commerce."68 The diversity
brought about by the colonies' open gates encouraged religious freedom and nonestablishment in several ways. First, as there were too many dissenting sects to
abolish, there was no alternative but to learn to live together. Secondly, because of
the daily exposure to different religions, the passionate conviction in the exclusive
rightness of one's religion, which impels persecution for the sake of one's religion,
waned. Finally, because of the great diversity of the sects, religious uniformity was
not possible, and without such uniformity, establishment could not survive.69

But while there was a multiplicity of denomination, paradoxically, there was a


scarcity of adherents. Only about four percent of the entire population of the
country had a church affiliation at the time the republic was founded.70 This might
be attributed to the drifting to the American colonies of the skepticism that
characterized European Enlightenment.71 Economic considerations might have also
been a factor. The individualism of the American colonist, manifested in the
multiplicity of sects, also resulted in much unaffiliated religion which treated religion
as a personal non-institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who were not
connected with any church were not likely to persecute others for similar
independence nor accede to compulsory taxation to support a church to which they
did not belong.72

However, for those who were affiliated to churches, the colonial policy regarding
their worship generally followed the tenor of the English Act of Toleration of 1689. In
England, this Act conferred on Protestant dissenters the right to hold public services
subject to registration of their ministers and places of worship.73 Although the
toleration accorded to Protestant dissenters who qualified under its terms was only
a modest advance in religious freedom, it nevertheless was of some influence to the
American experiment.74 Even then, for practical considerations, concessions had to
be made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an
evangelical religious revival originating in New England, caused a break with formal
church religion and a resistance to coercion by established churches. This
movement emphasized an emotional, personal religion that appealed directly to the
individual, putting emphasis on the rights and duties of the individual conscience
and its answerability exclusively to God. Thus, although they had no quarrel with
orthodox Christian theology as in fact they were fundamentalists, this group
became staunch advocates of separation of church and state.75

Then there was the Williams-Penn tradition. Roger Williams was the founder of the
colony of Rhode Island where he established a community of Baptists, Quakers and
other nonconformists. In this colony, religious freedom was not based on practical
considerations but on the concept of mutual independence of religion and
government. In 1663, Rhode Island obtained a charter from the British crown which
declared that settlers have it "much on their heart to hold forth a livelie experiment
that a most flourishing civil state may best be maintained . . . with full libertie in
religious concernments."76 In Williams' pamphlet, The Bloudy Tenent of Persecution
for cause of Conscience, discussed in a Conference between Truth and Peace,77 he
articulated the philosophical basis for his argument of religious liberty. To him,
religious freedom and separation of church and state did not constitute two but only
one principle. Religious persecution is wrong because it "confounds the Civil and
Religious" and because "States . . . are proved essentially Civil. The "power of true
discerning the true fear of God" is not one of the powers that the people have
transferred to Civil Authority.78 Williams' Bloudy Tenet is considered an epochal
milestone in the history of religious freedom and the separation of church and
state.79

William Penn, proprietor of the land that became Pennsylvania, was also an ardent
advocate of toleration, having been imprisoned for his religious convictions as a
member of the despised Quakers. He opposed coercion in matters of conscience
because "imposition, restraint and persecution for conscience sake, highly invade
the Divine prerogative." Aside from his idealism, proprietary interests made
toleration in Pennsylvania necessary. He attracted large numbers of settlers by
promising religious toleration, thus bringing in immigrants both from the Continent
and Britain. At the end of the colonial period, Pennsylvania had the greatest variety
of religious groups. Penn was responsible in large part for the "Concessions and
agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in
America", a monumental document in the history of civil liberty which provided
among others, for liberty of conscience.80 The Baptist followers of Williams and the
Quakers who came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise
greatly contributed to the evolution of separation and freedom.81 The
Constitutional fathers who convened in Philadelphia in 1787, and Congress and the
states that adopted the First Amendment in 1791 were very familiar with and
strongly influenced by the successful examples of Rhode Island and Pennsylvania.82

Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was so
widely accepted as to be deemed self-evident truth in America's Declaration of
Independence. With the doctrine of natural rights and equality set forth in the
Declaration of Independence, there was no room for religious discrimination. It was
difficult to justify inequality in religious treatment by a new nation that severed its
political bonds with the English crown which violated the self-evident truth that all
men are created equal.83

The social contract theory was applied by many religious groups in arguing against
establishment, putting emphasis on religion as a natural right that is entirely
personal and not within the scope of the powers of a political body. That Locke and
the social contract theory were influential in the development of religious freedom
and separation is evident from the memorial presented by the Baptists to the
Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an intention in every one
the better to preserve himself, his liberty and property. The power of the society, or
Legislature constituted by them, can never be supposed to extend any further than
the common good, but is obliged to secure every one's property. To give laws, to
receive obedience, to compel with the sword, belong to none but the civil

magistrate; and on this ground we affirm that the magistrate's power extends not to
establishing any articles of faith or forms of worship, by force of laws; for laws are of
no force without penalties. The care of souls cannot belong to the civil magistrate,
because his power consists only in outward force; but pure and saving religion
consists in the inward persuasion of the mind, without which nothing can be
acceptable to God.84 (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or Christ did
not desire that government have that jurisdiction ("render unto Caesar that which is
Caesar's"; "my kingdom is not of this world") and to the rationalist, the power to act
in the realm of religion was not one of the powers conferred on government as part
of the social contract.85

Not only the social contract theory drifted to the colonies from Europe. Many of the
leaders of the Revolutionary and post-revolutionary period were also influenced by
European deism and rationalism,86 in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized religion. Jefferson,
Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to
be among the Unitarians or Deists. Unitarianism and Deism contributed to the
emphasis on secular interests and the relegation of historic theology to the
background.87 For these men of the enlightenment, religion should be allowed to
rise and fall on its own, and the state must be protected from the clutches of the
church whose entanglements has caused intolerance and corruption as witnessed
throughout history.88 Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the popularity of
Paine's Age of Reason.89

Finally, the events leading to religious freedom and separation in Virginia


contributed significantly to the American experiment of the First Amendment.
Virginia was the "first state in the history of the world to proclaim the decree of
absolute divorce between church and state."90 Many factors contributed to this,
among which were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts, the established
Anglican Church of Virginia found themselves on the losing side of the Revolution
and had alienated many influential laymen with its identification with the Crown's
tyranny, and above all, present in Virginia was a group of political leaders who were
devoted to liberty generally,91 who had accepted the social contract as selfevident, and who had been greatly influenced by Deism and Unitarianism. Among

these leaders were Washington, Patrick Henry, George Mason, James Madison and
above the rest, Thomas Jefferson.

The first major step towards separation in Virginia was the adoption of the following
provision in the Bill of Rights of the state's first constitution:

That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and therefore, all men are equally entitled to the free exercise of religion
according to the dictates of conscience; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each other.92 (emphasis
supplied)

The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first legislative
assembly with petitions for abolition of establishment. While the majority of the
population were dissenters, a majority of the legislature were churchmen. The
legislature compromised and enacted a bill in 1776 abolishing the more oppressive
features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from
worship and requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not only wanted
abolition of support for the establishment, they opposed the compulsory support of
their own religion as others. As members of the established church would not allow
that only they would pay taxes while the rest did not, the legislature enacted in
1779 a bill making permanent the establishment's loss of its exclusive status and its
power to tax its members; but those who voted for it did so in the hope that a
general assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every person to
enroll his name with the county clerk and indicate which "society for the purpose of
Religious Worship" he wished to support. On the basis of this list, collections were to
be made by the sheriff and turned over to the clergymen and teachers designated
by the religious congregation. The assessment of any person who failed to enroll in
any society was to be divided proportionately among the societies.94 The bill
evoked strong opposition.

In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the
Christian Religion" was introduced requiring all persons "to pay a moderate tax or

contribution annually for the support of the Christian religion, or of some Christian
church, denomination or communion of Christians, or for some form of Christian
worship."95 This likewise aroused the same opposition to the 1779 bill. The most
telling blow against the 1784 bill was the monumental "Memorial and Remonstrance
against Religious Assessments" written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785.96 It stressed natural rights, the
government's lack of jurisdiction over the domain of religion, and the social contract
as the ideological basis of separation while also citing practical considerations such
as loss of population through migration. He wrote, viz:

Because we hold it for a 'fundamental and undeniable truth,' that religion, or the
duty which we owe to our creator, and the manner of discharging it, can be directed
only by reason and conviction, not by force or violence. The religion, then, of every
man, must be left to the conviction and conscience of every man; and it is the right
of every man to exercise it as these may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the opinions of men, depending only on
the evidence contemplated in their own minds, cannot follow the dictates of other
men; it is unalienable, also, because what is here a right towards men, is a duty
towards the creator. It is the duty of every man to render the creator such homage,
and such only as he believes to be acceptable to him; this duty is precedent, both in
order of time and degree of obligation, to the claims of civil society. Before any man
can be considered as a member of civil society, he must be considered as a subject
of the governor of the universe; and if a member of civil society, who enters into
any subordinate association, must always do it with a reservation of his duty to the
general authority, much more must every man who becomes a member of any
particular civil society do it with the saving his allegiance to the universal
sovereign.97 (emphases supplied)

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by
the great number of signatures appended to the Memorial. The assessment bill was
speedily defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill of
Jefferson which had not been voted on, the "Bill for Establishing Religious Freedom",
and it was finally passed in January 1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to
influence it by temporal punishments or burdens, or by civil incapacitations, tend

not only to beget habits of hypocrisy and meanness, and are a departure from the
plan of the Holy Author of our religion, who being Lord both of body and mind, yet
chose not to propagate it by coercions on either, as was in his Almighty power to
do;

xxx

xxx

xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to


frequent or support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of religion, and that
the same shall in no wise diminish, enlarge or affect their civil capacities.98
(emphases supplied)

This statute forbade any kind of taxation in support of religion and effectually ended
any thought of a general or particular establishment in Virginia.99 But the passage
of this law was obtained not only because of the influence of the great leaders in
Virginia but also because of substantial popular support coming mainly from the two
great dissenting sects, namely the Presbyterians and the Baptists. The former were
never established in Virginia and an underprivileged minority of the population. This
made them anxious to pull down the existing state church as they realized that it
was impossible for them to be elevated to that privileged position. Apart from these
expediential considerations, however, many of the Presbyterians were sincere
advocates of separation100 grounded on rational, secular arguments and to the
language of natural religion.101 Influenced by Roger Williams, the Baptists, on the
other hand, assumed that religion was essentially a matter of concern of the
individual and his God, i.e., subjective, spiritual and supernatural, having no relation
with the social order.102 To them, the Holy Ghost was sufficient to maintain and
direct the Church without governmental assistance and state-supported religion was
contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104
Jefferson's religious freedom statute was a milestone in the history of religious
freedom. The United States Supreme Court has not just once acknowledged that the
provisions of the First Amendment of the U.S. Constitution had the same objectives
and intended to afford the same protection against government interference with
religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that government had no
power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be deduced from
the prohibition of any religious test for federal office in Article VI of the Constitution
and the assumed lack of power of Congress to act on any subject not expressly
mentioned in the Constitution.105 However, omission of an express guaranty of
religious freedom and other natural rights nearly prevented the ratification of the
Constitution.106 In the ratifying conventions of almost every state, some objection
was expressed to the absence of a restriction on the Federal Government as regards
legislation on religion.107 Thus, in 1791, this restriction was made explicit with the
adoption of the religion clauses in the First Amendment as they are worded to this
day, 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.

VI. Religion Clauses in the United States:


Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion
clauses comes 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 Congress renders it difficult to ascertain its meaning.108 Consequently, the
jurisprudence in this area is volatile and fraught with inconsistencies whether within
a Court decision or across decisions.

One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s, religion
played a primary role in social life - i.e., family responsibilities, education, health
care, poor relief, and other aspects of social life with significant moral dimension while government played a supportive and indirect role by maintaining conditions in
which these activities may be carried out by religious or religiously-motivated
associations. Today, government plays this primary role and religion plays the
supportive role.109 Government runs even family planning, sex education, adoption
and foster care programs.110 Stated otherwise and with some exaggeration,
"(w)hereas two centuries ago, in matters of social life which have a significant moral

dimension, government was the handmaid of religion, today religion, in its social
responsibilities, as contrasted with personal faith and collective worship, is the
handmaid of government."111 With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly, there may
be inadvertent collisions between purely secular government actions and religion
clause values.112

Parallel to this expansion of government has been the expansion of religious


organizations in population, physical institutions, types of activities undertaken, and
sheer variety of denominations, sects and cults. Churches run day-care centers,
retirement homes, hospitals, schools at all levels, research centers, settlement
houses, halfway houses for prisoners, sports facilities, theme parks, publishing
houses and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the line
between many types of activities undertaken by religious groups and secular
activities. Churches have also concerned themselves with social and political issues
as a necessary outgrowth of religious faith as witnessed in pastoral letters on war
and peace, economic justice, and human life, or in ringing affirmations for racial
equality on religious foundations. Inevitably, these developments have brought
about substantial entanglement of religion and government. Likewise, the growth in
population density, mobility and diversity has significantly changed the environment
in which religious organizations and activities exist and the laws affecting them are
made. It is no longer easy for individuals to live solely among their own kind or to
shelter their children from exposure to competing values. The result is disagreement
over what laws should require, permit or prohibit;113 and agreement that if the
rights of believers as well as non-believers are all to be respected and given their
just due, a rigid, wooden interpretation of the religion clauses that is blind to
societal and political realities must be avoided.114

Religion cases arise from different circumstances. The more obvious ones arise from
a government action which purposely aids or inhibits religion. These cases are
easier to resolve as, in general, these actions are plainly unconstitutional. Still, this
kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit
religion.115 The more difficult religion clause cases involve government action with
a secular purpose and general applicability which incidentally or inadvertently aids
or burdens religious exercise. In Free Exercise Clause cases, these government
actions are referred to as those with "burdensome effect" on religious exercise even
if the government action is not religiously motivated.116 Ideally, the legislature
would recognize the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the legislature fails to do

so, religions that are threatened and burdened turn to the courts for protection.117
Most of these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome" effect.118

With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for purposes
of interpreting the religion clauses has also been modified to suit current realities.
Defining religion is a difficult task for even theologians, philosophers and moralists
cannot agree on a comprehensive definition. Nevertheless, courts must define
religion for constitutional and other legal purposes.119 It was in the 1890 case of
Davis v. Beason120 that the United States Supreme Court first had occasion to
define religion, viz:

The term 'religion' has reference to one's views of his relations to his Creator, and to
the obligations they impose of reverence for his being and character, and of
obedience to his will. It is often confounded with the cultus or form of worship of a
particular sect, but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law respecting the
establishment of religion, or forbidding the free exercise thereof, was intended to
allow everyone under the jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose as may be
approved by his judgment and conscience, and to exhibit his sentiments in such
form of worship as he may think proper, not injurious to the equal rights of others,
and to prohibit legislation for the support of any religious tenets, or the modes of
worship of any sect.121

The definition was clearly theistic which was reflective of the popular attitudes in
1890.

In 1944, the Court stated in United States v. Ballard122 that the free exercise of
religion "embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths."123 By the
1960s, American pluralism in religion had flourished to include non-theistic creeds
from Asia such as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v.
Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism,
Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger126 which involved four men who
claimed "conscientious objector" status in refusing to serve in the Vietnam War. One

of the four, Seeger, was not a member of any organized religion opposed to war, but
when specifically asked about his belief in a Supreme Being, Seeger stated that
"you could call (it) a belief in a Supreme Being or God. These just do not happen to
be the words that I use." Forest Peter, another one of the four claimed that after
considerable meditation and reflection "on values derived from the Western
religious and philosophical tradition," he determined that it would be "a violation of
his moral code to take human life and that he considered this belief superior to any
obligation to the state." The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion in
the Universal Military Training and Service Act of 1940 which exempt from combat
anyone "who, by reason of religious training and belief, is conscientiously opposed
to participation in war in any form." Speaking for the Court, Justice Clark ruled, viz:

Congress, in using the expression 'Supreme Being' rather than the designation
'God,' was merely clarifying the meaning of religious tradition and belief so as to
embrace all religions and to exclude essentially political, sociological, or
philosophical views (and) the test of belief 'in relation to a Supreme Being' is
whether a given belief that is sincere and meaningful occupies a place in the life of
its possessor parallel to the orthodox belief in God. (emphasis supplied)

The Court was convinced that Seeger, Peter and the others were conscientious
objectors possessed of such religious belief and training.

Federal and state courts have expanded the definition of religion in Seeger to
include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been
proposed that basically, a creed must meet four criteria to qualify as religion under
the First Amendment. First, there must be belief in God or some parallel belief that
occupies a central place in the believer's life. Second, the religion must involve a
moral code transcending individual belief, i.e., it cannot be purely subjective. Third,
a demonstrable sincerity in belief is necessary, but the court must not inquire into
the truth or reasonableness of the belief.127 Fourth, there must be some
associational ties,128 although there is also a view that religious beliefs held by a
single person rather than being part of the teachings of any kind of group or sect
are entitled to the protection of the Free Exercise Clause.129

Defining religion is only the beginning of the difficult task of deciding religion clause
cases. Having hurdled the issue of definition, the court then has to draw lines to
determine what is or is not permissible under the religion clauses. In this task, the

purpose of the clauses is the yardstick. Their purpose is singular; they are two sides
of the same coin.130 In devoting two clauses to religion, the Founders were stating
not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different circumstances.131
The purpose of the religion clauses - both in the restriction it imposes on the power
of the government to interfere with the free exercise of religion and the limitation on
the power of government to establish, aid, and support religion - is the protection
and promotion of religious liberty.132 The end, the goal, and the rationale of the
religion clauses is this liberty.133 Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are directed is
government-induced homogeneity.134 The Free Exercise Clause directly articulates
the common objective of the two clauses and the Establishment Clause specifically
addresses a form of interference with religious liberty with which the Framers were
most familiar and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing establishment is
a necessary means to this end to protect the rights of those who might dissent from
whatever religion is established.136 It has even been suggested that the sense of
the First Amendment is captured if it were to read as "Congress shall make no law
respecting an establishment of religion or otherwise prohibiting the free exercise
thereof" because the fundamental and single purpose of the two religious clauses is
to "avoid any infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to protect each from
the other, in service of the larger goal of preserving religious liberty. The effect of
the separation is to limit the opportunities for any religious group to capture the
state apparatus to the disadvantage of those of other faiths, or of no faith at all138
because history has shown that religious fervor conjoined with state power is likely
to tolerate far less religious disagreement and disobedience from those who hold
different beliefs than an enlightened secular state.139 In the words of the U.S.
Supreme Court, the two clauses are interrelated, viz: "(t)he 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."140

In upholding religious liberty as the end goal in religious clause cases, the line the
court draws to ensure that government does not establish and instead remains
neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:

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.141 (emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably different,142 even


opposing, strains of jurisprudence on the religion clauses: separation (in the form of
strict separation or the tamer version of strict neutrality or separation) and
benevolent neutrality or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains, the scope of
protection of each clause, and the tests used in religious clause cases. Most of these
cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v.
United States.143 This landmark case involved Reynolds, a Mormon who proved
that it was his religious duty to have several wives and that the failure to practice
polygamy by male members of his religion when circumstances would permit would
be punished with damnation in the life to come. Reynolds' act of contracting a
second marriage violated Section 5352, Revised Statutes prohibiting and penalizing
bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using
what in jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jefferson's Bill Establishing Religious
Freedom which, according to the Court, declares "the true distinction between what
properly belongs to the Church and what to the State."144 The bill, making a
distinction between belief and action, states in relevant part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion, and
to restrain the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and good
order.145 (emphasis supplied)

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free
to reach actions which were in violation of social duties or subversive of good
order. . .

Laws are made for the government of actions, and while they cannot interfere with
mere religious belief and opinions, they may with practices. Suppose one believed
that human sacrifice were a necessary part of religious worship, would it be
seriously contended that the civil government under which he lived could not
interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to
burn herself upon the funeral pile of her dead husband, would it be beyond the
power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the
United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law of
the land, and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances.146

The construct was thus simple: the state was absolutely prohibited by the Free
Exercise Clause from regulating individual religious beliefs, but placed no restriction
on the ability of the state to regulate religiously motivated conduct. It was logical for
belief to be accorded absolute protection because any statute designed to prohibit a
particular religious belief unaccompanied by any conduct would most certainly be
motivated only by the legislature's preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for religious
reasons violative of the Free Exercise Clause. On the other hand, most state
regulations of conduct are for public welfare purposes and have nothing to do with
the legislature's religious preferences. Any burden on religion that results from state
regulation of conduct arises only when particular individuals are engaging in the
generally regulated conduct because of their particular religious beliefs. These
burdens are thus usually inadvertent and did not figure in the belief-action test. As
long as the Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.147 The Free Exercise Clause thus gave
no protection against the proscription of actions even if considered central to a
religion unless the legislature formally outlawed the belief itself.148

This belief-action distinction was held by the Court for some years as shown by
cases where the Court upheld other laws which burdened the practice of the
Mormon religion by imposing various penalties on polygamy such as the Davis case
and Church of Latter Day Saints v. United States.149 However, more than a century
since Reynolds was decided, the Court has expanded the scope of protection from
belief to speech and conduct. But while the belief-action test has been abandoned,
the rulings in the earlier Free Exercise cases have gone unchallenged. The beliefaction distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.150

The Free Exercise Clause accords absolute protection to individual religious


convictions and beliefs151 and proscribes government from questioning a person's
beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause
extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,152 a
unanimous Court struck down a state law requiring as a qualification for public
office an oath declaring belief in the existence of God. The protection also allows
courts to look into the good faith of a person in his belief, but prohibits inquiry into
the truth of a person's religious beliefs. As held in United States v. Ballard,153
"(h)eresy trials are foreign to the Constitution. Men may believe what they cannot
prove. They may not be put to the proof of their religious doctrines or beliefs."

Next to belief which enjoys virtually absolute protection, religious speech and
expressive religious conduct are accorded the highest degree of protection. Thus, in
the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law
prohibiting door-to-door solicitation for any religious or charitable cause without
prior approval of a state agency. The law was challenged by Cantwell, a member of
the Jehovah's Witnesses which is committed to active proselytizing. The Court
invalidated the state statute as the prior approval necessary was held to be a
censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields the tenets of one may seem the rankest error to his neighbor. To
persuade others to his point of view, the pleader, as we know, resorts to
exaggeration, to vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation have ordained in
the light of history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right conduct on
the part of citizens of a democracy.155

Cantwell took a step forward from the protection afforded by the Reynolds case in
that it not only affirmed protection of belief but also freedom to act for the
propagation of that belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society. . . In every case, the
power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom. (emphasis supplied)156

The Court stated, however, that government had the power to regulate the times,
places, and manner of solicitation on the streets and assure the peace and safety of
the community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that
police could not prohibit members of the Jehovah's Witnesses from peaceably and
orderly proselytizing on Sundays merely because other citizens complained. In
another case likewise involving the Jehovah's Witnesses, Niemotko v. Maryland,158
the Court unanimously held unconstitutional a city council's denial of a permit to the
Jehovah's Witnesses to use the city park for a public meeting. The city council's
refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to
questions about Catholicism, military service, and other issues. The denial of the
public forum was considered blatant censorship. While protected, religious speech
in the public forum is still subject to reasonable time, place and manner regulations
similar to non-religious speech. Religious proselytizing in congested areas, for
example, may be limited to certain areas to maintain the safe and orderly flow of
pedestrians and vehicular traffic as held in the case of Heffron v. International
Society for Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in
the form of unconventional religious practices. Protection in this realm depends on
the character of the action and the government rationale for regulating the
action.160 The Mormons' religious conduct of polygamy is an example of
unconventional religious practice. As discussed in the Reynolds case above, the
Court did not afford protection to the practice. Reynolds was reiterated in the 1890
case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not
the less odious because sanctioned by what any particular sect may designate as
religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test,
regulation of religiously dictated conduct would be upheld no matter how central
the conduct was to the exercise of religion and no matter how insignificant was the
government's non-religious regulatory interest so long as the government is
proscribing action and not belief. Thus, the Court abandoned the simplistic beliefaction distinction and instead recognized the deliberate-inadvertent distinction, i.e.,
the distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and government's inadvertent
interference with religion in pursuing some secular objective.162 In the 1940 case
of Minersville School District v. Gobitis,163 the Court upheld a local school board
requirement that all public school students participate in a daily flag salute
program, including the Jehovah's Witnesses who were forced to salute the American
flag in violation of their religious training, which considered flag salute to be worship
of a "graven image." The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses' practice of
their religion, but justified the government regulation as an appropriate means of
attaining national unity, which was the "basis of national security." Thus, although
the Court was already aware of the deliberate-inadvertent distinction in government
interference with religion, it continued to hold that the Free Exercise Clause
presented no problem to interference with religion that was inadvertent no matter
how serious the interference, no matter how trivial the state's non-religious
objectives, and no matter how many alternative approaches were available to the
state to pursue its objectives with less impact on religion, so long as government
was acting in pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette164 which involved a similar set of facts and issue. The Court recognized
that saluting the flag, in connection with the pledges, was a form of utterance and
the flag salute program was a compulsion of students to declare a belief. The Court
ruled that "compulsory unification of opinions leads only to the unanimity of the
graveyard" and exempt the students who were members of the Jehovah's Witnesses
from saluting the flag. A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said, "(n)or does the issue
as we see it turn on one's possession of particular religious views or the sincerity
with which they are held. While religion supplies appellees' motive for enduring the
discomforts of making the issue in this case, many citizens who do not share these
religious views hold such a compulsory rite to infringe constitutional liberty of the
individual." (emphasis supplied)165 The Court pronounced, however, that,
"freedoms of speech and of press, of assembly, and of worship . . . are susceptible
only of restriction only to prevent grave and immediate danger to interests which
the state may lawfully protect."166 The Court seemed to recognize the extent to

which its approach in Gobitis subordinated the religious liberty of political minorities
- a specially protected constitutional value - to the common everyday economic and
public welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the Free
Exercise Clause with only grave and immediate danger sufficing to override religious
liberty. But the seeds of this heightened scrutiny would only grow to a full flower in
the 1960s.167

Nearly a century after Reynolds employed the belief-action test, the Warren Court
began the modern free exercise jurisprudence.168 A two-part balancing test was
established in Braunfeld v. Brown169 where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs
required them to observe another day as the Sabbath and abstain from commercial
activity on Saturday. Chief Justice Warren, writing for the Court, found that the law
placed a severe burden on Sabattarian retailers. He noted, however, that since the
burden was the indirect effect of a law with a secular purpose, it would violate the
Free Exercise Clause only if there were alternative ways of achieving the state's
interest. He employed a two-part balancing test of validity where the first step was
for plaintiff to show that the regulation placed a real burden on his religious
exercise. Next, the burden would be upheld only if the state showed that it was
pursuing an overriding secular goal by the means which imposed the least burden
on religious practices.170 The Court found that the state had an overriding secular
interest in setting aside a single day for rest, recreation and tranquility and there
was no alternative means of pursuing this interest but to require Sunday as a
uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of
Sherbert v. Verner.171 This test was similar to the two-part balancing test in
Braunfeld,172 but this latter test stressed that the state interest was not merely any
colorable state interest, but must be paramount and compelling to override the free
exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment was terminated for
refusal to work on Saturdays on religious grounds. Her claim was denied. She
sought recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the Court
ruled, viz:

Plainly enough, 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 rights 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. . .' NAACP
v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement to
the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, '[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530, 89 L
ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling
state interest to override 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,175 viz:

It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought
to be granted unless some 'compelling state interest' intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as
early as Braunfeld), the Court moved from the doctrine that inadvertent or
incidental interferences with religion raise no problem under the Free Exercise
Clause to the doctrine that such interferences violate the Free Exercise Clause in the
absence of a compelling state interest - the highest level of constitutional scrutiny
short of a holding of a per se violation. Thus, the problem posed by the belief-action
test and the deliberate-inadvertent distinction was addressed.176

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger
Court, the rationale in Sherbert continued to be applied. In Thomas v. Review
Board177 and Hobbie v. Unemployment Appeals Division,178 for example, the Court
reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an
employee who resigned or was discharged due to unwillingness to depart from
religious practices and beliefs that conflicted with job requirements. But not every
governmental refusal to allow an exemption from a regulation which burdens a
sincerely held religious belief has been invalidated, even though strict or
heightened scrutiny is applied. In United States v. Lee,179 for instance, the Court
using strict scrutiny and referring to Thomas, upheld the federal government's
refusal to exempt Amish employers who requested for exemption from paying social
security taxes on wages on the ground of religious beliefs. The Court held that
"(b)ecause the broad public interest in maintaining a sound tax system is of such a
high order, religious belief in conflict with the payment of taxes affords no basis for
resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would
significantly impair government's achievement of its objective - "the fiscal vitality of
the social security system;" mandatory participation is indispensable to attain this
objective. The Court noted that if an exemption were made, it would be hard to
justify not allowing a similar exemption from general federal taxes where the
taxpayer argues that his religious beliefs require him to reduce or eliminate his
payments so that he will not contribute to the government's war-related activities,
for example.

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 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.181

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where
the Court upheld the religious practice of the Old Order Amish faith over the state's
compulsory high school attendance law. The Amish parents in this case did not
permit secular education of their children beyond the eighth grade. 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 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. . .
183

The onset of the 1990s, however, saw a major setback in the protection afforded by
the Free Exercise Clause. In Employment Division, Oregon Department of Human
Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed
from the heightened scrutiny and compelling justification approach and imposed
serious limits on the scope of protection of religious freedom afforded by the First
Amendment. In this case, the well-established practice of the Native American
Church, a sect outside the Judeo-Christian mainstream of American religion, came in
conflict with the state's interest in prohibiting the use of illicit drugs. Oregon's
controlled substances statute made the possession of peyote a criminal offense.

Two members of the church, Smith and Black, worked as drug rehabilitation
counselors for a private social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental
ceremony practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as "job-related misconduct".
They applied for unemployment compensation, but the Oregon Employment
Appeals Board denied their application as they were discharged for job-related
misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the
exercise of religion . . . is . . . merely the incidental effect of a generally applicable
and otherwise valid law, the First Amendment has not been offended." In other
words, the Free Exercise Clause would be offended only if a particular religious
practice were singled out for proscription. The majority opinion relied heavily on the
Reynolds case and in effect, equated Oregon's drug prohibition law with the antipolygamy statute in Reynolds. The relevant portion of the majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert
test except the denial of unemployment compensation.

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. . .

We conclude today that the sounder approach, and the approach in accord with the
vast majority of our precedents, is to hold the test inapplicable to such challenges.
The government's ability to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of public policy, "cannot
depend on measuring the effects of a governmental action on a religious objector's
spiritual development." . . .To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs except where the
State's interest is "compelling" - permitting him, by virtue of his beliefs, "to become
a law unto himself," . . . - contradicts both constitutional tradition and common
sense.

Justice O'Connor wrote a concurring opinion pointing out that the majority's
rejection of the compelling governmental interest test was the most controversial
part of the decision. Although she concurred in the result that the Free Exercise
Clause had not been offended, she sharply criticized the majority opinion as a
dramatic departure "from well-settled First Amendment jurisprudence. . . and . . .

(as) incompatible with our Nation's fundamental commitment to religious liberty."


This portion of her concurring opinion was supported by Justices Brennan, Marshall
and Blackmun who dissented from the Court's decision. Justice O'Connor asserted
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'." Justice Blackmun registered a separate dissenting
opinion, joined by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law concerning the
Religion Clauses of our Constitution." He pointed out that the Native American
Church restricted and supervised the sacramental use of peyote. Thus, the state
had no significant health or safety justification for regulating the sacramental drug
use. He also observed that Oregon had not attempted to prosecute Smith or Black,
or any Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that "Oregon's interest in enforcing its drug laws against
religious use of peyote (was) not sufficiently compelling to outweigh respondents'
right to the free exercise of their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's
standard in Smith virtually eliminated the requirement that the government justify
with a compelling state interest the burdens on religious exercise imposed by laws
neutral toward religion. The Smith doctrine is highly unsatisfactory in several
respects and has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.185 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. A
deliberate regulatory interference with minority religious freedom is the worst form
of this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an
interference with the minority's religious freedom. If the regulation had instead
restricted the majority's religious practice, the majoritarian legislative process would
in all probability have modified or rejected the regulation. Thus, the imposition of
the political majority's non-religious objectives at the expense of the minority's
religious interests implements the majority's religious viewpoint at the expense of
the minority's. Second, 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. Third, the Reynolds-Gobitis-Smith 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.186

Thus, the Smith decision has been criticized not only for increasing the power of the
state over religion but as discriminating in favor of mainstream religious groups
against smaller, more peripheral groups who lack legislative clout,187 contrary to
the original theory of the First Amendment.188 Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless minority
religions and Smith virtually wiped out their judicial recourse for exemption.189
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.190 So much was the uproar that a majority in
Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of
1993. The RFRA prohibited government at all levels from substantially burdening a
person's free exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a compelling state
interest and the rule constituted the least restrictive means of furthering that
interest.191 RFRA, in effect, sought to overturn the substance of the Smith ruling
and restore the status quo prior to Smith. Three years after the RFRA was enacted,
however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of
Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital principles
necessary to maintain separation of powers and the federal balance." It emphasized
the primacy of its role as interpreter of the Constitution and unequivocally rejected,
on broad institutional grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which
was ruled consistent with the Smith doctrine. This case involved animal sacrifice of
the Santeria, a blend of Roman Catholicism and West African religions brought to
the Carribean by East African slaves. An ordinance made it a crime to
"unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual
or ceremony not for the primary purpose of food consumption." The ordinance came
as a response to the local concern over the sacrificial practices of the Santeria.
Justice Kennedy, writing for the majority, carefully pointed out that the questioned
ordinance was not a generally applicable criminal prohibition, but instead singled
out practitioners of the Santeria in that it forbade animal slaughter only insofar as it
took place within the context of religious rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are highly

protected but subject to restraints applicable to non-religious speech, and


unconventional religious practice receives less protection; nevertheless conduct,
even if its violates a law, could be accorded protection as shown in Wisconsin.194

B. Establishment Clause

The Court's first encounter with the Establishment Clause was in the 1947 case of
Everson v. Board of Education.195 Prior cases had made passing reference to the
Establishment Clause196 and raised establishment questions but were decided on
other grounds.197 It was in the Everson case that the U.S. Supreme Court adopted
Jefferson's metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. The often and loosely used
phrase "separation of church and state" does not appear in the U.S. Constitution. It
became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v.
United States198 quoted Jefferson's famous letter of 1802 to the Danbury Baptist
Association in narrating the history of the religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions, I
contemplate with sovereign reverence that act of the whole American people which
declared that their Legislature should 'make no law respecting an establishment of
religion or prohibiting the free exercise thereof,' thus building a wall of separation
between Church and State.199 (emphasis supplied)

Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does
from an acknowledged leader of the advocates of the measure, it may be accepted
almost as an authoritative declaration of the scope and effect of the amendment
thus secured."200

The interpretation of the Establishment Clause has in large part been in cases
involving education, notably state aid to private religious schools and prayer in
public schools.201 In Everson v. Board of Education, for example, the issue was
whether a New Jersey local school board could reimburse parents for expenses
incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children in
public schools and nonprofit private schools, regardless of religion, were entitled to

reimbursement for transportation costs. Justice Hugo Black, writing for a sharply
divided Court, justified the reimbursements on the child benefit theory, i.e., that the
school board was merely furthering the state's legitimate interest in getting children
"regardless of their religion, safely and expeditiously to and from accredited
schools." The Court, after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause, viz:

The 'establishment of religion' clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or remain away from church
against his will or force him to profess a belief or disbelief in any religion. No person
can be punished for entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion. Neither a
state nor the Federal Government can, openly or secretly participate in the affairs of
any religious organizations or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was intended to erect "a wall of
separation between Church and State."202

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must
be kept high and impregnable. We could not approve the slightest breach. New
Jersey has not breached it here.203

By 1971, the Court integrated the different elements of the Court's Establishment
Clause jurisprudence that evolved in the 1950s and 1960s and laid down a threepronged test in Lemon v. Kurtzman204 in determining the constitutionality of
policies challenged under the Establishment Clause. This case involved a
Pennsylvania statutory program providing publicly funded reimbursement for the
cost of teachers' salaries, textbooks, and instructional materials in secular subjects
and a Rhode Island statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the following criteria
to pass scrutiny under the Establishment Clause. "First, the statute must have a
secular legislative purpose; second, its primary or principal effect must be one that
neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243,

20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster 'an
excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25
L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205 Using this test, the
Court held that the Pennsylvania statutory program and Rhode Island statute were
unconstitutional as fostering excessive entanglement between government and
religion.

The most controversial of the education cases involving the Establishment Clause
are the school prayer decisions. "Few decisions of the modern Supreme Court have
been criticized more intensely than the school prayer decisions of the early
1960s."206 In the 1962 case of Engel v. Vitale,207 the Court invalidated a New York
Board of Regents policy that established the voluntary recitation of a brief generic
prayer by children in the public schools at the start of each school day. The majority
opinion written by Justice Black stated that "in this country it is no part of the
business of government to compose official prayers for any group of the American
people to recite as part of a religious program carried on by government." In fact,
history shows that this very practice of establishing governmentally composed
prayers for religious services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America. The Court called
to mind that the first and most immediate purpose of the Establishment Clause
rested on the belief that a union of government and religion tends to destroy
government and to degrade religion. The following year, the Engel decision was
reinforced in Abington School District v. Schempp208 and Murray v. Curlett209
where the Court struck down the practice of Bible reading and the recitation of the
Lord's prayer in the Pennsylvania and Maryland schools. The Court held that to
withstand the strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits religion.
It reiterated, viz:

The wholesome 'neutrality' of which this Court's cases speak thus stems from 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 State of Federal
Government would be placed behind the tenets of one or of all orthodoxies. This the
Establishment Clause prohibits. And a further reason for neutrality is found in the
Free Exercise Clause, which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to freely choose his
own course with reference thereto, free of any compulsion from the state.210

The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.211 On several occasions, constitutional
amendments have been introduced in Congress to overturn the school prayer
decisions. Still, the Court has maintained its position and has in fact reinforced it in
the 1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law
that required public school students to observe a moment of silence "for the
purpose of meditation or voluntary prayer" at the start of each school day.

Religious instruction in public schools has also pressed the Court to interpret the
Establishment Clause. Optional religious instruction within public school premises
and instructional time were declared offensive of the Establishment Clause in the
1948 case of McCollum v. Board of Education,213 decided just a year after the
seminal Everson case. In this case, interested members of the Jewish, Roman
Catholic and a few Protestant faiths obtained permission from the Board of
Education to offer classes in religious instruction to public school students in grades
four to nine. Religion classes were attended by pupils whose parents signed printed
cards requesting that their children be permitted to attend. The classes were taught
in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi
and were held weekly from thirty to forty minutes during regular class hours in the
regular classrooms of the school building. The religious teachers were employed at
no expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not choose to take
religious instruction were required to leave their classrooms and go to some other
place in the school building for their secular studies while those who were released
from their secular study for religious instruction were required to attend the
religious classes. The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a prohibited use of
tax-established and tax-supported public school system to aid religious groups
spread their faith. The Court rejected the claim that the Establishment Clause only
prohibited government preference of one religion over another and not an impartial
governmental assistance of all religions. In Zorach v. Clauson,214 however, the
Court upheld released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other students
attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he
First Amendment does not require that in every and all respects there shall be a
separation of Church and State." The Court distinguished Zorach from McCollum,
viz:

In the McCollum case the classrooms were used for religious instruction and the
force of the public school was used to promote that instruction. . . We follow the
McCollum case. But we cannot expand it to cover the present released time
program unless separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the religious needs of the
people. We cannot read into the Bill of Rights such a philosophy of hostility to
religion.215

In the area of government displays or affirmations of belief, the Court has given
leeway to religious beliefs and practices which have acquired a secular meaning
and have become deeply entrenched in history. For instance, in McGowan v.
Maryland,216 the Court upheld laws that prohibited certain businesses from
operating on Sunday despite the obvious religious underpinnings of the restrictions.
Citing the secular purpose of the Sunday closing laws and treating as incidental the
fact that this day of rest happened to be the day of worship for most Christians, the
Court held, viz:

It is common knowledge that the first day of the week has come to have special
significance as a rest day in this country. People of all religions and people with no
religion regard Sunday as a time for family activity, for visiting friends and relatives,
for later sleeping, for passive and active entertainments, for dining out, and the
like.217

In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate


Nebraska's policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers' expense. The majority opinion did not
rely on the Lemon test and instead drew heavily from history and the need for
accommodation of popular religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200 years, there can
be no doubt that the practice of opening legislative sessions with prayer has
become the fabric of our society. To invoke Divine guidance on a public body
entrusted with making the laws is not, in these circumstances, an "establishment"
of religion or a step toward establishment; it is simply a tolerable acknowledgement
of beliefs widely held among the people of this country. As Justice Douglas
observed, "(w)e are a religious people whose institutions presuppose a Supreme
Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied)

Some view the Marsh ruling as a mere aberration as the Court would "inevitably be
embarrassed if it were to attempt to strike down a practice that occurs in nearly
every legislature in the United States, including the U.S. Congress."220 That Marsh
was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch
v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By
a 5-4 decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a "neutral harbinger of
the holiday season" for many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption.
By tradition, church and charitable institutions have been exempt from local
property taxes and their income exempt from federal and state income taxes. In the
1970 case of Walz v. Tax Commission,222 the New York City Tax Commission's grant
of property tax exemptions to churches as allowed by state law was challenged by
Walz on the theory that this required him to subsidize those churches indirectly. The
Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as
such; rather, it has granted exemptions to all houses of religious worship within a
broad class of property owned by non-profit, quasi-public corporations . . . The State
has an affirmative policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the
public interest.223

The Court added that the exemption was not establishing religion but "sparing the
exercise of religion from the burden of property taxation levied on private profit
institutions"224 and preventing excessive entanglement between state and religion.
At the same time, the Court acknowledged the long-standing practice of religious
tax exemption and the Court's traditional deference to legislative bodies with
respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life,
beginning with pre-Revolutionary colonial times, than for the government to
exercise . . . this kind of benevolent neutrality toward churches and religious
exercise generally so long as none was favored over others and none suffered
interference.225 (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the
religious clauses area, are but a small fraction of the hundreds of religion clauses
cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or
making nuances of the above cases may be cited. Professor McConnell poignantly
recognizes this, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to


lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]),
but unconstitutional for a state to set aside a moment of silence in the schools for
children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
unconstitutional for a state to require employers to accommodate their employees'
work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472
US 703, 709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency between
work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4
[1963]). It is constitutional for the government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior (Bowen v.
Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon
v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to
provide religious school pupils with books (Board of Education v. Allen, 392 US 236,
238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]);
with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17
[1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US
229, 252-55 [1977]); with cash to pay for state-mandated standardized tests
(Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54
[1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v.
Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226

But the purpose of the overview is not to review the entirety of the U.S. religion
clause jurisprudence nor to extract the prevailing case law regarding particular
religious beliefs or conduct colliding with particular government regulations. Rather,
the cases discussed above suffice to show that, as legal scholars observe, this area
of jurisprudence has demonstrated two main standards used by the Court in
deciding religion clause cases: separation (in the form of strict separation or the
tamer version of strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of sheer
volume, appears to lie with the separationists, strict or tame.227 But the
accommodationists have also attracted a number of influential scholars and

jurists.228 The two standards producing two streams of jurisprudence branch out
respectively from the history of the First Amendment in England and the American
colonies and climaxing in Virginia as narrated in this opinion and officially
acknowledged by the Court in Everson, and from American societal life which
reveres religion and practices age-old religious traditions. Stated otherwise,
separation - strict or tame - protects the principle of church-state separation with a
rigid reading of the principle while benevolent neutrality protects religious realities,
tradition and established practice with a flexible reading of the principle.229 The
latter also appeals to history in support of its position, viz:

The opposing school of thought argues that the First Congress intended to allow
government support of religion, at least as long as that support did not discriminate
in favor of one particular religion. . . the Supreme Court has overlooked many
important pieces of history. Madison, for example, was on the congressional
committee that appointed a chaplain, he declared several national days of prayer
and fasting during his presidency, and he sponsored Jefferson's bill for punishing
Sabbath breakers; moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent book, 'there is no
support in the Congressional records that either the First Congress, which framed
the First Amendment, or its principal author and sponsor, James Madison, intended
that Amendment to create a state of complete independence between religion and
government. In fact, the evidence in the public documents goes the other way.230
(emphasis supplied)

To succinctly and poignantly illustrate the historical basis of benevolent neutrality


that gives room for accommodation, 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. Only two
members of Congress opposed the resolution, one on the ground that the move was
a "mimicking of European customs, where they made a mere mockery of
thanksgivings", the other on establishment clause concerns. Nevertheless, the
salutary effect of thanksgivings throughout Western history was acknowledged and
the motion was passed without further recorded discussion.231 Thus,
accommodationists also go back to the framers to ascertain the meaning of the First
Amendment, but prefer to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19th century and that
America was less specifically Christian during those years than at any other time
before or since,232 accommodationaists claim that American citizens at the time of

the Constitution's origins were a remarkably religious people in particularly Christian


terms.233

The two streams of jurisprudence - separationist or accommodationist - are


anchored on a different reading of the "wall of separation." The strict separtionist
view holds that Jefferson meant the "wall of separation" to protect the state from
the church. Jefferson was a man of the Enlightenment Era of the eighteenth century,
characterized by the rationalism and anticlericalism of that philosophic bent.234 He
has often been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine law, and
instead adhering to a secular belief in a universal harmony.235 Thus, according to
this Jeffersonian view, the Establishment Clause being meant to protect the state
from the church, the state's hostility towards religion allows no interaction between
the two.236 In fact, when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with religion.237 This
approach erects an absolute barrier to formal interdependence of religion and state.
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.238 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.239 Strict separation faces difficulties, however, as it is deeply embedded
in 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. Thus, strict separationists are caught in an awkward
position of claiming a constitutional principle that has never existed and is never
likely to.240

A tamer version of the strict separationist view, the strict neutrality or separationist
view is largely used by the Court, showing the Court's tendency to press relentlessly
towards a more secular society.241 It finds basis in the Everson case where the
Court declared that Jefferson's "wall of separation" encapsulated the meaning of the
First Amendment but at the same time held that the First Amendment "requires the
state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more
to be used so as to handicap religions than it is to favor them." (emphasis
supplied)242 While the strict neutrality approach is not hostile to religion, 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.243 Professor Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the
first amendment is that the freedom and separation clauses should be read as a
single precept that government cannot utilize religion as a standard for action or
inaction because these clauses prohibit classification in terms of religion either to
confer a benefit or to impose a burden.244

The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted this
policy of neutrality to prohibit government from acting except for secular purposes
and in ways that have primarily secular effects.245

Prayer in public schools is an area where the Court has applied strict neutrality and
refused to allow any form of prayer, spoken or silent, in the public schools as in
Engel and Schempp.246 The McCollum case prohibiting optional religious instruction
within public school premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the government
action as they were based not on a secular but on a religious purpose. Strict
neutrality was also used in Reynolds and Smith which both held that if government
acts in pursuit of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not been offended.
However, if the strict neutrality standard is applied in interpreting the Establishment
Clause, it could de facto void religious expression in the Free Exercise Clause. As
pointed out by Justice Goldberg in his concurring opinion in Schempp, 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.247 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 Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious classifications.248

The separationist approach, whether strict or tame, is caught in a dilemma because


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.249 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.250

Consequently, the Court has also decided cases employing benevolent neutrality.
Benevolent neutrality which gives room for accommodation is buttressed by a
different view of the "wall of separation" associated with Williams, founder of the
Rhode Island colony. In Mark DeWolfe Howe's classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of separation in
mind, it was unlike the Jeffersonian wall that is meant to protect the state from the
church; instead, the wall is meant to protect the church from the state,251 i.e., the
"garden" of the church must be walled in for its own protection from the
"wilderness" of the world252 with its potential for corrupting those values so
necessary to religious commitment.253 Howe called this the "theological" or
"evangelical" rationale for church-state separation while the wall espoused by
"enlightened" statesmen such as Jefferson and Madison, was a "political" rationale
seeking to protect politics from intrusions by the church.254 But it has been
asserted that this contrast between the Williams and Jeffersonian positions is more
accurately described as a difference in kinds or styles of religious thinking, not as a
conflict between "religious" and "secular (political)"; the religious style was biblical
and evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation.255

The Williams wall is, however, breached for the church is in the state and so the
remaining purpose of the wall is to safeguard religious liberty. Williams' view would
therefore allow for interaction between church and state, but is strict with regard to
state action which would threaten the integrity of religious commitment.256 His
conception of separation is not total such that it provides basis for certain
interactions between church and state dictated by apparent necessity or
practicality.257 This "theological" view of separation is found in Williams' writings,
viz:

. . . when they have opened a gap in the hedge or wall of separation between the
garden of the church and the wilderness of the world, God hath ever broke down the

wall itself, removed the candlestick, and made his garden a wilderness, as this day.
And that therefore if He will eer please to restore His garden and paradise again, it
must of necessity be walled in peculiarly unto Himself from the world. . .258

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

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.259 (emphasis supplied)

The Zorach case expressed the doctrine of accommodation,260 viz:

The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the manner,
the specific ways, in which there shall be no concert or union or dependency one or
the other. That is the common sense of the matter. Otherwise, the state and religion
would be aliens to each other - hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages of the
Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the supplication
with which the Court opens each session: 'God save the United States and this
Honorable Court.

xxx

xxx

xxx

We are a religious people whose institutions presuppose a Supreme Being. We


guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the

schedule of public events, it follows the best of our traditions. For it then respects
the religious nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it necessary for government
to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence.261 (emphases supplied)

Benevolent neutrality is congruent with the sociological proposition that religion


serves a function essential to the survival of society itself, thus there is no human
society without one or more ways of performing the essential function of religion.
Although for some individuals there may be no felt need for religion and thus it is
optional or even dispensable, for society it is not, which is why there is no human
society without one or more ways of performing the essential function of religion.
Even in ostensibly atheistic societies, there are vigorous underground religion(s) and
surrogate religion(s) in their ideology.262 As one sociologist wrote:

It is widely held by students of society that there are certain functional prerequisites
without which society would not continue to exist. At first glance, this seems to be
obvious - scarcely more than to say that an automobile could not exist, as a going
system, without a carburetor. . . Most writers list religion among the functional
prerequisites.263

Another noted sociologist, Talcott Parsons, wrote: "There is no known human society
without something which modern social scientists would classify as a religion
Religion is as much a human universal as language."264

Benevolent neutrality thus 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.265 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 lowcost 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.266 The persistence of these de facto establishments are in large part
explained by the fact that throughout history, the evangelical theory of separation,
i.e., Williams' wall, has demanded respect for these de facto establishments.267 But
the separationists have a different explanation. To characterize these as de jure
establishments according to the principle of the Jeffersonian wall, the U.S. Supreme
Court, the many dissenting and concurring opinions explain some of these practices
as "'de minimis' instances of government endorsement or as historic governmental
practices that have largely lost their religious significance or at least have proven
not to lead the government into further involvement with religion.268

With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations
are government policies that take religion specifically into account not to promote
the government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. Their purpose or effect therefore 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 accountto
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."269 (emphasis supplied) Accommodation is
forbearance and not alliance. it does not reflect agreement with the minority, but
respect for the conflict between the temporal and spiritual authority in which the
minority finds itself.270

Accommodation is distinguished from strict neutrality in that the latter holds that
government should base public policy solely on secular considerations, without
regard to the religious consequences of its actions. The debate between
accommodation and strict neutrality is at base a question of means: "Is the freedom
of religion best achieved when the government is conscious of the effects of its
action on the various religious practices of its people, and seeks to minimize
interferences with those practices? Or is it best advanced through a policy of
'religious blindness' - keeping government aloof from religious practices and
issues?" An accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate efforts to
avoid interference with religious freedom. On the other hand, the strict neutrality
adherent believes that it is good public policy, and also constitutionally required, for

the government to avoid religion-specific policy even at the cost of inhibiting


religious exercise.271

There are strong and compelling reasons, however, to take the accommodationist
position rather than the strict neutrality position. First, the accommodationist
interpretation is most consistent with the language of the First Amendment. The
religion clauses contain two parallel provisions, both specifically directed at
"religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most
plausibly as warding off two equal and opposite threats to religious freedom government action that promotes the (political) majority's favored brand of religion
and government action that impedes religious practices not favored by the majority.
The substantive end in view is the preservation of the autonomy of religious life and
not just the formal process value of ensuring that government does not act on the
basis of religious bias. On the other hand, strict neutrality interprets the religion
clauses as allowing government to do whatever it desires to or for religion, as long
as it does the same to or for comparable secular entities. Thus, for example, if
government prohibits all alcoholic consumption by minors, it can prohibit minors
from taking part in communion. Paradoxically, this view would make the religion
clauses violate the religion clauses, so to speak, since the religion clauses single out
religion by name for special protection. Second, the accommodationist position best
achieves the purposes of the First Amendment. 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. Although
inalienable, it is necessarily limited by the rights of others, including the public right
of peace and good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of the purpose of
the First Amendment requires more than the "religion blindness" of strict neutrality.
With the pervasiveness of government regulation, conflicts with religious practices
become frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government must make
special provisions to preserve a degree of independence for religious entities for
them to carry out their religious missions according to their religious beliefs.
Otherwise, religion will become just like other secular entities subject to pervasive
regulation by majoritarian institutions. Third, the accommodationist interpretation is
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. 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, the accommodationist position is practical as it is a commonsensical
way to deal with the various needs and beliefs of different faiths in a pluralistic
nation. Without accommodation, many otherwise beneficial laws would interfere
severely with religious freedom. Aside from laws against serving alcoholic
beverages to minors conflicting with celebration of communion, regulations
requiring hard hats in construction areas can effectively exclude Amish and Sikhs
from the workplace, or employment anti-discrimination laws can conflict with the
Roman Catholic male priesthood, among others. Exemptions from such laws are
easy to craft and administer and contribute much to promoting religious freedom at
little cost to public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment of the
population or dispensing with legislation it considers beneficial to society as a
whole. Exemption seems manifestly more reasonable than either of the alternative:
no exemption or no law.272

Benevolent neutrality gives room for different kinds of accommodation: those which
are constitutionally compelled, i.e., required by the Free Exercise Clause; and those
which are discretionary or legislative, i.e., and those not required by the Free
Exercise Clause but nonetheless permitted by the Establishment Clause.273 Some
Justices of the Supreme Court have also used the term accommodation to describe
government actions that acknowledge or express prevailing religious sentiments of
the community such as display of a religious symbol on public property or the
delivery of a prayer at public ceremonial events.274 Stated otherwise, using
benevolent neutrality as a standard could result to three situations of
accommodation: those where accommodation is required, those where it is
permissible, and those where it is prohibited. In the first situation, accommodation
is required to preserve free exercise protections and not unconstitutionally infringe
on religious liberty or create penalties for religious freedom. Contrary to the Smith
declaration that free exercise exemptions are "intentional government
advancement", these exemptions merely relieve the prohibition on the free exercise
thus allowing the burdened religious adherent to be left alone. The state must

create exceptions to laws of general applicability when these laws threaten religious
convictions or practices in the absence of a compelling state interest.275 By
allowing such exemptions, the Free Exercise Clause does not give believers the right
or privilege to choose for themselves to override socially-prescribed decision; it
allows them to obey spiritual rather than temporal authority276 for those who
seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty.
Religious freedom is a matter less of rights than duties; more precisely, it is a
matter of rights derived from duties. To deny a person or a community the right to
act upon such a duty can be justified only by appeal to a yet more compelling duty.
Of course, those denied will usually not find the reason for the denial compelling.
"Because they may turn out to be right about the duty in question, and because,
even if they are wrong, religion bears witness to that which transcends the political
order, such denials should be rare and painfully reluctant."277

The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.278 In these cases of
"burdensome effect", the modern approach of the Court has been to apply strict
scrutiny, i.e., to declare the burden as permissible, the Court requires the state to
demonstrate that the regulation which burdens the religious exercise pursues a
particularly important or compelling government goal through the least restrictive
means. If the 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, such
an exemption must be given.279 This approach of the Court on "burdensome effect"
was only applied since the 1960s. Prior to this time, the Court took the separationist
view that as long as the state was acting in pursuit of non-religious ends and
regulating conduct rather than pure religious beliefs, the Free Exercise Clause did
not pose a hindrance such as in Reynolds.280 In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate
religious interests. The Walz case illustrates this situation where the Court upheld
the constitutionality of tax exemption given by New York to church properties, but
did not rule that the state was required to provide tax exemptions. The Court
declared that "(t)he limits of permissible state accommodation to religion are by no
means co-extensive with the noninterference mandated by the Free Exercise
Clause."281 The Court held that New York could have an interest in encouraging
religious values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public schools
and Marsh allowing payment of legislative chaplains from public funds. Finally, in
the situation where accommodation is prohibited, establishment concerns prevail
over potential accommodation interests. To say that there are valid exemptions

buttressed by the Free Exercise Clause does not mean that all claims for free
exercise exemptions are valid.282 An example where accommodation was
prohibited is McCollum where the Court ruled against optional religious instruction
in the public school premises.283 In effect, the last situation would arrive at a strict
neutrality conclusion.

In the first situation where accommodation is required, the approach follows this
basic framework:

If the plaintiff can show that a law or government practice inhibits the free exercise
of his religious beliefs, the burden shifts to the government to demonstrate that the
law or practice is necessary to the accomplishment of some important (or
'compelling') secular objective and that it is the least restrictive means of achieving
that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the 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.284

In other words, a three-step process (also referred to as the "two-step balancing


process" supra when the second and third steps are combined) as in Sherbert is
followed in weighing the state's interest and religious freedom when these collide.
Three questions are answered in this process. First, "(h)as the statute or
government action created a burden on the free exercise of religion?" The courts
often look into the sincerity of the religious belief, but without inquiring into the
truth of the belief because the Free Exercise Clause prohibits inquiring about its
truth as held in Ballard and Cantwell. The sincerity of the claimant's belief is
ascertained to avoid the mere claim of religious beliefs to escape a mandatory
regulation. As evidence of sincerity, the U.S. Supreme Court has considered
historical evidence as in Wisconsin where the Amish people had held a longstanding objection to enrolling their children in ninth and tenth grades in public high
schools. In another case, Dobkin v. District of Columbia,285 the Court denied the
claim of a party who refused to appear in court on Saturday alleging he was a
Sabbatarian, but the Court noted that he regularly conducted business on Saturday.
Although it is true that the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all claims by not allowing
accommodation as a rule. There might be injury to the particular claimant or to his
religious community, but for the most part, the injustice is done only in the

particular case.286 Aside from the sincerity, the court may look into the centrality
of those beliefs, assessing them not on an objective basis but in terms of the
opinion and belief of the person seeking exemption. In Wisconsin, for example, the
Court noted that the Amish people's convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in Sherbert, the
Court concluded that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming exemption, viz:

On the claimant's side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh custom,
individual conscience should count for more than personal convenience, and
theological principle should be of greater significance than institutional ease.
Sincerity matters, (footnote omitted) and longevity of practice - both by the
individual and within the individual's religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and expansive, recognizing
non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the intensity
and scope of fundamentalist creed.288

Second, the court asks: "(i)s there a sufficiently compelling state interest to justify
this infringement of religious liberty?" In this step, the government has to establish
that its purposes are legitimate for the state and that they are compelling.
Government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if
exemptions are granted.289 The person claiming religious freedom, on the other
hand, will endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of religious liberty.
This step involves balancing, i.e., weighing the interest of the state against religious
liberty to determine which is more compelling under the particular set of facts. The
greater the state's interests, the more central the religious belief would have to be
to overcome it. In assessing the state interest, the court will have to determine the
importance of the secular interest and the extent to which that interest will be
impaired by an exemption for the religious practice. Should the court find the
interest truly compelling, there will be no requirement that the state diminish the
effectiveness of its regulation by granting the exemption.290

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the
least intrusive means possible so that the free exercise is not infringed any more
than necessary to achieve the legitimate goal of the state?"291 The analysis
requires the state to show that the means in which it is achieving its legitimate

state objective is the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties. In
Cantwell, for example, the Court invalidated the license requirement for the door-todoor solicitation as it was a forbidden burden on religious liberty, noting that less
drastic means of insuring peace and tranquility existed. As a whole, in carrying out
the compelling state interest test, the Court should give careful attention to context,
both religious and regulatory, to achieve refined judgment.292

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing


values of secular government and religious freedom create tensions that make
constitutional law on the subject of religious liberty unsettled, mirroring the evolving
views of a dynamic society.293

VII. Religion Clauses in the Philippines

A. History

Before our country fell under American rule, the blanket of Catholicism covered the
archipelago. There was a union of church and state and Catholicism was the state
religion under the Spanish Constitution of 1876. Civil authorities exercised religious
functions and the friars exercised civil powers.294 Catholics alone enjoyed the right
of engaging in public ceremonies of worship.295 Although the Spanish Constitution
itself was not extended to the Philippines, Catholicism was also the established
church in our country under the Spanish rule. Catholicism was in fact protected by
the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the
offenses in chapter six of the Penal Code entitled "Crimes against Religion and
Worship" referred to crimes against the state religion.296 The coming of the
Americans to our country, however, changed this state-church scheme for with the
advent of this regime, the unique American experiment of "separation of church and
state" was transported to Philippine soil.

Even as early as the conclusion of the Treaty of Paris between the United States and
Spain on December 10, 1898, the American guarantee of religious freedom had
been extended to the Philippines. The Treaty provided that "the inhabitants of the
territories over which Spain relinquishes or cedes her sovereignty shall be secured
in the free exercise of religion."297 Even the Filipinos themselves guaranteed
religious freedom a month later or on January 22, 1899 upon the adoption of the

Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It


provided that "the State recognizes the liberty and equality of all religion (de todos
los cultos) in the same manner as the separation of the Church and State." But the
Malolos Constitution and government was short-lived as the Americans took over
the reigns of government.298

With the Philippines under the American regime, President McKinley issued
Instructions to the Second Philippine Commission, the body created to take over the
civil government in the Philippines in 1900. The Instructions guaranteed religious
freedom, viz:

That no law shall be made respecting the 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
... that no form of religion and no minister of religion shall be forced upon the
community or upon any citizen of the Islands, that, on the other hand, no minister of
religion shall be interfered with or molested in following his calling.299

This provision was based on the First Amendment of the United States Constitution.
Likewise, the Instructions declared that "(t)he separation between State and Church
shall be real, entire and absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of


religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill
of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free


exercise thereof, and that free exercise and enjoyment of religious worship, without
discrimination or preference, shall forever be allowed.

In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the
complete separation of church and state, and the abolition of all special privileges
and all restrictions theretofor conferred or imposed upon any particular religious
sect."302

The Jones Law of 1916 carried the same provision, but expanded it with a restriction
against using public money or property for religious purposes, viz:

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; and no religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated, applied, donated, 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 teachers or dignitary as
such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of


1934 which guaranteed independence to the Philippines and authorized the drafting
of a Philippine constitution. It enjoined Filipinos to include freedom of religion in
drafting their constitution preparatory to the grant of independence. The law
prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or property on
account of religious belief or mode of worship."303

The Constitutional Convention then began working on the 1935 Constitution. In their
proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights
acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first
introduced religious toleration in our country. President McKinley's Instructions to
the Second Philippine Commission reasserted this right which later was
incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance
with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:

Sec. 7. 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 or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the
Convention.305 In his speech as Chairman of the Committee on Bill of Rights,

Delegate Laurel said that modifications in phraseology of the Bill of Rights in the
Jones Law were avoided whenever possible because "the principles must remain
couched in a language expressive of their historical background, nature, extent and
limitations as construed and interpreted by the great statesmen and jurists that
vitalized them."306

The 1973 Constitution which superseded the 1935 Constitution contained an almost
identical provision on religious freedom in the Bill of Rights in Article IV, Section 8,
viz:

Sec. 8. 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.

This time, however, the General Provisions in Article XV added in Section 15 that
"(t)he separation of church and state shall be inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious


clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article
III, Section 5.307 Likewise, the provision on separation of church and state was
included verbatim in the 1987 Constitution, but this time as a principle in Section 6,
Article II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to
adopt the historical background, nature, extent and limitations of the First
Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights,
it is not surprising that nearly all the major Philippine cases involving the religion
clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of
these clauses. However, a close scrutiny of these cases would also reveal that while
U.S. jurisprudence on religion clauses flows into two main streams of interpretation separation and benevolent neutrality - the well-spring of Philippine jurisprudence on
this subject is for the most part, benevolent neutrality which gives room for
accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we


begin with the definition of "religion". "Religion" is derived from the Middle English
religioun, from Old French religion, from Latin religio, vaguely referring to a "bond
between man and the gods."308 This pre-Christian term for the cult and rituals of
pagan Rome was first Christianized in the Latin translation of the Bible.309 While
the U.S. Supreme Court has had to take up the challenge of defining the parameters
and contours of "religion" to determine whether a non-theistic belief or act is
covered by the religion clauses, this Court has not been confronted with the same
issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has
thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v.
Ruiz310 involving the Establishment Clause, defined "religion" as a "profession of
faith to an active power that binds and elevates man to his Creator." Twenty years
later, the Court cited the Aglipay definition in American Bible Society v. City of
Manila,311 a case involving the Free Exercise clause. The latter also cited the
American case of Davis in defining religion, viz: "(i)t has reference to one's views of
his relations to His Creator and to the obligations they impose of reverence to His
being and character and obedience to His Will." The Beason definition, however, has
been expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits
any degree of compulsion or burden, whether direct or indirect, in the practice of
one's religion. The Free Exercise Clause principally guarantees voluntarism,
although the Establishment Clause also assures voluntarism by placing the burden
of the advancement of religious groups on their intrinsic merits and not on the
support of the state.312

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The
early case of Gerona v. Secretary of Education313 is instructive on the matter, viz:

The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.314

The difficulty in interpretation sets in when belief is externalized into speech and
action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in
the American Bible Society case. In that case, plaintiff American Bible Society was a
foreign, non-stock, non-profit, religious missionary corporation which sold bibles and
gospel portions of the bible in the course of its ministry. The defendant City of
Manila required plaintiff 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."

After defining religion, the Court, citing Tanada and Fernando, made this statement,
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. (Tanada and Fernando on
the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)

This was the Court's maiden unequivocal affirmation of the "clear and present
danger" rule in the religious freedom area, and in Philippine jurisprudence, for that
matter.315 The case did not clearly show, however, whether the Court proceeded to
apply the test to the facts and issues of the case, i.e., it did not identify the secular
value the government regulation sought to protect, whether the religious speech
posed a clear and present danger to this or other secular value protected by
government, or whether there was danger but it could not be characterized as clear
and present. It is one thing to apply the test and find that there is no clear and
present danger, and quite another not to apply the test altogether.

Instead, 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. To add, the Court, citing Murdock v. Pennsylvania,316
ruled that applying the ordinance 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." Thus, in American Bible
Society, the "clear and present danger" rule was laid down but it was not clearly
applied.

In the much later case of Tolentino v. Secretary of Finance,317 also involving the
sale of religious books, the Court distinguished the American Bible Society case
from the facts and issues in Tolentino and did not apply the American Bible Society
ruling. In Tolentino, the Philippine Bible Society challenged the validity of the
registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The
Court held, however, that the fixed amount of registration fee was not imposed for
the exercise of a privilege like a license tax which American Bible Society ruled was
violative of religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a central
feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of
Equalization,318 the Court also declared prefatorily that "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." In the Court's
resolution of the motion for reconsideration of the Tolentino decision, the Court
noted that the burden on religious freedom caused by the tax was just similar to
any other economic imposition that might make the right to disseminate religious
doctrines costly.

Two years after American Bible Society came the 1959 case of Gerona v. Secretary
of Education,319 this time involving conduct expressive of religious belief colliding
with a rule prescribed in accordance with law. In this case, petitioners were
members of the Jehovah's Witnesses. They challenged a Department Order issued
by the Secretary of Education implementing Republic Act No. 1265 which prescribed
compulsory flag ceremonies in all public schools. In violation of the Order,
petitioner's children refused to salute the Philippine flag, sing the national anthem,
or recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their refusal was
on account of their religious belief that the Philippine flag is an image and saluting
the same is contrary to their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of


society and with the law, then the former must yield to the latter. The Government
steps in and either restrains said exercise or even prosecutes the one exercising it.
(emphasis supplied)320

The Court then proceeded to determine if the acts involved constituted a religious
ceremony in conflict with the beliefs of the petitioners with the following
justification:

After all, the determination of whether a certain ritual is or is not a religious


ceremony must rest with the courts. It cannot be left to a religious group or sect,
much less to a follower of said group or sect; otherwise, there would be confusion
and misunderstanding for there might be as many interpretations and meaning to
be given to a certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all sincerity and
good faith, may want to give to such ritual or ceremony.321

It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the national
anthem as it speaks only of love of country, patriotism, liberty and the glory of
suffering and dying for it. The Court upheld the questioned Order and the expulsion
of petitioner's children, stressing that:

Men may differ and do differ on religious beliefs and creeds, government policies,
the wisdom and legality of laws, even the correctness of judicial decisions and
decrees; but in the field of love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in which they are
mutually and vitally interested, for to them, they mean national existence and
survival as a nation or national extinction.322

In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette
case, viz:

The constitutional protection of religious freedom x x x 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.323

It stated in categorical terms, viz:

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.324

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is
incumbent upon the Court to determine whether a certain ritual is religious or not;
(2) religious freedom will not be upheld if it clashes with the established institutions
of society and with the law such that when a law of general applicability (in this
case the Department Order) incidentally burdens the exercise of one's religion,
one's right to religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et
al.325

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope
Workers Union.[326] In this unanimously decided en banc case, Victoriano was a
member of the Iglesia ni Cristo which prohibits the affiliation of its members with
any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a
member of the Elizalde Rope Workers Union which had with the company a closed
shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the application
and coverage of a closed shop agreement employees belonging to any religious
sect which prohibits affiliation of their members with any labor organization.
Victoriano resigned from the union after Republic Act No. 3350 took effect. The
union notified the company of Victoriano's resignation, which in turn notified
Victoriano that unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano sought to
enjoin the company and the union from dismissing him. The court having granted
the injunction, the union came to this Court on questions of law, among which was
whether Republic Act No. 3350 was unconstitutional for impairing the obligation of
contracts and for granting an exemption offensive of the Establishment Clause. With
respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and


liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146)
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.327 (emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional
provision on establishment and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by
law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of
one's chosen form of religion within limits of utmost amplitude. It has been said that
the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. (footnote omitted). Any
legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. (Sherbert v. Verner,
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)

Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from
pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." It also cited Board of Education v. Allen,330 which
held that in order to withstand the strictures of constitutional prohibition, a statute
must have a secular legislative purpose and a primary effect that neither advances
nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the
Court pointed out, viz:

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons
be refused work, or be dismissed from work, or be dispossessed of their right to

work and of being impeded to pursue a modest means of livelihood, by reason of


union security agreements. . . . The primary effects of the exemption from closed
shop agreements in favor of members of religious sects that prohibit their members
from affiliating with a labor organization, is the protection of said employees against
the aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent
economic insecurity due to unemployment.331

The Court stressed that "(a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor unions,
the benefit upon the religious sects is merely incidental and indirect."332 In
enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by
certain persons of a burden imposed by union security agreements which Congress
itself also imposed through the Industrial Peace Act. The Court concluded the issue
of exemption by citing Sherbert which laid down the rule that when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. The Court then abruptly added that "(i)n the
instant case, We see no compelling state interest to withhold exemption."333

A close look at Victoriano would show that the Court mentioned several tests in
determining when religious freedom may be validly limited. First, the Court
mentioned the test of "immediate and grave danger to the security and welfare of
the community" and "infringement of religious freedom only to the smallest extent
necessary" to justify limitation of religious freedom. Second, religious exercise may
be indirectly burdened by a general law which has for its purpose and effect the
advancement of the state's secular goals, provided that there is no other means by
which the state can accomplish this purpose without imposing such burden. Third,
the Court referred to the "compelling state interest" test which grants exemptions
when general laws conflict with religious exercise, unless a compelling state interest
intervenes.

It is worth noting, however, that the first two tests were mentioned only for the
purpose of highlighting the importance of the protection of religious freedom as the
secular purpose of Republic Act No. 3350. Upholding religious freedom was a
secular purpose insofar as it relieved the burden on religious freedom caused by
another law, i.e, the Industrial Peace Act providing for union shop agreements. The
first two tests were only mentioned in Victoriano but were not applied by the Court
to the facts and issues of the case. The third, the "compelling state interest" test
was employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating

that there was no "compelling state interest" to strike it down. However, after
careful consideration of the Sherbert case from which Victoriano borrowed this test,
the inevitable conclusion is that the "compelling state interest" test was not
appropriate and could not find application in the Victoriano case. In Sherbert,
appellant Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act which
disqualified her from claiming unemployment benefits. It was the appellees,
members of the South Carolina Employment Commission, a government agency,
who propounded the state interest to justify overriding Sherbert's claim of religious
freedom. The U.S. Supreme Court, considering Sherbert's and the Commission's
arguments, found that the state interest was not sufficiently compelling to prevail
over Sherbert's free exercise claim. This situation did not obtain in the Victoriano
case where it was the government itself, through Congress, which provided the
exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus,
the government could not argue against the exemption on the basis of a compelling
state interest as it would be arguing against itself; while Victoriano would not seek
exemption from the questioned law to allow the free exercose of religion as the law
in fact provides such an exemption. In sum, although Victoriano involved a religious
belief and conduct, it did not involve a free exercise issue where the Free Exercise
Clause is invoked to exempt him from the burden imposed by a law on his religious
freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely
Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de
Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v.
Central Azucarera de Tarlac Labor Union.336

Then came German v. Barangan in 1985 at the height of the anti-administration


rallies. Petitioners were walking to St. Jude Church within the Malacanang security
area to pray for "an end to violence" when they were barred by the police. Invoking
their constitutional freedom of religious worship and locomotion, they came to the
Court on a petition for mandamus to allow them to enter and pray inside the St.
Jude Chapel. The Court was divided on the issue. The slim majority of six recognized
their freedom of religion but noted their absence of good faith and concluded that
they were using their religious liberty to express their opposition to the government.
Citing Cantwell, the Court distinguished between freedom to believe and freedom to
act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the second cannot
be.337

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief
or choice of their religion, but only in the manner by which they had attempted to
translate the same to action. This curtailment is in accord with the pronouncement
of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite
a stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)

The majority found that the restriction imposed upon petitioners was "necessary to
maintain the smooth functioning of the executive branch of the government, which
petitioners' mass action would certainly disrupt"338 and denied the petition. Thus,
without considering the tests mentioned in Victoriano, German went back to the
Gerona rule that religious freedom will not be upheld if it clashes with the
established institutions of society and the law.

Then Associate Justice Teehankee registered a dissent which in subsequent


jurisprudence would be cited as a test in religious freedom cases. His dissent stated
in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the


landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in
resolving the issues.

1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of
Rights. (footnote omitted) Freedom of worship, alongside with freedom of

expression and speech and peaceable assembly "along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary - even more so than on the other
departments - rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitously termed by Justice Holmes 'as
the sovereign prerogative of judgment.' Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they
do precedence and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint


although there may be subsequent punishment of any illegal acts committed during
the exercise of such basic rights. The sole justification for a prior restraint or
limitation on the exercise of these basic rights is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent (Idem, at pp. 560-561).339 (emphasis
supplied)

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's
dissent was taken involved the rights to free speech and assembly, and not the
exercise of religious freedom. At issue in that case was a permit sought by retired
Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to
hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy.
Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble and petition
the government for redress of grievances.340

In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony
again came before the Court in Ebralinag v. The Division Superintendent of
Schools.341 A unanimous Court overturned the Gerona ruling after three decades.
Similar to Gerona, this case involved several 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
same religious freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice Teehankee's dissent in
German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified.342 (emphasis supplied)

The Court added, viz:

We are not persuaded that by exempting the 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 v. Secretary of Education, 106
Phil. 224). After all, what the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a
vocation or profession and be taught the virtues of 'patriotism, respect for human
rights, appreciation of national heroes, the rights and duties of citizenship, and
moral and spiritual values' (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring
about the very situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of country or respect
for duly constituted authorities.343

Barnette also found its way to the opinion, viz:

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).344

Towards the end of the decision, the Court also cited the Victoriano case and its use
of the "compelling state interest" test in according exemption to the Jehovah's
Witnesses, viz:

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 group:

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

We hold that a similar exemption may be accorded to the 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.345

The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion in
German which involved prior restraint of religious worship with overtones of the
right to free speech and assembly, was transported to Ebralinag which did not
involve prior restraint of religious worship, speech or assembly. Although, it might
be observed that the Court faintly implied that Ebralinag also involved the right to
free speech when in its preliminary remarks, the Court stated that compelling
petitioners to participate in the flag ceremony "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;" the Court then stated in a footnote that the "flag salute, singing the
national anthem and reciting the patriotic pledge are all forms of utterances."346

The "compelling state interest" test was not fully applied by the Court in Ebralinag.
In the Solicitor General's consolidated comment, one of the grounds cited to defend
the expulsion orders issued by the public respondents was that "(t)he State's
compelling interests being pursued by the DEC'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."347 The Court, however, referred to the test only towards the end of
the decision and did not even mention what the Solicitor General argued as the
compelling state interest, much less did the Court explain why the interest was not
sufficiently compelling to override petitioners' religious freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v.
Court of Appeals, et al.348 Although there was a dissent with respect to the
applicability of the "clear and present danger" test in this case, the majority opinion
in unequivocal terms applied the "clear and present danger" test to religious
speech. This case involved the television program, "Ang Iglesia ni Cristo," regularly
aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR
tapes of some of its episodes, respondent Board of Review for Motion Pictures and
Television classified these 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." Invoking religious freedom, petitioner alleged that the Board
acted without jurisdiction or with grave abuse of discretion in requiring it to submit
the VTR tapes of its television program and x-rating them. While upholding the
Board's power to review the Iglesia television show, the Court was emphatic about
the preferred status of religious freedom. Quoting Justice Cruz' commentary on the
constitution, the Court held that freedom to believe is absolute but freedom to act
on one's belief, where it affects the public, is subject to the authority of the state.
The commentary quoted Justice Frankfurter's dissent in Barnette which was quoted
in Gerona, viz: "(t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma."349 Nevertheless, the Court
was quick to add the criteria by which the state can regulate the exercise of
religious freedom, that is, when the exercise will bring about the "clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding interest of public health, public morals, or
public welfare."350

In annulling the x-rating of the shows, the Court stressed that the Constitution is
hostile to all prior restraints on speech, including religious speech and the x-rating
was a suppression of petitioner's freedom of speech as much as it was an
interference with its right to free exercise of religion. Citing Cantwell, the Court
recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting any
religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in
the American Bible Society case and the test of "immediate and grave danger" with
"infringement only to the smallest extent necessary to avoid danger" in Victoriano
and pointed out that the reviewing board failed to apply the "clear and present
danger" test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify the
conclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.

Replying to the challenge on the applicability of the "clear and present danger" test
to the case, the Court acknowledged the permutations that the test has undergone,
but stressed that the test is still applied to four types of speech: "speech that
advocates dangerous ideas, speech that provokes a hostile audience reaction, out
of court contempt and release of information that endangers a fair trial"351 and
ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the
clear and present danger test to the case at bar which concerns speech that attacks
other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.352

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious
freedom cannot be invoked to seek exemption from compliance with a law that
burdens one's religious exercise. It also reiterated the "clear and present danger"
test in American Bible Society and the "grave and imminent danger" in Victoriano,
but this time clearly justifying its applicability and showing how the test was applied
to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a
law offensive to religious freedom, but carving out an exception or upholding an
exception to accommodate religious exercise where it is justified.353

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be


protected by the Establishment Clause, namely, voluntarism and insulation of the
political process from interfaith dissension. The first, voluntarism, has both a
personal and a social dimension. As a personal value, it refers to the inviolability of
the human conscience which, as discussed above, is also protected by the free
exercise clause. From the religious perspective, religion requires voluntarism
because compulsory faith lacks religious efficacy. Compelled religion is a
contradiction in terms.354 As a social value, it means that the "growth of a religious
sect as a social force must come from the voluntary support of its members
because of the belief that both spiritual and secular society will benefit if religions
are allowed to compete on their own intrinsic merit without benefit of official
patronage. Such voluntarism cannot be achieved unless the political process is
insulated from religion and unless religion is insulated from politics."355 Nonestablishment thus calls for government neutrality in religious matters to uphold
voluntarism and avoid breeding interfaith dissension.356

The neutrality principle was applied in the first significant non-establishment case
under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine
Independent Church challenged the issuance and sale of postage stamps
commemorating the Thirty-Third International Eucharistic Congress of the Catholic
Church on the ground that the constitutional prohibition against the use of public
money for religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No. 4052358 which
appropriated a sum for the cost of plates and printing of postage stamps with new
designs and authorized the Director of Posts to dispose of the sum in a manner and
frequency "advantageous to the Government." The printing and issuance of the
postage stamps in question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains explaining religious
freedom and the role of religion in society, and in conclusion, found no
constitutional infirmity in the issuance and sale of the stamps, viz:

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 . . . 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 toleration.

Religious freedom, however, as a constitutional mandate is not an 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. . .359

xxx

xxx

xxx

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)360 (emphases
supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine
that a law or government action with a legitimate secular purpose does not offend
the Establishment Clause even if it incidentally aids a particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court
found that the separation of church and state was not at issue as the controversy
was over who should have custody of a saint's image, it nevertheless made
pronouncements on the separation of church and state along the same line as the
Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in
holding a fiesta and having a patron saint for the barrio. It adhered to the barrio
resolutions of the barangay involved in the case stating that the barrio fiesta is a
socio-religious affair, the celebration of which is an "ingrained tradition in rural
communities" that "relieves the monotony and drudgery of the lives of the masses."
Corollarily, the Court found nothing illegal about any activity intended to facilitate
the worship of the patron saint such as the acquisition and display of his image
bought with funds obtained through solicitation from the barrio residents. The Court
pointed out that the image of the patron saint was "purchased in connection with
the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer,
and not for the purpose of favoring any religion nor interfering with religious
matters or the religious beliefs of the barrio residents." Citing the Aglipay ruling, the
Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and
which 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.

Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel
issue involving the religion clauses. In this case, Section 2175 of the Revised
Administrative Code of 1917 disqualifying ecclesiastics from appointment or
election as municipal officer was challenged. After protracted deliberation, the Court
was sharply divided on the issue. Seven members of the Court, one short of the
number necessary to declare a law unconstitutional, approached the problem from
a free exercise perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr.,
Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente,
stated, viz: "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." Citing


Torcaso v. Watkins,363 the ponencia held, viz:

Torcaso v. Watkins, 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.

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.364

On the other hand, the prevailing five other members of the Court - Chief Justice
Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from
a non-establishment perspective and upheld the law as a safeguard against the
constant threat of union of church and state that has marked Philippine history.
Justice Makasiar stated: "To allow an ecclesiastic to head the executive department
of a municipality is to permit the erosion of the principle of separation of Church and
State and thus open the floodgates for the violation of the cherished liberty of
religion which the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the Revised
Administrative Code and declared respondent priest ineligible for the office of
municipal mayor.

Another type of cases interpreting the establishment clause deals with intramural
religious disputes. Fonacier v. Court of Appeals365 is the leading case. The issue
therein was the right of control over certain properties of the Philippine Independent

Church, the resolution of which necessitated the determination of who was the
legitimate bishop of the church. The Court cited American Jurisprudence,366 viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it


professes to administer, or is in conflict with the law of the land, it will not be
followed by the civil courts. . . In some instances, not only have the civil courts the
right to inquire into the jurisdiction of the religious tribunals and the regularity of
their procedure, but they have subjected their decisions to the test of fairness or to
the test furnished by the constitution and the law of the church. . .367

The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on their
internal laws. To finally dispose of the property issue, the Court, citing Watson v.
Jones,368 declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical association
(such as the Philippine Independent Church) is that the rules for resolving such
controversies should be those of any voluntary association. If the congregation
adopts the majority rule then the majority should prevail; if it adopts adherence to
duly constituted authorities within the congregation, then that should be followed.
Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction
over the case, it nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:

The amendments of the constitution, restatement of articles of religion and


abandonment of faith or abjuration alleged by appellant, having to do with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church
and having reference to the power of excluding from the church those allegedly
unworthy of membership, are unquestionably ecclesiastical matters which are
outside the province of the civil courts.369

VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension


between the Free Exercise Clause and the Establishment Clause in their application.
There is a natural antagonism between a command not to establish religion and a
command not to inhibit its practice; this tension between the religion clauses often
leaves the courts with a choice between competing values in religion cases.370

One set of facts, for instance, can be differently viewed from the Establishment
Clause perspective and the Free Exercise Clause point of view, and decided in
opposite directions. In Pamil, the majority gave more weight to the religious liberty
of the priest in holding that the prohibition of ecclesiastics to assume elective or
appointive government positions was violative of the Free Exercise Clause. On the
other hand, the prevailing five justices gave importance to the Establishment Clause
in stating that the principle of separation of church and state justified the
prohibition.

Tension is also apparent when a case is decided to uphold the Free Exercise Clause
and consequently exemptions from a law of general applicability are afforded by the
Court to the person claiming religious freedom; the question arises whether the
exemption does not amount to support of the religion in violation of the
Establishment Clause. This was the case in the Free Exercise Clause case of
Sherbert where the U.S. Supreme Court ruled, viz:

In holding as we do, plainly we are not fostering the "establishment" of the Seventhday Adventist religion in South Carolina, for the extension of unemployment benefits
to Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does
not represent that involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall.371 (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to
uphold free exercise as in the Walz case where the appellant argued that the
exemption granted to religious organizations, in effect, required him to contribute to
religious bodies in violation of the Establishment Clause. But the Court held that the
exemption was not a case of establishing religion but merely upholding the Free
Exercise Clause by "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions." Justice Burger wrote, viz:

(t)he 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.372

Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:

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.373 (emphasis supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause


but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here
are certain practices, conceivably violative of the Establishment Clause, the striking
down of which might seriously interfere with certain religious liberties also protected
by the First Amendment."

How the tension between the Establishment Clause and the Free Exercise Clause
will be resolved is a question for determination in the actual cases that come to the
Court. In cases involving both the Establishment Clause and the Free Exercise
Clause, the two clauses should be balanced against each other. The courts must
review all the relevant facts and determine whether there is a sufficiently strong
free exercise right that should prevail over the Establishment Clause problem. In the
United States, it has been proposed that in balancing, the free exercise claim must
be given an edge not only because of abundant historical evidence in the colonial
and early national period of the United States that the free exercise principle long
antedated any broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a citizen's free
exercise of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the Establishment Clause in
cases involving tension between the two religion clauses, the courts convey a
message of hostility to the religion that in that case cannot be freely exercised.374
American professor of constitutional law, Laurence Tribe, similarly suggests that the
free exercise principle "should be dominant in any conflict with the antiestablishment principle." This dominance would be the result of commitment to
religious tolerance instead of "thwarting at all costs even the faintest appearance of
establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern society is
characterized by the expanding regulatory arm of government that reaches a
variety of areas of human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal values the
religion clauses are intended to protect must be considered in their interpretation

and resolution of the tension. This, in fact, has been the approach followed by the
Philippine Court.376

IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and
American Religion Clause History, Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution. The
religion clauses in the First Amendment were contained in every organic Act of the
Philippines under the American regime. When the delegates of the 1934
Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they
purposely retained the phraseology of the religion clauses in the First Amendment
as contained in the Jones Law in order to adopt its historical background, nature,
extent and limitations. At that time, there were not too many religion clause cases
in the United States as the U.S. Supreme Court decided an Establishment Clause
issue only in the 1947 Everson case. The Free Exercise Clause cases were also
scarce then. Over the years, however, with the expanding reach of government
regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of the religion
clauses, at times reinforcing prevailing case law, at other times modifying it, and
still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs separation while
the second employs benevolent neutrality in interpreting the religious clauses.
Alongside this change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion clauses in the 1973
Constitution and later, the 1987 Constitution. Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow authorities from
U.S. jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S. religion clause
jurisprudence and the two identifiable streams; thus, when a religion clause case
comes before the Court, a separationist approach or a benevolent neutrality
approach might be adopted and each will have U.S. authorities to support it. Or, one
might conclude that as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine jurisprudence should also
follow this approach in light of the Philippine religion clauses' history. As a result, in
a case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable wall
in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were

never warranted by the 1987, 1973 and 1935 Constitutions as shown by other
provisions on religion in all three constitutions. It is a cardinal rule in constitutional
construction that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner that will
give to all of them full force and effect.377 From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.378

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the
same time that the 1935 Constitution provided for an Establishment Clause, it also
provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all
lands, buildings, and improvements used exclusively for religious, charitable, or
educational purposes shall be exempt from taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code
provided for a similar exemption. To the same effect, the Tydings-McDuffie Law
contained a limitation on the taxing power of the Philippine government during the
Commonwealth period.379 The original draft of the Constitution placed this
provision in an ordinance to be appended to the Constitution because this was
among the provisions prescribed by the Tydings-McDuffie Law. However, in order to
have a constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the Constitution
on the rationale that "if churches, convents [rectories or parsonages] and their
accessories are always necessary for facilitating the exercise of such [religious]
freedom, it would also be natural that their existence be also guaranteed by
exempting them from taxation."380 The amendment was readily approved with 83
affirmative votes against 15 negative votes.381

The Philippine constitutional provision on tax exemption is not found in the U.S.
Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of
exemption to withstand Establishment Clause scrutiny by stating that church
property was not singled out but was exempt along with property owned by nonprofit, quasi-public corporations because the state upheld the secular policy "that
considers these groups as beneficial and stabilizing influences in community life and
finds this classification useful, desirable, and in the public interest." The Court also

stated that the exemption was meant to relieve the burden on free exercise
imposed by property taxation. At the same time, however, the Court acknowledged
that the exemption was an exercise of benevolent neutrality to accommodate a
long-standing tradition of exemption. 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. The
provision, as stated in the deliberations, was an acknowledgment of the necessity of
the exempt institutions to the exercise of religious liberty, thereby evincing
benevolence towards religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) 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, for the use, benefit or
support of any priest, preacher, ministers 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. (emphasis
supplied)

The original draft of this provision was a reproduction of a portion of section 3 of the
Jones Law which did not contain the above exception, viz:

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 dignitary as such382

In the deliberations of this draft provision, an amendment was proposed to strike


down everything after "church denomination."383 The proposal intended to imitate
the silence of the U.S. Constitution on the subject of support for priests and
ministers. It was also an imitation of the silence of the Malolos Constitution to
restore the situation under the Malolos Constitution and prior to the Jones Law,
when chaplains of the revolutionary army received pay from public funds with no
doubt about its legality. It was pointed out, however, that even with the prohibition
under the Jones Law, appropriations were made to chaplains of the national

penitentiary and the Auditor General upheld its validity on the basis of a similar
United States practice. But it was also pointed out that the U.S. Constitution did not
contain a prohibition on appropriations similar to the Jones Law.384 To settle the
question on the constitutionality of payment of salaries of religious officers in
certain government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and approved.
The provision garnered 74 affirmative votes against 34 negative votes.385 As
pointed out in the deliberations, the U.S. Constitution does not provide for this
exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas' payment of
prison chaplains' salaries as reasonably necessary to permit inmates to practice
their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the longstanding tradition of beginning legislative sessions with prayers offered by
legislative chaplains retained at taxpayers' expense. The constitutional provision
exempting religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion
protects the wall of separation between church and state, the provision at the same
time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the


Philippine Establishment Clause, the 1935 Constitution provides for optional
religious instruction in public schools in Article XIII, Section 5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now


authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the
town where a public school is situated, either in person or by a designated teacher
of religion, to teach religion for one-half hour three times a week, in the school
building, to those public-school pupils whose parents or guardians desire it and
express their desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on
the issue of religious instruction in public schools. The first held that the teaching of
religion in public schools should be prohibited as this was a violation of the principle
of separation of church and state and the prohibition against the use of public funds
for religious purposes. The second favored the proposed optional religious
instruction as authorized by the Administrative Code and recognized that the actual
practice of allowing religious instruction in the public schools was sufficient proof
that religious instruction was not and would not be a source of religious discord in
the schools.386 The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the option of
their parents or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of religion in
public schools, despite the opposition to the provision on the ground of separation
of church and state.387 As in the provisions on church property tax exemption and
compensation of religious officers in government institutions, the U.S. Constitution
does not provide for optional religious instruction in public schools. In fact, in the
McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school
premises. The constitutional provision on optional religious instruction shows that
Philippine jurisdiction rejects the strict neutrality approach which does not allow
such accommodation of religion.

Finally, to make certain the Constitution's benevolence to religion, the Filipino


people "implored (ing) 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, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a
"key to open the mind of the authors of the constitution as to the evil sought to be
prevented and the objects sought to be accomplished by the provisions thereof."388
There was no debate on the inclusion of a "Divine Providence" in the preamble. In
Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine
Providence, "(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations."389
The 1935 Constitution's religion clauses, understood alongside the other provisions
on religion in the Constitution, indubitably shows not hostility, but benevolence, to
religion.390

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to
Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church
property from taxation, with the modification that the property should not only be

used directly, but also actually and exclusively for religious or charitable purposes.
Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution
also contained a similar provision on salaries of religious officials employed in the
enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution
on optional religious instruction was also carried to the 1973 Constitution in Article
XV, Section 8(8) with the modification that optional religious instruction shall be
conducted "as may be provided by law" and not "as now authorized by law" as
stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in
the constitution that the religious instruction in public elementary and high schools
shall be done "(a)t the option expressed in writing by the parents or guardians, and
without cost to them and the government." With the adoption of these provisions in
the 1973 Constitution, the benevolent neutrality approach continued to enjoy
constitutional sanction. In Article XV, Section 15 of the General Provisions of the
1973 Constitution this provision made its maiden appearance: "(t)he separation of
church and state shall be inviolable." The 1973 Constitution retained the portion of
the preamble "imploring the aid of Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the
Committee on Church and State of the 1971 Constitutional Convention, the question
arose as to whether the "absolute" separation of Church and State as enunciated in
the Everson case and reiterated in Schempp - i.e., neutrality not only as between
one religion and another but even as between religion and non-religion - is
embodied in the Philippine Constitution. The sub-committee's answer was that it did
not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating
influence of religion in human society" and the Filipinos' imploring of Divine
Providence in the 1935 Constitution, the sub-committee asserted that the state may
not prefer or aid one religion over another, but may aid all religions equally or the
cause of religion in general.391 Among the position papers submitted to the
Committee on Church on State was a background paper for reconsideration of the
religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact recognizes the value of
religion and accommodates religious values.392 Stated otherwise, the
Establishment Clause contemplates not a strict neutrality but benevolent neutrality.
While the Committee introduced the provision on separation of church and state in
the General Provisions of the 1973 Constitution, this was nothing new as according
to it, this principle was implied in the 1935 Constitution even in the absence of a
similar provision.393

Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in Article VI,
Section 28(3) of the 1987 Constitution. The same is true with respect to the

prohibition on the use of public money and property for religious purposes and the
salaries of religious officers serving in the enumerated government institutions, now
contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into
the possibility of allowing the government to spend public money for purposes
which might have religious connections but which would benefit the public
generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.394

The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was expressly
provided that optional instruction shall be conducted "within the regular class
hours" and "without additional cost to the government". There were protracted
debates on what additional cost meant, i.e., cost over and above what is needed for
normal operations such as wear and tear, electricity, janitorial services,395 and
when during the day instruction would be conducted.396 In deliberating on the
phrase "within the regular class hours," Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored principle of
separation of church and state. She cited the McCullom case where religious
instruction during regular school hours was stricken down as unconstitutional and
also cited what she considered the most liberal interpretation of separation of
church and state in Surach v. Clauson where the U.S. Supreme Court allowed only
release time for religious instruction. Fr. Bernas replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule
on non-establishment of religion, because if it were not necessary to make this
exception for purposes of allowing religious instruction, then we could just drop the
amendment. But, as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American practices.397 (emphasis
supplied)

"(W)ithin regular class hours" was approved.

he provision on the separation of church and state was retained but placed under
the Principles in the Declaration of Principles and State Policies in Article II, Section
6. In opting to retain the wording of the provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence 'The separation of


Church and State is inviolable,' is almost a useless statement; but at the same time
it is a harmless statement. Hence, I am willing to tolerate it there, because, in the
end, if we look at the jurisprudence on Church and State, arguments are based not
on the statement of separation of church and state but on the non-establishment
clause in the Bill of Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to
"Almighty God." There was considerable debate on whether to use "Almighty God"
which Commissioner Bacani said was more reflective of Filipino religiosity, but
Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God.399 "God of
History", "Lord of History" and "God" were also proposed, but the phrase "Almighty
God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the
1987 Constitution is not hostile nor indifferent to religion;400 its wall of separation
is not a wall of hostility or indifference.401

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church
property, salary of religious officers in government institutions, optional religious
instruction and the preamble all reveal without doubt that the Filipino people, in
adopting these constitutions, did not intend to erect a high and impregnable wall of
separation between the church and state.402 The strict neutrality approach which
examines only whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos manifested
their adherence to the benevolent neutrality approach in interpreting the religion
clauses, an approach that looks further than the secular purposes of government
action and examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the elevating
influence of religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however, government might
adopt laws or actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these religious
exercises as required by the Free Exercise Clause. It allows these breaches in the
wall of separation to uphold religious liberty, which after all is the integral purpose
of the religion clauses. The case at bar involves this first type of accommodation
where an exemption is sought from a law of general applicability that inadvertently
burdens religious exercise.

Although our constitutional history and interpretation mandate benevolent


neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean that
the Court will not look with hostility or act indifferently towards religious beliefs and
practices and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not 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, i.e., that in the absence of legislation granting exemption from a
law of general applicability, the Court can carve out an exception when the religion
clauses justify it. 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.403 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.

Benevolent neutrality is manifest not only in the Constitution but has also been
recognized in Philippine jurisprudence, albeit not expressly called "benevolent
neutrality" or "accommodation". In Aglipay, the Court not only stressed the
"elevating influence of religion in human society" but acknowledged the
Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as
well as the provisions of the Administrative Code making Thursday and Friday of the
Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only
recognized the Constitutional provisions indiscriminately granting concessions to
religious sects and denominations, but also acknowledged that government
participation in long-standing traditions which have acquired a social character "the barrio fiesta is a socio-religious affair" - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of
members of religious sects who prohibited their members from joining unions upon
the justification that the exemption was not a violation of the Establishment Clause
but was only meant to relieve the burden on free exercise of religion. In Ebralinag,
members of the Jehovah's Witnesses were exempt from saluting the flag as required

by law, on the basis not of a statute granting exemption but of the Free Exercise
Clause without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of employing
a separationist or strict neutrality approach. The Philippine religion clauses have
taken a life of their own, breathing the air of benevolent neutrality and
accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high
and impregnable as the wall created by the U.S. Supreme Court in Everson.404
While the religion clauses are a unique American experiment which understandably
came about as a result of America's English background and colonization, the life
that these clauses have taken in this jurisdiction is the Philippines' own experiment,
reflective of the Filipinos' own national soul, history and tradition. After all, "the life
of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence


unmistakably show that benevolent neutrality is the lens with which the Court ought
to view religion clause cases, it must be stressed that the interest of the state
should also be afforded utmost protection. To do this, a test must be applied to draw
the line between permissible and forbidden religious exercise. It is quite paradoxical
that in order for the members of a society to exercise their freedoms, including their
religious liberty, the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for unlimited freedom would
erode order in the state and foment anarchy, eventually destroying the very state
its members established to protect their freedoms. The very purpose of the social
contract by which people establish the state is for the state to protect their liberties;
for this purpose, they give up a portion of these freedoms - including the natural
right to free exercise - to the state. It was certainly not the intention of the authors
of the constitution that free exercise could be used to countenance actions that
would undo the constitutional order that guarantees free exercise.405

The all important question then is the test that should be used in ascertaining the
limits of the exercise of religious freedom. Philippine jurisprudence articulates
several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be
cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general

applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit inappropriately,
the "compelling state interest" test. After Victoriano, German went back to the
Gerona rule. Ebralinag then employed the "grave and immediate danger" test and
overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
"clear and present danger" test in the maiden case of 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.406 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,407
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.408 In
determining which shall prevail between the state's interest and religious liberty,

reasonableness shall be the guide.409 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.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in
illicit relations are guilty of "disgraceful and immoral conduct" for which he/she may
be held administratively liable.410 In these cases, there was not one dissent to the
majority's ruling that their conduct was immoral. The respondents themselves did
not foist the defense that their conduct was not immoral, but instead sought to
prove that they did not commit the alleged act or have abated from committing the
act. The facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad
v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit relation,
there is no proof of scandal or offense to the moral sensibilities of the community in
which the respondent and the partner live and work, and the government employee
is capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees administratively
liable for "disgraceful and immoral conduct" and only considered the foregoing
circumstances to mitigate the penalty. Respondent Escritor does not claim that
there is error in the settled jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a government employee is held liable.
Nor is there an allegation that the norms of morality with respect to illicit relations
have shifted towards leniency from the time these precedent cases were decided.
The Court finds that there is no such error or shift, thus we find no reason to deviate
from these rulings that such illicit relationship constitutes "disgraceful and immoral
conduct" punishable under the Civil Service Law. Respondent having admitted the
alleged immoral conduct, she, like the respondents in the above-cited cases, could
be held administratively liable. However, there is a distinguishing factor that sets
the case at bar apart from the cited precedents, i.e., as a defense, respondent
invokes religious freedom since her religion, the Jehovah's Witnesses, has, after
thorough investigation, allowed her conjugal arrangement with Quilapio based on
the church's religious beliefs and practices. This distinguishing factor compels the
Court to apply the religious clauses to the case at bar.

Without holding that religious freedom is not in issue in the case at bar, both the
dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr.
Justice Vitug dwell more on the standards of morality than on the religion clauses in
deciding the instant case. A discussion on morality is in order.

At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any
definition of morality beyond Socrates' simple formulation is bound to offend one or
another of the many rival theories regarding what it means to live morally.413 The
answer to the question of how we ought to live necessarily considers that man does
not live in isolation, but in society. Devlin posits that a society is held together by a
community of ideas, made up not only of political ideas but also of ideas about the
manner its members should behave and govern their lives. The latter are their
morals; they constitute the public morality. Each member of society has ideas about
what is good and what is evil. If people try to create a society wherein there is no
fundamental agreement about good and evil, they will fail; if having established the
society on common agreement, the agreement collapses, the society will
disintegrate. Society is kept together by the invisible bonds of common thought so
that if the bonds are too loose, the members would drift apart. A common morality
is part of the bondage and the bondage is part of the price of society; and mankind,
which needs society, must pay its price.414 This design is parallel with the social
contract in the realm of politics: people give up a portion of their liberties to the
state to allow the state to protect their liberties. In a constitutional order, people
make a fundamental agreement about the powers of government and their liberties
and embody this agreement in a constitution, hence referred to as the fundamental
law of the land. A complete break of this fundamental agreement such as by
revolution destroys the old order and creates a new one.415 Similarly, in the realm
of morality, the breakdown of the fundamental agreement about the manner a
society's members should behave and govern their lives would disintegrate society.
Thus, society is justified in taking steps to preserve its moral code by law as it does
to preserve its government and other essential institutions.416 From these
propositions of Devlin, one cannot conclude that Devlin negates diversity in society
for he is merely saying that in the midst of this diversity, there should nevertheless
be a "fundamental agreement about good and evil" that will govern how people in a
society ought to live. His propositions, in fact, presuppose diversity hence the need
to come to an agreement; his position also allows for change of morality from time
to time which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of society, laws that
may be amended from time to time. Hart's argument propounded in Mr. Justice
Vitug's separate opinion that, "Devlin's view of people living in a single society as

having common moral foundation (is) overly simplistic" because "societies have
always been diverse" fails to recognize the necessity of Devlin's proposition in a
democracy. Without fundamental agreement on political and moral ideas, society
will fall into anarchy; the agreement is necessary to the existence and progress of
society.

In a democracy, this common agreement on political and moral ideas is distilled in


the public square. Where citizens are free, every opinion, every prejudice, every
aspiration, and every moral discernment has access to the public square where
people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this
democratic governance.417 Thus, when public deliberation on moral judgments is
finally crystallized into law, the laws will largely reflect the beliefs and preferences
of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very
act of adopting and accepting a constitution and the limits it specifies -- including
protection of religious freedom "not only for a minority, however small- not only for
a majority, however large- but for each of us" -- the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.419 In the realm of religious exercise,
benevolent neutrality that gives room for accommodation carries out this promise,
provided the compelling interests of the state are not eroded for the preservation of
the state is necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States and the
Philippines to accommodate those minority religions which are politically powerless.
It is not surprising that Smith is much criticized for it blocks the judicial recourse of
the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it,
"(t)he law is the witness and deposit of our moral life."420 "In a liberal democracy,
the law reflects social morality over a period of time."421 Occasionally though, a
disproportionate political influence might cause a law to be enacted at odds with
public morality or legislature might fail to repeal laws embodying outdated
traditional moral views.422 Law has also been defined as "something men create in
their best moments to protect themselves in their worst moments."423 Even then,
laws are subject to amendment or repeal just as judicial pronouncements are
subject to modification and reversal to better reflect the public morals of a society
at a given time. After all, "the life of the law...has been experience," in the words of

Justice Holmes. This is not to say though that law is all of morality. Law deals with
the minimum standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of avoiding
punishment under the law does not meet the higher moral standards set by society
for him to be called a morally upright person.424 Law also serves as "a helpful
starting point for thinking about a proper or ideal public morality for a society"425
in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law


and public morality. We held that under the utilitarian theory, the "protective
theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x
of actions which are immoral, i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society. This
disapprobation is inevitable to the extent that morality is generally founded and
built upon a certain concurrence in the moral opinions of all. x x x That which we
call punishment is only an external means of emphasizing moral disapprobation: the
method of punishment is in reality the amount of punishment."427 Stated
otherwise, there are certain standards of behavior or moral principles which society
requires to be observed and these form the bases of criminal law. Their breach is an
offense not only against the person injured but against society as a whole.428 Thus,
even if all involved in the misdeed are consenting parties, such as in the case at
bar, the injury done is to the public morals and the public interest in the moral
order.429 Mr. Justice Vitug expresses concern on this point in his separate opinion.
He observes that certain immoral acts which appear private and not harmful to
society such as sexual congress "between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this
country." His opinion asks whether these laws on private morality are justified or
they constitute impingement on one's freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondent's
conduct, which constitutes concubinage,430 is private in the sense that there is no
injured party or the offended spouse consents to the concubinage, the inescapable
fact is that the legislature has taken concubinage out of the sphere of private
morals. The legislature included concubinage as a crime under the Revised Penal
Code and the constitutionality of this law is not being raised in the case at bar. In
the definition of the crime of concubinage, consent of the injured party, i.e., the
legal spouse, does not alter or negate the crime unlike in rape431 where consent of
the supposed victim negates the crime. If at all, the consent or pardon of the
offended spouse in concubinage negates the prosecution of the action,432 but does
not alter the legislature's characterization of the act as a moral disapprobation
punishable by law. The separate opinion states that, "(t)he ponencia has taken pains
to distinguish between secular and private morality, and reached the conclusion
that the law, as an instrument of the secular State should only concern itself with

secular morality." The Court does not draw this distinction in the case at bar. The
distinction relevant to the case is not, as averred and discussed by the separate
opinion, "between secular and private morality," but between public and secular
morality on the one hand, and religious morality on the other, which will be
subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We
recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al.,
where we explained that for those wrongs which are not punishable by law, Articles
19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with
Human Relations, provide for the recognition of the wrong and the concomitant
punishment in the form of damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due and observe honesty and good faith.

xxx

xxx

xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for
the damage. (emphasis supplied)

We then cited in Velayo the Code Commission's comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers of
moral wrongs which is impossible for human foresight to provide for specifically in
the statutes.

But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every good law
draws its breath of life from morals, from those principles which are written with
words of fire in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the impossibility of

enumerating, one by one, all wrongs which cause damages. When it is reflected that
while codes of law and statutes have changed from age to age, the conscience of
man has remained fixed to its ancient moorings, one can not but feel that it is safe
and salutary to transmute, as far as may be, moral norms into legal rules, thus
imparting to every legal system that enduring quality which ought to be one of its
superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order
than that a person may with impunity cause damage to his fellow-men so long as he
does not break any law of the State, though he may be defying the most sacred
postulates of morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the
German Civil Code.433 (emphases supplied)

The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from a
person's "views of his relations to His Creator and to the obligations they impose of
reverence to His being and character and obedience to His Will," in accordance with
this Court's definition of religion in American Bible Society citing Davis. Religion also
dictates "how we ought to live" for the nature of religion is not just to know, but
often, to act in accordance with man's "views of his relations to His Creator."434 But
the Establishment Clause puts a negative bar against establishment of this morality
arising from one religion or the other, and implies the affirmative "establishment" of
a civil order for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced by
religious truce.435

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in
the Code of Professional Responsibility for lawyers436, or "public morals" in the
Revised Penal Code,437 or "morals" in the New Civil Code,438 or "moral character"
in the Constitution,439 the distinction between public and secular morality on the
one hand, and religious morality, on the other, should be kept in mind.440 The
morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public

debate may influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms."441 Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government based
its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would
not support the policy. As a result, government will not provide full religious freedom
for all its citizens, or even make it appear that those whose beliefs are disapproved
are second-class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.442

In other words, government action, including its proscription of immorality as


expressed in criminal law like concubinage, must have a secular purpose. That is,
the government proscribes this conduct because it is "detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society"
and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing earth with
heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion clauses. Otherwise,
if a law has an apparent secular purpose but upon closer examination shows a
discriminatory and prohibitory religious purpose, the law will be struck down for
being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc.
where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice
of the Santeria. Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but at the
same time strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.

Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach
when it states that in deciding the case at bar, the approach should consider that,
"(a)s a rule . . . moral laws are justified only to the extent that they directly or
indirectly serve to protect the interests of the larger society. It is only where their
rigid application would serve to obliterate the value which society seeks to uphold,
or defeat the purpose for which they are enacted would, a departure be justified." In
religion clause parlance, the separate opinion holds that laws of general
applicability governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws (which are
the Civil Service Law and the laws on marriage) would erode the secular purposes of
the law (which the separate opinion identifies as upholding the sanctity of marriage
and the family), then in a benevolent neutrality framework, an accommodation of
the unconventional religious belief and practice (which the separate opinion holds
should be respected on the ground of freedom of belief) that would promote the
very same secular purpose of upholding the sanctity of marriage and family through
the Declaration Pledging Faithfulness that makes the union binding and honorable
before God and men, is required by the Free Exercise Clause. The separate opinion
then makes a preliminary discussion of the values society seeks to protect in
adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and evidence in
relation thereto presented in the OCA. The accommodation approach in the case at
bar would also require a similar discussion of these values and presentation of
evidence before the OCA by the state that seeks to protect its interest on marriage
and opposes the accommodation of the unconventional religious belief and practice
regarding marriage.

The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other, is
important because the jurisdiction of the Court extends only to public and secular
morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. More concretely, should the
Court declare respondent's conduct as immoral and hold her administratively liable,
the Court will be holding that in the realm of public morality, her conduct is
reprehensible or there are state interests overriding her religious freedom. For as
long as her conduct is being judged within this realm, she will be accountable to the
state. But in so ruling, the Court does not and cannot say that her conduct should
be made reprehensible in the realm of her church where it is presently sanctioned
and that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the Court
declare her conduct permissible, the Court will be holding that under her unique
circumstances, public morality is not offended or that upholding her religious
freedom is an interest higher than upholding public morality thus her conduct

should not be penalized. But the Court is not ruling that the tenets and practice of
her religion are correct nor that other churches which do not allow respondent's
conjugal arrangement should likewise allow such conjugal arrangement or should
not find anything immoral about it and therefore members of these churches are
not answerable for immorality to their Supreme Being. The Court cannot speak
more than what it has authority to say. In Ballard, the U.S. Supreme Court held that
courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this
Court declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical
matters which are outside the province of the civil courts."444 But while the state,
including the Court, accords such deference to religious belief and exercise which
enjoy protection under the religious clauses, the social contract and the
constitutional order are designed in such a way that when religious belief flows into
speech and conduct that step out of the religious sphere and overlap with the
secular and public realm, the state has the power to regulate, prohibit and penalize
these expressions and embodiments of belief insofar as they affect the interests of
the state. The state's inroad on religion exercise in excess of this constitutional
design is prohibited by the religion clauses; the Old World, European and American
history narrated above bears out the wisdom of this proscription.

Having distinguished between public and secular morality and religious morality,
the more difficult task is determining which immoral acts under this public and
secular morality fall under the phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable. The line is not easy to
draw for it is like "a line that divides land and sea, a coastline of irregularities and
indentations."445 But the case at bar does not require us to comprehensively
delineate between those immoral acts for which one may be held administratively
liable and those to which administrative liability does not attach. We need not
concern ourselves in this case therefore whether "laziness, gluttony, vanity,
selfishness, avarice and cowardice" are immoral acts which constitute grounds for
administrative liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are immoral, or
different jurisdictions have different standards of morality as discussed by the
dissents and separate opinions, although these observations and propositions are
true and correct. It is certainly a fallacious argument that because there are
exceptions to the general rule that the "law is the witness and deposit of our moral
life," then the rule is not true; in fact, that there are exceptions only affirms the
truth of the rule. Likewise, the observation that morality is relative in different
jurisdictions only affirms the truth that there is morality in a particular jurisdiction;
without, however, discounting the truth that underneath the moral relativism are
certain moral absolutes such as respect for life and truth-telling, without which no
society will survive. Only one conduct is in question before this Court, i.e., the

conjugal arrangement of a government employee whose partner is legally married


to another which Philippine law and jurisprudence consider both immoral and illegal.
Lest the Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention upon the
sole conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme.


Justice Ynares-Santiago groped for standards of morality and stated that the
"ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards" but did not articulate how these standards are to be
ascertained. Instead, it held that, "(f)or those in the service of the Government,
provisions of law and court precedents . . . have to be considered." It identified the
Civil Service Law and the laws on adultery and concubinage as laws which
respondent's conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a "disgraceful and immoral
conduct" for maintaining illicit relations and was thereby penalized. As stated
above, there is no dispute that under settled jurisprudence, respondent's conduct
constitutes "disgraceful and immoral conduct." However, the cases cited by the
dissent do not involve the defense of religious freedom which respondent in the
case at bar invokes. Those cited cases cannot therefore serve as precedents in
settling the issue in the case at bar.

Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in


laying down the standard of morality, viz: "(w)hether 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." The Mann Act under
consideration in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose."447 The resolution of that case
hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme
Court held that the petitioner Mormons' act of transporting at least one plural wife
whether for the purpose of cohabiting with her, or for the purpose of aiding another
member of their Mormon church in such a project, was covered by the phrase
"immoral purpose." In so ruling, the Court relied on Reynolds which held that the
Mormons' practice of polygamy, in spite of their defense of religious freedom, was
"odious among the northern and western nations of Europe,"448 "a return to
barbarism,"449 "contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world,"450 and thus punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at
bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically
"odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are
allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a member of
the Jehovah's Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore that her conduct is likewise so "odious" and
"barbaric" as to be immoral and punishable by law.

While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom, Mme.
Justice Ynares-Santiago's dissent nevertheless discussed respondent's plea of
religious freedom and disposed of this defense by stating that "(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.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). 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." However, the foregoing
discussion has shown that the "clear and present danger" test that is usually
employed in cases involving freedom of expression is not appropriate to the case at
bar which involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and immoral
conduct." The Reynolds ruling, however, was reached with a strict neutrality
approach, which is not the approach contemplated by the Philippine constitution. As
discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting
the religion clauses.

In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does
not reflect the constitutional intent of employing benevolent neutrality in
interpreting the Philippine religion clauses. His dissent avers that respondent should
be held administratively liable not for "disgraceful and immoral conduct" but
"conduct prejudicial to the best interest of the service" as she is a necessary coaccused of her partner in concubinage. The dissent stresses that being a court
employee, her open violation of the law is prejudicial to the administration of
justice. Firstly, the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to the best
interest of the service." In addition, there is no evidence of the alleged prejudice to
the best interest of the service. Most importantly, the dissent concludes that
respondent's plea of religious freedom cannot prevail without so much as employing
a test that would balance respondent's religious freedom and the state's interest at

stake in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework, the Court
cannot simply reject respondent's plea of religious freedom without even subjecting
it to the "compelling state interest" test that would balance her freedom with the
paramount interests of the state. The strict neutrality employed in the cases the
dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935
Constitution which unmistakably shows adherence to benevolent neutrality - is not
contemplated by our constitution.

Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451


cited in Mr. Justice Carpio's dissent decisive of the immorality issue in the case at
bar. In that case, the Court dismissed the charge of immorality against a Tausug
judge for engaging in an adulterous relationship with another woman with whom he
had three children because "it (was) not 'immoral' by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed)." Putting the quoted
portion in its proper context would readily show that the Sulu Islamic case does not
provide a precedent to the case at bar. Immediately prior to the portion quoted by
the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides that the
penal laws relative to the crime of bigamy 'shall not apply to a person married x x x
under Muslim Law,' it is not 'immoral' by Muslim standards for Judge Malik to marry
a second time while his first marriage exists."452 It was by law, therefore, that the
Muslim conduct in question was classified as an exception to the crime of bigamy
and thus an exception to the general standards of morality. The constitutionality of
P.D. No. 1083 when measured against the Establishment Clause was not raised as
an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No.
1083 suffered from a constitutional infirmity and instead relied on the provision
excepting the challenged Muslim conduct from the crime of bigamy in holding that
the challenged act is not immoral by Muslim standards. In contradistinction, in the
case at bar, there is no similar law which the Court can apply as basis for treating
respondent's conduct as an exception to the prevailing jurisprudence on illicit
relations of civil servants. Instead, the Free Exercise Clause is being invoked to
justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the
Case at Bar

The case at bar being one of first impression, we now subject the respondent's
claim of religious freedom to the "compelling state interest" test from a benevolent
neutrality stance - i.e. entertaining the possibility that respondent's claim to

religious freedom would warrant carving out an exception from the Civil Service
Law; necessarily, her defense of religious freedom will be unavailing should the
government succeed in demonstrating a more compelling state interest.

In applying the test, the first inquiry is whether respondent's right to religious
freedom has been burdened. There is no doubt that choosing between keeping her
employment and abandoning her religious belief and practice and family on the one
hand, and giving up her employment and keeping her religious practice and family
on the other hand, puts a burden on her free exercise of religion. In Sherbert, the
Court found that Sherbert's religious exercise was burdened as the denial of
unemployment benefits "forces her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the other hand." The burden on
respondent in the case at bar is even greater as the price she has to pay for her
employment is not only her religious precept but also her family which, by the
Declaration Pledging Faithfulness, stands "honorable before God and men."

The second step is to ascertain respondent's sincerity in her religious belief.


Respondent appears to be sincere in her religious belief and practice and is not
merely using the "Declaration of Pledging Faithfulness" to avoid punishment for
immorality. She did not secure the Declaration only after entering the judiciary
where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was issued
to her by her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary. Ministers from her
congregation testified on the authenticity of the Jehovah's Witnesses' practice of
securing a Declaration and their doctrinal or scriptural basis for such a practice. As
the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members under
respondent's circumstances "honorable before God and men." It is also worthy of
notice that the Report and Recommendation of the investigating judge annexed
letters453 of the OCA to the respondent regarding her request to be exempt from
attending the flag ceremony after Circular No. 62-2001 was issued requiring
attendance in the flag ceremony. The OCA's letters were not submitted by
respondent as evidence but annexed by the investigating judge in explaining that
he was caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had different
positions regarding respondent's request for exemption from the flag ceremony on
the ground of the Jehovah's Witnesses' contrary belief and practice. Respondent's
request for exemption from the flag ceremony shows her sincerity in practicing the
Jehovah's Witnesses' beliefs and not using them merely to escape punishment. She

is a practicing member of the Jehovah's Witnesses and the Jehovah ministers


testified that she is a member in good standing. Nevertheless, should the
government, thru the Solicitor General, want to further question the respondent's
sincerity and the centrality of her practice in her faith, it should be given the
opportunity to do so. The government has not been represented in the case at bar
from its incipience until this point.

In any event, even if the Court deems sufficient respondent's evidence on the
sincerity of her religious belief and its centrality in her faith, the case at bar cannot
still be decided using the "compelling state interest" test. The case at bar is one of
first impression, thus the parties were not aware of the burdens of proof they should
discharge in the Court's use of the "compelling state interest" test. We note that the
OCA found respondent's defense of religious freedom unavailing in the face of the
Court's ruling in Dicdican v. Fernan, et al., viz:

It bears emphasis 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 personnel 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 the courts of justice.

It is apparent from the OCA's reliance upon this ruling that the state interest it
upholds is the preservation of the integrity of the judiciary by maintaining among its
ranks a high standard of morality and decency. However, there is nothing in the
OCA's memorandum to the Court that demonstrates how this interest is so
compelling that it should override respondent's plea of religious freedom nor is it
shown that the means employed by the government in pursuing its interest is the
least restrictive to respondent's religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present


evidence on the compelling interest of the state. The burden of evidence should be
discharged by the proper agency of the government which is the Office of the
Solicitor General. To properly settle the issue in the case at bar, the government
should be given the opportunity to demonstrate the compelling state interest it
seeks to uphold in opposing the respondent's stance that her conjugal arrangement
is not immoral and punishable as it comes within the scope of free exercise
protection. Should the Court prohibit and punish her conduct where it is protected
by the Free Exercise Clause, the Court's action would be an unconstitutional

encroachment of her right to religious freedom.454 We cannot therefore simply take


a passing look at respondent's claim of religious freedom, but must instead apply
the "compelling state interest" test. The government must be heard on the issue as
it has not been given an opportunity to discharge its burden of demonstrating the
state's compelling interest which can override respondent's religious belief and
practice. To repeat, this is a case of first impression where we are applying the
"compelling state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the case will
make a decisive difference in the life of the respondent who stands not only before
the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator.
The Solicitor General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent's claimed
religious belief and practice; (b) to present evidence on the state's "compelling
interest" to override respondent's religious belief and practice; and (c) to show that
the means the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. The rehearing should be concluded thirty (30) days
from the Office of the Court Administrator's receipt of this Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J.
Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 166562

March 31, 2009

BENJAMIN G. TING, Petitioner,


vs.
CARMEN M. VELEZ-TING, Respondent.
DECISION
NACHURA, J.:
Before us is a petition for review on certiorari seeking to set aside the November 17, 2003 Amended
Decision1 of the Court of Appeals (CA), and its December 13, 2004 Resolution 2 in CA-G.R. CV No.
59903. The appellate court, in its assailed decision and resolution, affirmed the January 9, 1998
Decision3 of the Regional Trial Court (RTC), Branch 23, Cebu City, declaring the marriage between
petitioner and respondent null and void ab initio pursuant to Article 36 of the Family Code. 4
The facts follow.
Petitioner Benjamin Ting (Benjamin) and respondent Carmen Velez-Ting (Carmen) first met in 1972
while they were classmates in medical school.5 They fell in love, and they were wed on July 26, 1975
in Cebu City when respondent was already pregnant with their first child.
At first, they resided at Benjamins family home in Maguikay, Mandaue City.6 When their second child
was born, the couple decided to move to Carmens family home in Cebu City.7 In September 1975,
Benjamin passed the medical board examinations8 and thereafter proceeded to take a residency
program to become a surgeon but shifted to anesthesiology after two years. By 1979, Benjamin
completed the preceptorship program for the said field9 and, in 1980, he began working for Velez
Hospital, owned by Carmens family, as member of its active staff,10 while Carmen worked as the
hospitals Treasurer.11
The couple begot six (6) children, namely Dennis, born on December 9, 1975; James Louis, born on
August 25, 1977; Agnes Irene, born on April 5, 1981; Charles Laurence, born on July 21, 1986;
Myles Vincent, born on July 19, 1988; and Marie Corinne, born on June 16, 1991. 12
On October 21, 1993, after being married for more than 18 years to petitioner and while their
youngest child was only two years old, Carmen filed a verified petition before the RTC of Cebu City
praying for the declaration of nullity of their marriage based on Article 36 of the Family Code. She
claimed that Benjamin suffered from psychological incapacity even at the time of the celebration of
their marriage, which, however, only became manifest thereafter. 13
In her complaint, Carmen stated that prior to their marriage, she was already aware that Benjamin
used to drink and gamble occasionally with his friends.14 But after they were married, petitioner
continued to drink regularly and would go home at about midnight or sometimes in the wee hours of
the morning drunk and violent. He would confront and insult respondent, physically assault her and
force her to have sex with him. There were also instances when Benjamin used his gun and shot the
gate of their house.15 Because of his drinking habit, Benjamins job as anesthesiologist was affected
to the point that he often had to refuse to answer the call of his fellow doctors and to pass the task to
other anesthesiologists. Some surgeons even stopped calling him for his services because they
perceived petitioner to be unreliable. Respondent tried to talk to her husband about the latters
drinking problem, but Benjamin refused to acknowledge the same.16

Carmen also complained that petitioner deliberately refused to give financial support to their family
and would even get angry at her whenever she asked for money for their children. Instead of
providing support, Benjamin would spend his money on drinking and gambling and would even buy
expensive equipment for his hobby.17 He rarely stayed home18 and even neglected his obligation to
his children.19
Aside from this, Benjamin also engaged in compulsive gambling.20 He would gamble two or three
times a week and would borrow from his friends, brothers, or from loan sharks whenever he had no
money. Sometimes, Benjamin would pawn his wifes own jewelry to finance his gambling. 21 There
was also an instance when the spouses had to sell their family car and even a portion of the lot
Benjamin inherited from his father just to be able to pay off his gambling debts. 22 Benjamin only
stopped going to the casinos in 1986 after he was banned therefrom for having caused trouble, an
act which he said he purposely committed so that he would be banned from the gambling
establishments.23
In sum, Carmens allegations of Benjamins psychological incapacity consisted of the following
manifestations:
1. Benjamins alcoholism, which adversely affected his family relationship and his profession;
2. Benjamins violent nature brought about by his excessive and regular drinking;
3. His compulsive gambling habit, as a result of which Benjamin found it necessary to sell
the family car twice and the property he inherited from his father in order to pay off his debts,
because he no longer had money to pay the same; and
4. Benjamins irresponsibility and immaturity as shown by his failure and refusal to give
regular financial support to his family.24
In his answer, Benjamin denied being psychologically incapacitated. He maintained that he is a
respectable person, as his peers would confirm. He said that he is an active member of social and
athletic clubs and would drink and gamble only for social reasons and for leisure. He also denied
being a violent person, except when provoked by circumstances.25 As for his alleged failure to
support his family financially, Benjamin claimed that it was Carmen herself who would collect his
professional fees from Velez Hospital when he was still serving there as practicing
anesthesiologist.26 In his testimony, Benjamin also insisted that he gave his family financial support
within his means whenever he could and would only get angry at respondent for lavishly spending
his hard-earned money on unnecessary things.27 He also pointed out that it was he who often
comforted and took care of their children, while Carmen played mahjong with her friends twice a
week.28
During the trial, Carmens testimony regarding Benjamins drinking and gambling habits and violent
behavior was corroborated by Susana Wasawas, who served as nanny to the spouses children from
1987 to 1992.29 Wasawas stated that she personally witnessed instances when Benjamin maltreated
Carmen even in front of their children.30
Carmen also presented as witness Dr. Pureza Trinidad-Oate, a psychiatrist. 31 Instead of the usual
personal interview, however, Dr. Oates evaluation of Benjamin was limited to the transcript of
stenographic notes taken during Benjamins deposition because the latter had already gone to work
as an anesthesiologist in a hospital in South Africa. After reading the transcript of stenographic
notes, Dr. Oate concluded that Benjamins compulsive drinking, compulsive gambling and physical
abuse of respondent are clear indications that petitioner suffers from a personality disorder.32

To refute Dr. Oates opinion, petitioner presented Dr. Renato D. Obra, a psychiatrist and a
consultant at the Department of Psychiatry in Don Vicente Sotto Memorial Medical Center, as his
expert witness.33 Dr. Obra evaluated Benjamins psychological behavior based on the transcript of
stenographic notes, as well as the psychiatric evaluation report prepared by Dr. A.J.L. Pentz, a
psychiatrist from the University of Pretoria in South Africa, and his (Dr. Obras) interview with
Benjamins brothers.34 Contrary to Dr. Oates findings, Dr. Obra observed that there is nothing
wrong with petitioners personality, considering the latters good relationship with his fellow doctors
and his good track record as anesthesiologist.35
On January 9, 1998, the lower court rendered its Decision 36 declaring the marriage between
petitioner and respondent null and void. The RTC gave credence to Dr. Oates findings and the
admissions made by Benjamin in the course of his deposition, and found him to be psychologically
incapacitated to comply with the essential obligations of marriage. Specifically, the trial court found
Benjamin an excessive drinker, a compulsive gambler, someone who prefers his extra-curricular
activities to his family, and a person with violent tendencies, which character traits find root in a
personality defect existing even before his marriage to Carmen. The decretal portion of the decision
reads:
WHEREFORE, all the foregoing considered, judgment is hereby rendered declaring the marriage
between plaintiff and defendant null and void ab initio pursuant to Art. 36 of the Family Code. x x x
xxxx
SO ORDERED.37
Aggrieved, petitioner appealed to the CA. On October 19, 2000, the CA rendered a
Decision38 reversing the trial courts ruling. It faulted the trial courts finding, stating that no proof was
adduced to support the conclusion that Benjamin was psychologically incapacitated at the time he
married Carmen since Dr. Oates conclusion was based only on theories and not on established
fact,39 contrary to the guidelines set forth in Santos v. Court of Appeals 40 and in Rep. of the Phils. v.
Court of Appeals and Molina.41
Because of this, Carmen filed a motion for reconsideration, arguing that the Molina guidelines should
not be applied to this case since the Molina decision was promulgated only on February 13, 1997, or
more than five years after she had filed her petition with the RTC.42 She claimed that the Molina
ruling could not be made to apply retroactively, as it would run counter to the principle of stare
decisis. Initially, the CA denied the motion for reconsideration for having been filed beyond the
prescribed period. Respondent thereafter filed a manifestation explaining compliance with the
prescriptive period but the same was likewise denied for lack of merit. Undaunted, respondent filed a
petition for certiorari43 with this Court. In a Resolution44 dated March 5, 2003, this Court granted the
petition and directed the CA to resolve Carmens motion for reconsideration. 45 On review, the CA
decided to reconsider its previous ruling. Thus, on November 17, 2003, it issued an Amended
Decision46reversing its first ruling and sustaining the trial courts decision.47
A motion for reconsideration was filed, this time by Benjamin, but the same was denied by the CA in
its December 13, 2004 Resolution.48
Hence, this petition.
For our resolution are the following issues:

I. Whether the CA violated the rule on stare decisis when it refused to follow the guidelines
set forth under the Santos and Molina cases;
II. Whether the CA correctly ruled that the requirement of proof of psychological incapacity
for the declaration of absolute nullity of marriage based on Article 36 of the Family Code has
been liberalized; and
III. Whether the CAs decision declaring the marriage between petitioner and respondent null
and void [is] in accordance with law and jurisprudence.
We find merit in the petition.
I. On the issue of stare decisis.
The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this
Court in its final decisions. It is based on the principle that once a question of law has been
examined and decided, it should be deemed settled and closed to further argument. 49 Basically, it is
a bar to any attempt to relitigate the same issues,50 necessary for two simple reasons: economy and
stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code. 51
This doctrine of adherence to precedents or stare decisis was applied by the English courts and was
later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Punos
discussion on the historical development of this legal principle in his dissenting opinion in Lambino v.
Commission on Elections52 is enlightening:
The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the
calm." The doctrine started with the English Courts. Blackstone observed that at the beginning of the
18th century, "it is an established rule to abide by former precedents where the same points come
again in litigation." As the rule evolved, early limits to its application were recognized: (1) it would not
be followed if it were "plainly unreasonable"; (2) where courts of equal authority developed
conflicting decisions; and, (3) the binding force of the decision was the "actual principle or principles
necessary for the decision; not the words or reasoning used to reach the decision."
The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution. According to Hamilton, "strict rules and precedents" are necessary to prevent "arbitrary
discretion in the courts." Madison agreed but stressed that "x x x once the precedent ventures into
the realm of altering or repealing the law, it should be rejected." Prof. Consovoy well noted that
Hamilton and Madison "disagree about the countervailing policy considerations that would allow a
judge to abandon a precedent." He added that their ideas "reveal a deep internal conflict between
the concreteness required by the rule of law and the flexibility demanded in error correction. It is this
internal conflict that the Supreme Court has attempted to deal with for over two centuries."
Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare
decisis developed its own life in the United States. Two strains of stare decisis have been isolated by
legal scholars. The first, known as vertical stare decisis deals with the duty of lower courts to apply
the decisions of the higher courts to cases involving the same facts. The second, known as
horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy
correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare
decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is
not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare
decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the
Constitution while statutory stare decisis involves interpretations of statutes. The distinction is
important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations.
Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway
today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable
command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is
a question entirely within the discretion of the court, which is again called upon to consider a
question once decided." In the same vein, the venerable Justice Frankfurter opined: "the ultimate
touchstone of constitutionality is the Constitution itself and not what we have said about it." In
contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As
Justice Stevens explains: "after a statute has been construed, either by this Court or by a consistent
course of decision by other federal judges and agencies, it acquires a meaning that should be as
clear as if the judicial gloss had been drafted by the Congress itself." This stance reflects both
respect for Congress' role and the need to preserve the courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise,
courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate
and unconstitutional holdings; (2) it cannot accommodate changing social and political
understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of
Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect
stare decisis are stuck agreeing with them.
In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of
Education which junked Plessy v. Ferguson's "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by
freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to be
straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and
held, on motion for reconsideration, that a private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.
An examination of decisions on stare decisis in major countries will show that courts are agreed on
the factors that should be considered before overturning prior rulings. These are workability, reliance,
intervening developments in the law and changes in fact. In addition, courts put in the balance the
following determinants: closeness of the voting, age of the prior decision and its merits.
The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine whether
related principles of law have so far developed as to have the old rule no more than a remnant of an
abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently,
as to have robbed the old rule of significant application or justification. 53

To be forthright, respondents argument that the doctrinal guidelines prescribed in Santos and Molina
should not be applied retroactively for being contrary to the principle of stare decisis is no longer
new. The same argument was also raised but was struck down in Pesca v. Pesca, 54 and again in
Antonio v. Reyes.55 In these cases, we explained that the interpretation or construction of a law by
courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling
of this Court is overruled, and a different view is adopted, that the new doctrine may have to be
applied prospectively in favor of parties who have relied on the old doctrine and have acted in good
faith, in accordance therewith under the familiar rule of "lex prospicit, non respicit."
II. On liberalizing the required proof for the declaration of nullity of marriage under Article 36.
Now, petitioner wants to know if we have abandoned the Molina doctrine.
We have not.
In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te, 56 we declared that, in hindsight, it may
have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving
all cases of psychological incapacity. We said that instead of serving as a guideline, Molina
unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into
and be bound by it, which is not only contrary to the intention of the law but unrealistic as well
because, with respect to psychological incapacity, no case can be considered as on "all fours" with
another.57
By the very nature of cases involving the application of Article 36, it is logical and understandable to
give weight to the expert opinions furnished by psychologists regarding the psychological
temperament of parties in order to determine the root cause, juridical antecedence, gravity and
incurability of the psychological incapacity. However, such opinions, while highly advisable, are not
conditions sine qua non in granting petitions for declaration of nullity of marriage. 58 At best, courts
must treat such opinions as decisive but not indispensable evidence in determining the merits of a
given case. In fact, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical or psychological examination of the person concerned
need not be resorted to.59 The trial court, as in any other given case presented before it, must always
base its decision not solely on the expert opinions furnished by the parties but also on the totality of
evidence adduced in the course of the proceedings.
It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the
application of Article 36 must be treated distinctly and judged not on the basis of a priori
assumptions, predilections or generalizations but according to its own attendant facts. Courts should
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals.
Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set
forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on
the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC), viz.:
To require the petitioner to allege in the petition the particular root cause of the psychological
incapacity and to attach thereto the verified written report of an accredited psychologist or
psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice
o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus,
the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina
Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and

the presentation of psychiatric experts shall now be determined by the court during the pre-trial
conference.60
But where, as in this case, the parties had the full opportunity to present professional and expert
opinions of psychiatrists tracing the root cause, gravity and incurability of a partys alleged
psychological incapacity, then such expert opinion should be presented and, accordingly, be
weighed by the court in deciding whether to grant a petition for nullity of marriage.
III. On petitioners psychological incapacity.
Coming now to the main issue, we find the totality of evidence adduced by respondent insufficient to
prove that petitioner is psychologically unfit to discharge the duties expected of him as a husband,
and more particularly, that he suffered from such psychological incapacity as of the date of the
marriage eighteen (18) years ago. Accordingly, we reverse the trial courts and the appellate courts
rulings declaring the marriage between petitioner and respondent null and void ab initio.
The intendment of the law has been to confine the application of Article 36 to the most serious cases
of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage.61 The psychological illness that must have afflicted a party at the
inception of the marriage should be a malady so grave and permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond he or she is about to
assume.62
1avvphi1.zw+

In this case, respondent failed to prove that petitioners "defects" were present at the time of the
celebration of their marriage. She merely cited that prior to their marriage, she already knew that
petitioner would occasionally drink and gamble with his friends; but such statement, by itself, is
insufficient to prove any pre-existing psychological defect on the part of her husband. Neither did the
evidence adduced prove such "defects" to be incurable.
The evaluation of the two psychiatrists should have been the decisive evidence in determining
whether to declare the marriage between the parties null and void. Sadly, however, we are not
convinced that the opinions provided by these experts strengthened respondents allegation of
psychological incapacity. The two experts provided diametrically contradicting psychological
evaluations: Dr. Oate testified that petitioners behavior is a positive indication of a personality
disorder,63 while Dr. Obra maintained that there is nothing wrong with petitioners personality.
Moreover, there appears to be greater weight in Dr. Obras opinion because, aside from analyzing
the transcript of Benjamins deposition similar to what Dr. Oate did, Dr. Obra also took into
consideration the psychological evaluation report furnished by another psychiatrist in South Africa
who personally examined Benjamin, as well as his (Dr. Obras) personal interview with Benjamins
brothers.64 Logically, therefore, the balance tilts in favor of Dr. Obras findings.
Lest it be misunderstood, we are not condoning petitioners drinking and gambling problems, or his
violent outbursts against his wife. There is no valid excuse to justify such a behavior. Petitioner must
remember that he owes love, respect, and fidelity to his spouse as much as the latter owes the same
to him. Unfortunately, this court finds respondents testimony, as well as the totality of evidence
presented by the respondent, to be too inadequate to declare him psychologically unfit pursuant to
Article 36.
It should be remembered that the presumption is always in favor of the validity of marriage. Semper
praesumitur pro matrimonio.65 In this case, the presumption has not been amply rebutted and must,
perforce, prevail.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The
November 17, 2003 Amended Decision and the December 13, 2004 Resolution of the Court of
Appeals in CA-G.R. CV No. 59903 are accordingly REVERSED and SET ASIDE.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CONCHITA CARPIO MORALES*
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

DIOSDADO M. PERALTA
Associate Justice
ATT E S TATI O N
I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

SECOND DIVISION

CO GIOK LUN, as substituted by his legal heirs namely: MAGDALENA D. CO,


MILAGROS D. CO, BENJAMIN D. CO, ALBERT D. CO, ANGELITA C. TENG, VIRGINIA C.
RAMOS, CHARLIE D. CO, and ELIZABETH C. PAGUIO,

Petitioners,

- versus -

JOSE CO, as substituted by his legal heirs namely: ROSALINA CO, MARLON CO,
JOSEPH CO, FRANK CO, ANTONIO CO, NELSON CO, ROLAND CO, JOHNSON CO,
CORAZON CO, ADELA CO, SERGIO CO, PAQUITO CO, JOHN CO, NANCY CO, and
TERESITA CO,

Respondents.

G.R. No. 184454

Present:

CARPIO, J., Chairperson,

LEONARDO-DE CASTRO,*

BRION,

PEREZ, and

SERENO, JJ.

Promulgated:

August 3, 2011

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

DECISION

CARPIO, J.:

The Case

Before the Court is a petition1 for review on certiorari assailing the Decision2 dated
23 April 2008 and Resolution3 dated 10 September 2008 of the Court of Appeals
(CA) in CA-G.R. CV. No. 85920.

The Facts

This case involves two lots allegedly co-owned by two brothers, petitioner Co Giok
Lun (Lun) and Co Bon Fieng (Fieng), the father of respondent Jose Co (Co). The lots,
which are situated in Sorsogon province, one in the town of Gubat and the other in
the town of Barcelona, are described as:

Gubat Property

A parcel of commercial/residential land, located at Poblacion, Gubat, Sorsogon,


containing an area of 720.68 square meters, more or less, bounded on the North by
Angel Camara, on the East by Rodolfo Rocha, on the South by Guaria Street and on
the West by Zulueta Street declared under Tax Declaration No. 11379 in the name of
Co Bon Fieng and assessed at P12,370.00.4

Barcelona Property

Terreno cocal radicada en el sitio de Telegrafo barrio de Luneta, Barcelona,


Sorsogon, I. F. cabida de sesenta y cinco (65 a.) lindates por Norte Hertrudes
Casulla, por sur Antonio Evasco, por Este con los manglares y por Oeste Atanacio
Espera y Eugenio Esteves.

Terreno cocalero ubicado en el barrio de Luneta, Barcelona, Sorsogon, I.F. cabida de


una hectaria dies y ocho areas y sesenta y ciete centiarias (1 hects. 18 hareas 67
centiareas) lindantes al Norte Cementerio Municipal antes Eugenio Esteves, al Este
Gabriel Gredoa y Laudia Asis, al Sur Amando Torilla y Florentino Mercader, y al
Oeste Carretera Provincial.

Terreno solar con doce ponos de coco situada en el barrio de Luneta, Barcelona,
Sorsogon, I.F. cabida de dos riales y quevalente a trienta y cuatro areas y un
camarin de materiales fuertes y deficada dentro de la misma lindante al Norte
Camino para S. Antonio, al Sur Eugenio Esteves, al Este Carretera Provincial y al
Oeste a los herederos del defunto Feliciano Fontelar.5

Petitioners, the legal heirs of Lun who died on 12 January 1997, filed a complaint6
for partition and damages against Co with the Regional Trial Court (RTC) of Gubat,
Sorsogon, Branch 54.

Claim of Petitioners

Petitioners claimed that Lun and Fieng came to the Philippines from China in 1929.
Lun allegedly acquired the Gubat property from the P8,000.00 capital the brothers
inherited from their father, Co Chaco (Chaco), before Chaco returned to China in
1926 due to old age. The Gubat property was named under Fieng only since it has
been a common practice and custom in China that properties intended for the
children are placed in the name of the eldest child. The Barcelona property, on the
other hand, was acquired by Chaco in 1923 while he was still doing his business in
Gubat.

Lun and Fieng set up a business, selling and trading of dry goods, called the
Philippine Honest and Company. Using the companys funds, they rented the
property of Crispina Rocha (Rocha), which was mortgaged and finally sold to them in
1935. Later, from the income of the business, they acquired the two adjoining
residential and commercial lots which increased the size of the Gubat property to its
present area of 720.68 square meters.

In 1946, Lun and Fieng dissolved and liquidated the business. After receiving his
share of P26,000 from the liquidation, Lun established his own dry goods business
called Shanghai Trading. Fieng, on the other hand, entered into other businesses
with different partners.

Petitioners claimed that Lun stayed at the Gubat property from the time he arrived
in China in 1929. Lun was the one who religiously paid for the realty taxes and
made several repairs on the building to make the Gubat property habitable. It was
only sometime in 1946 when Lun and Fieng decided to divide the two lots. However,
the partition did not push through on the insistence of their mother, Po Kiat, who
wanted to preserve and maintain close family ties.

Petitioners also alleged that Lun prevented the Gubat property from being
appropriated when the lot was used by Fieng as a loan guarantee. Fieng incurred
the P4,500 obligation from Erquiaga Corporation which Lun assumed and paid
without any contribution from respondents, specifically Co. After Fieng suffered
financial bankruptcy in Manila, he went back to Gubat. Upon the request of their
mother, Lun lent his brother P30,000 which Fieng used to start up a business.
However, until Fiengs death on 8 July 1958, the amount which Lun lent was never
returned to him.

Lun even extended financial assistance to Co amounting to no less than P30,000


which remained unpaid. Later, when Lun already refused to lend money to Co, the
latter made himself the administrator of the Gubat property without Luns
knowledge. Thereafter, Co filed a case for unlawful detainer against Lun with the
Municipal Trial Court (MTC) of Gubat, docketed as Civil Case No. 210. This case was
decided by the MTC in favor of Co but was reversed by the RTC in its Decision dated
28 April 1994. The RTCs decision was later affirmed by the CA and this Court.

Claim of Respondents

On the other hand, respondents, in their Amended Answer, maintained that the
Gubat property is the exclusive property of their father. They asserted that Fieng
acquired the lot by purchase from Rocha in 1935 or nine years after Chaco left for
China in 1926. While Lun was still in China, Fieng and Rocha entered into an
agreement for the use of the lot where Fieng built a camalig and started his sarisari store business. On 13 March 1929, Fieng and Rocha entered into another
contract extending Fiengs right to occupy the lot until 17 August 1938. On 16
March 1930, another extension was given until 19 August 1940. On 13 October
1935, Fieng and Rocha executed a Deed of Absolute Sale where Rocha sold the lot
to Fieng for P3,000. On 6 August 1936, Ireneo Rocha also sold a parcel of the
adjoining land to Fieng which increased the size of the Gubat property to its present
area. Both documents had been properly notarized.

Fieng used the property not only as the familys residence but also for business and
trade purposes until his death in 1958. It was even Fieng who had constructed the
commercial building on the property in 1928. From 1937 to 1983, the land and tax
declarations of the property was in the sole name of their father. In 1983, Co
became the administrator of the Gubat property and had the property declared in
his own name in substitution of his father without any objection from Lun.

Respondents denied that Lun and Fieng entered into any business together.
Respondents claim that it was only in 1956 or 1957 when Lun was taken in by Fieng,
who was then ill and could not manage his general merchandising business. Fieng
allowed Lun to use the lower portion of the Gubat property and let him manage his
business and properties as administrator. Lun was in possession of the property
even after Fiengs death in 1958 because of the consent and tolerance of the
respondents who were still young at that time.

Respondents further insisted that Chaco gave the Barcelona property to Fieng
exclusively as advance inheritance and denied that Co ever borrowed money from

Lun. As a counterclaim, respondents asked for the payment of rent for the use by
Lun of the Gubat property, as well as moral damages, attorneys fees and litigation
expenses.

The RTCs Ruling

In a Decision7 dated 21 July 2004, the RTC decided the case in favor of petitioners.
The RTC stated that the documentary evidence presented in court showed that the
Gubat property is indeed under Fiengs name. However, the chain of events prior to
the purchase of the property and the evidence submitted by the petitioners prove
the presence of co-ownership. The dispositive portion of the decision states:

WHEREFORE, in view of all the foregoing and by preponderance of evidence,


judgment is hereby rendered that the Heirs of Co Chaco are pro indiviso owners of
the Gubat and Barcelona properties which are to be partitioned among these heirs.
They are hereby directed to cause the survey of the property and to submit to this
Court the plan of partition for approval.

No costs.

SO ORDERED.8

The Court of Appeals Ruling

Respondents appealed to the CA. In a Decision dated 23 April 2008, the CA reversed
the decision of the RTC and ruled in favor of the respondents. The dispositive
portion states:

WHEREFORE, in view of the foregoing, the instant appeal is GRANTED. The assailed
decision of the Regional Trial Court of Gubat, Sorsogon (Branch 54) in Civil Case No.
1601, is REVERSED. The order of the trial court to cause the survey of the subject
properties for the partition thereof is SET ASIDE. The subject properties are declared
exclusively owned by Co Bon Fieng, and now by his legal heirs, herein appellants.

SO ORDERED.9

Petitioners filed a motion for reconsideration which the CA denied in a Resolution


dated 10 September 2008.

Hence, this petition.

The Issue

The main issue is whether the CA erred in holding that no co-ownership existed
between Lun and Fieng over the Gubat and Barcelona properties and in declaring
Fieng as the exclusive owner of both properties.

The Courts Ruling

The petition lacks merit.

The original complaint filed by Lun involves an action for partition and damages. A
division of property cannot be ordered by the court unless the existence of coownership is first established. In Ocampo v. Ocampo,10 we held that an action for
partition will not lie if the claimant has no rightful interest over the property. Basic is
the rule that the party making an allegation in a civil case has the burden of proving
it by a preponderance of evidence.

Article 484 of the Civil Code which defines co-ownership, states:

Art. 484. There is co-ownership whenever the ownership of an undivided thing or


right belongs to different persons. x x x

In the present case, petitioners insist that their predecessor-in-interest Lun coowned the Gubat and Barcelona properties with his brother Fieng. To prove coownership over the Gubat property, petitioners presented: (1) tax declarations from
1929 to 1983 under the name of Fieng but paid by Lun; (2) the renewal certificate
from Malayan Insurance Company Inc.; (3) the insurance contract; and (4) the
statements of account from Supreme Insurance Underwriters which named Lun as
administrator of the property. Likewise, to prove their right over the Barcelona
property as legal heirs under intestate succession, petitioners presented a Deed of
Sale dated 24 August 1923 between Chaco, as buyer, and Gabriel Gredona and
Engracia Legata, as sellers, involving a price consideration of P1,200.

On the other hand, respondents presented notarized documents: (1) Deed of Sale
dated 13 October 1935, and (2) Sale of Real Property dated 6 August 1936 showing
that the former owners of the Gubat property entered into a sale transaction with
Fieng, as buyer and Lun, as a witness to the sale. They also presented tax
declarations in the name of Fieng from 1937 to 1958. After Fiengs death, Co
declared the Gubat property in his name in the succeeding tax declarations.
Likewise, the respondents presented documents proving the declaration of the
Barcelona property in the name of Co.

After a careful scrutiny of the records, we hold that the evidence of petitioners were
insufficient or immaterial to warrant a positive finding of co-ownership over the
Gubat and Barcelona properties. The CA correctly observed that petitioners failed to
substantiate with reasonable certainty that (1) Chaco gave Fieng a start-up capital
of P8,000 to be used by Lun and Fieng in setting up a business, (2) that the
Philippine Honest and Company was a partnership between Lun and Fieng, and (3)
that the Deed of Sale dated 24 August 1923 involving the Barcelona property is
sufficient to establish co-ownership. Also, petitioners were not able to prove the
existence of the alleged Chinese custom of placing properties in the name of the
eldest child as provided under Article 1211 of the Civil Code.

In contrast, respondents were able to show documents of sale from the original
owners of the Gubat property rendering the claim of custom as immaterial.12 Also,
respondents sufficiently established that Fieng was the registered owner of the
Gubat and Barcelona properties while Lun was merely an administrator.

The relevant portions of the CA decision provide:

x x x As to the Gubat property, appellee (petitioner Co Giok Lun in this case) failed
to establish the following with reasonable certainty: a) that Co Chaco gave Co Bon
Fieng P8,000.00 as business capital for him and his brother; and b) that Philippine
Honest and Company is a partnership between him and Co Bon Fieng. Appellees
testimony is that his father told him that the latter gave Co Bon Fieng P8,000.00 is
hearsay since he had no personal knowledge of the fact that Co Chaco gave Co Bon
Fieng said amount. Even if the trial court admitted said testimony, it remains
without probative value. x x x Allegedly, this amount was the contribution of
appellee and Co Bon Fieng to the capital of their partnership Philippine Honest and
Company. Nevertheless, by reason of appellees failure to prove the existence of
this amount, the existence of the partnership remains doubtful. Appellee
present[ed] the certification of registration of the Philippine Honest and Company to
prove the existence of the partnership but the registration indicates only the name
of Co Bon Fieng as the owner thereof. Without the capital contribution and the
partnership, appellees claim of co-ownership over the Gubat property does not
have any basis.

To further prove his claim of co-ownership over the Gubat property, appellee
presents Tax Declarations pertaining to the subject property from 1929 to 1983,
renewal certificate from Malayan Insurance Company, Inc., insurance contract and
statements of accounts from Supreme Insurance Underwriters. These documents,
however, uniformly indicate Co Bon Fieng as the owner of the subject property and
appellee as mere administrator thereof. Too, appellee proffers utility bills and
receipts indicating payment to Erquiaga, Inc., a creditor of Co Bon Fieng, in support
of his claim of co-ownership. These documents however, find no relevance in this
case. Appellees assumption of Co Bon Fiengs liabilities and his payment of utilities
without getting any contribution from appellants are kind acts but certainly do not
prove his claim of co-ownership. Neither do the court declarations in Civil Case No.
210 prove appellees claim of co-ownership, for only issues concerning possession
were resolved in said unlawful detainer suit. Lastly, contrary to the claim of
appellee, the affidavit of Co Che Bee, which recognizes appellee as a co-owner of
the subject property, cannot bind Co Bon Fieng, for well-settled is the rule that the
rights of a party cannot be prejudiced by an act, declaration, or omission of another.
Hence, appellees claim of co-ownership over the Gubat property must fail.

Concerning the Barcelona property, appellee proffers a deed of sale dated 24


August 1923 to support his claim that he and Co Bon Fieng are co-owners thereof.
Under said deed, the subject property was sold to Co Chaco. Nevertheless, the deed
proves just that Co Chaco purchased the subject property. It does not establish
subsequent events or validly dispute the transfer of the subject property by Co
Chaco to Co Bon Fieng. Moreover, said document does not have any probative value
to refute the real property tax declarations of the subject property in the name of
appellant Jose Co. This document is inadequate to establish co-ownership between
appellee and Co Bon Fieng over the Barcelona property.

In fine, appellees evidence in support of his claim is either insufficient or immaterial


to warrant the finding that the subject properties fall under the purview of coownership. Appellee failed to prove that he is a co-owner of the subject properties.

In contrast, appellants offer convincing evidence that their father, Co Bon Fieng
owns the subject properties exclusively. In the Deed of Sale dated 13 October
1935 and the Sale of Real Property dated 6 August 1936, the former owners of the
Gubat property sold the same to Co Bon Fieng only. Although appellees signature
appears in the first document as a witness to its execution, there is no indication in
said document or in the other that he was purchasing the subject property together
with Co Bon Fieng. Appellee interjects that the foregoing deeds indicate Co Bon
Fieng as the owner of the subject property because of the Chinese custom that in
similar transactions, the eldest son of the family is normally placed as the purchaser
of a property. Appellee, however, failed to prove this custom as a fact; hence cannot
be given weight.

xxx

After purchasing the Gubat property, Co Bon Fieng declared the same in tax
declarations from 1937 to 1958 as his property. After the death of Co Bon Fieng,
appellant Jose Co declared the Gubat property in his name in ensuing tax
declarations over the same. As well, the Barcelona property is declared in the name
of Jose Co. The Barcelona property was even surveyed for the benefit of appellants,
as heirs of Co Bon Fieng.

xxx

x x x Here, we find compelling reasons to reverse the findings of the trial court and
hold that the subject properties were owned exclusively by Co Bon Fieng, and now
by his legal heirs.13

We see no reason to disturb the findings of the CA. Petitioners failed to substantiate
their claim of co-ownership over the Gubat and Barcelona properties. The action for
partition cannot be acted upon since petitioners failed to establish any rightful
interest in the properties. Petitioners also failed to prove that co-ownership existed
between the parties predecessors-in-interest. Thus, respondents, as legal heirs of
Fieng, are entitled to the exclusive ownership of the Gubat and Barcelona
properties.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 23 April 2008
and Resolution dated 10 September 2008 of the Court of Appeals in CA-G.R. CV. No.
85920.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA

Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 82325 September 26, 1989


ESPIRITU SANTO PAROCHIAL SCHOOL, SISTER MARY MARTINEZ, and SISTER MA.
ENCARNACION DE LOS SANTOS, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, ESPIRITU SANTO PAROCHIAL SCHOOL
FACULTY ASSOCIATION, EVANGELINE LOPEZ, CONSTANCIA TEMPONGKO MARISSA,
MARTIN BRAVO, EDITHA ESPIRITU, VIVIAN CAPATI and CORAZON HADAP respondents.
Padilla Law Office for petitioners.
Dando and Associates Law Offices for private respondents.

SARMIENTO, J.:
This suit for certiorari under Rule 65 of the Rules of Court as brought against the National Labor
Relations Commission upon the finding that the seven individual private respondents had been
illegally dismissed by the petitioners. The facts are not disputed.
The said seven individual private respondents were hired by the petitioner-school on a probationary
basis on June 1, 1984, 1 whereupon, sometime between April 1 and 15, 1985 2 their services were
terminated. On May 8, 1985,2 they charged the petitioner-school with unfair labor practice and illegal
dismissal. They likewise asked for damages. The labor arbiter ruled as follows:
WHEREFORE, judgment is hereby rendered:
a. finding respondents guilty of unfair labor practice, thus enjoining them to cease
and desist from committing acts herein complained of;
b. ordering respondents to reinstate herein individual complainants to their positions
with full backwages from the date corresponding to the start of the school year 19851986 until actually reinstated;
c. ordering respondent to pay complainant the sum equivalent to ten percent (10%)
of the total award as attorney's fees; and
d. dismissing the claim for damages for insufficiency of evidence.
The Socio-Economic Analyst of this Office is directed to effect a computation of the
aforestated backwages of the individual complainants, whose Report shall form part of
this decision. 3

The school appealed to the National Labor Relations Commission, but the decision of the labor
arbiter was affirmed on February 29, 1988 except for the charge of unfair labor practice which was
dismissed for insufficiency of evidence.
In the present petition, the school submits the following issues:
1. The respondents-teachers were not dismissed. Their contracts have, simply,
expired and not renewed.
2. Their contracts subsist from schoolyear to schoolyear, and unless renewed, the
same automatically expire;
3. Although Article 282 of the Labor Code (now, Article 281) fixes probationary
periods to six monthsBiboso v. Victorias Milling Company, Inc.' 4 and Buiser v.
Leogardo 5 supposedly held that the contract of probationary employment may
provide otherwise;
4. The school is not guilty of unfair labor practice, much less, of illegal dismissal,
because school authorities, in terminating the seven private respondents' services,
did not allegedly know that they were union members. Furthermore, it was the head
teachers themselves, also leaders of the union, who recommended termination.
In their comment, however, the said seven private respondents-teachers contend as follows:
1. Under the Manual of Regulations for Private Schools, teachers undergo a
probationary period of three years, during which, they may be dismissed only for a
just cause.
2. Since the said seven teachers were laid off after less than one year of
probationary service, the lay-off was illegal.
The Solicitor General submits that the National Labor Relations Commission committed no grave
abuse of discretion for the following reasons:
1. There was no existing contract between school and teachers stipulating
probationary employment on a schoolyear-to-schoolyear basis. What the teachers
have are only their appointment papers.
2. The petitioner can not rely on the decision in Biboso because, in that case, the
employment contracts were specifically on a year-to-year basis.
3. The teachers'dismissal was therefore without just cause and accordingly, null and
void.
4. There is no basis "not to re-hire" 6 the said teacher in view of their performance
ratings given by head teachers ranging from 80% to 90%.

The Court agrees with the labor arbiter that:


The issues thus obtaining are: (a) whether or not the individual complainants were
lawfully dismissed when respondents failed to hire them; (b) whether or not respondents
committed acts of unfair labor practice in terminating the services of individual
complainants, and (c) whether or not complainants are entitled to damages resulting from
the dismissal of individual complainants. 7

The Court also agrees that:


There is no dispute that the individual complainants were probationary employees
pursuant to the policy enunciated by the Bureau of Private Schools extending the
probationary employment of teachers to three (3) years.
The above policy, however, did not repeal or render inoperative Article 282 of the Labor Code, as
amended which provides that:
. . . The services of an employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualify as a regular employee
in accordance with reasonable standards made known to the employee at the time of
his engagement. . . .
We see no clear evidence that the individual complainants were terminated either for a just cause or
that they have failed to qualify as regular employees in accordance with the standards set by
respondent school made known to the former at the time of hiring. In fact, it is shown that the
individual complainants were issued individual certifications of employment and whose performance
ratings ranged from 85% to 90% (Annexes "D", "D1" to "D-5"-Complainants' Position Paper). 8
The Court, finally, stamps its approval on the following:
It is not denied that the complainants were hired as probationary teachers, but the reason
for their termination should nevertheless be for a valid cause or causes. It must be clearly
shown that they have failed to meet certain standards or criteria made known to them
beforehand. It cannot be said that they failed to meet respondents' standards because of
their high marks of performance. Hence, We see no valid reason for the school not to rehire them, except, of course, for some reasons known only to the school authorities but
which they did not make known to herein complainants. . . . 9

As to contentions, advanced so vehemently by the petitioners, that "the decision not to re-hire the
seven individual respondents was made by the three head teachers of the school, all of them
leaders and organizers of the respondent union . . . 1O and that "[h]ence, there could not have been
any anti-union bias ...," 11 suffice it to say that the fact that no "anti union bias has been shown is not
entirely exculpatory. The fact remains that the private respondents teachers were dismissed not for
cause, when, under both the Manual of Regulations for Private Schools and Article 281 (formerly
Article 282) of the Labor Code, probationary workers may be terminated only for cause.

It will not also do to say that since the contracts to teach in question were for fixed periods, they die
a natural death, so to speak, on the expiration of such periods, which is supposed to
be Biboso's teaching. It should likewise be pointed out, however, and so we reiterate the Solicitor
General's very submission, that in Biboso, the contracts to teach were for definite periods. ("None of
the complainants who testified disputed the fact that they all signed identical contracts of
employment which provided for a definite period of employment expiring June 30 of the particular
school year ." 12 On the other hand, the contracts involved here stipulate no period. In that
eventuality, the three-year probation period provided by the Manual of Regulations for Private
Schools must apply. Under the Manual, no teacher may be removed unless for just and valid
causes. The petitioners can not, therefore, successfully invoke Bibioso. Resort therefore to the
Manual is not only justifiable but unavoidable.
That "it is of common knowledge that in all private schools, the first three years of probationary
employment ... is on a schoolyear basis . . ." 13 is self-defeating. First, the Court is unaware of any
"common knowledge" thereof. If such a custom indeed exists, it has not been adequately proven.
Under Article 12 of the Civil Code. "[a] custom must be proved as a fact, according to the rules of
evidence." Second, the petitioners can not talk of a "three-year probationary employment expiring
each schoolyear." If it expires per schoolyear, it is not a three-year period.
Recourse to the school manual of the petitioner school, which provides:
III. ACADEMIC PERSONNEL POLICIES
xxx
C. PROBATIONARY:
Teachers who have not served the school for three consecutive years are classified as
non-permanent. They are under probation. Their contract with the school automatically
terminates effectively (at the) end of every school year unless the teacher concerned is
dismissed for cause or has resigned from the service before the end of the school year.
Probation is a test of moral and professional fitness of a teacher. 14

is equally unavailing. The school manual must yield to the decree of the Manual of Regulations for
Private Schools of the Department of Education, which has the character of law.
While the facts are hazy as to the existence of an "anti-union bias," so strongly stressed by the
petitioners, the same can not validate the questioned dismissals that were, unarguably, without the
sanction of a legal cause.
Accordingly, we find no grave abuse of discretion committed by the respondent National Labor
Relations Commission in its assailed decision.
WHEREFORE, the petition is DENIED. The decision of the public respondent promulgated on
February 29, 1988, is

AFFIRMED in toto except that back wages shall be limited to three years.
No costs.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and Regalado, JJ., concur.
Padilla, J., took no part.

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 120865-71

December 7, 1995

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE HERCULANO TECH, PRESIDING JUDGE, BRANCH
70, REGIONAL TRIAL COURT OF BINANGONAN RIZAL; FLEET DEVELOPMENT, INC. and
CARLITO ARROYO; THE MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B.
PACIS, respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE AURELIO C. TRAMPE, PRESIDING JUDGE, BRANCH
163, REGIONAL TRIAL COURT OF PASIG; MANILA MARINE LIFE BUSINESS
RESOURCES, INC. represented by, MR. TOBIAS REYNALD M. TIANGCO; MUNICIPALITY
OF TAGUIG, METRO MANILA and/or MAYOR RICARDO D. PAPA, JR., respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE ALEJANDRO A. MARQUEZ, PRESIDING JUDGE,
BRANCH 79, REGIONAL TRIAL COURT OF MORONG, RIZAL; GREENFIELD VENTURES
INDUSTRIAL DEVELOPMENT CORPORATION and R. J. ORION DEVELOPMENT
CORPORATION; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA
VEGA, respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE MANUEL S. PADOLINA, PRESIDING JUDGE, BRANCH
162, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; IRMA FISHING & TRADING
CORP.; ARTM FISHING CORP.; BDR CORPORATION, MIRT CORPORATION and TRIM
CORPORATION; MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS,
respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH
78, REGIONAL TRIAL COURT OF MORONG, RIZAL; BLUE LAGOON FISHING CORP. and
ALCRIS CHICKEN GROWERS, INC.; MUNICIPALITY OF JALA-JALA and/or MAYOR
WALFREDO M. DE LA VEGA, respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.

COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH


78, REGIONAL TRIAL COURT OF MORONG, RIZAL; AGP FISH VENTURES, INC.,
represented by its PRESIDENT ALFONSO PUYAT; MUNICIPALITY OF JALA-JALA and/or
MAYOR WALFREDO M. DE LA VEGA, respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS; HON. JUDGE EUGENIO S. LABITORIA, PRESIDING JUDGE,
BRANCH 161, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; SEA MAR TRADING
CO. INC.; EASTERN LAGOON FISHING CORP.; MINAMAR FISHING CORP.; MUNICIPALITY
OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents.

HERMOSISIMA, JR., J.:

It is difficult for a man, scavenging on the garbage dump created by affluence and
profligate consumption and extravagance of the rich or fishing in the murky waters
of the Pasig River and the Laguna Lake or making a clearing in the forest so that he
can produce food for his family, to understand why protecting birds, fish, and trees
is more important than protecting him and keeping his family alive.

How do we strike a balance between environmental protection, on the one hand,


and the individual personal interests of people, on the other?

Towards environmental protection and ecology, navigational safety, and sustainable


development, Republic Act No. 4850 created the "Laguna Lake Development
Authority." This Government Agency is supposed to carry out and effectuate the
aforesaid declared policy, so as to accelerate the development and balanced growth
of the Laguna Lake area and the surrounding provinces, cities and towns, in the act
clearly named, within the context of the national and regional plans and policies for
social and economic development.

Presidential Decree No. 813 of former President Ferdinand E. Marcos amended


certain sections of Republic Act No. 4850 because of the concern for the rapid
expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna
de Bay, combined with current and prospective uses of the lake for municipalindustrial water supply, irrigation, fisheries, and the like. Concern on the part of the
Government and the general public over: the environment impact of
development on the water quality and ecology of the lake and its related river
systems; the inflow of polluted water from the Pasig River, industrial, domestic and
agricultural wastes from developed areas around the lake; the increasing
urbanization which induced the deterioration of the lake, since water quality studies
have shown that the lake will deteriorate further if steps are not taken to check the
same; and the floods in Metropolitan Manila area and the lakeshore towns which will
influence the hydraulic system of Laguna de Bay, since any scheme of controlling
the floods will necessarily involve the lake and its river systems, likewise gave
impetus to the creation of the Authority.

Section 1 of Republic Act No. 4850 was amended to read as follows:

Sec. 1.
Declaration of Policy. It is hereby declared to be the national policy to
promote, and accelerate the development and balanced growth of the Laguna Lake
area and the surrounding provinces, cities and towns hereinafter referred to as the
region, within the context of the national and regional plans and policies for social
and economic development and to carry out the development of the Laguna Lake
region with due regard and adequate provisions for environmental management
and control, preservation of the quality of human life and ecological systems, and
the prevention of undue ecological disturbances, deterioration and pollution. 1

Special powers of the Authority, pertinent to the issues in this case, include:

Sec. 3.
Section 4 of the same Act is hereby further amended by adding thereto
seven new paragraphs to be known as paragraphs (j), (k), (l), (m), (n), (o), and (p)
which shall read as follows:

xxx

xxx

xxx

(j)
The provisions of existing laws to the contrary notwithstanding, to engage in
fish production and other aqua-culture projects in Laguna de Bay and other bodies
of water within its jurisdiction and in pursuance thereof to conduct studies and
make experiments, whenever necessary, with the collaboration and assistance of
the Bureau of Fisheries and Aquatic Resources, with the end in view of improving
present techniques and practices. Provided, that until modified, altered or amended
by the procedure provided in the following sub-paragraph, the present laws, rules
and permits or authorizations remain in force;

(k)
For the purpose of effectively regulating and monitoring activities in Laguna
de Bay, the Authority shall have exclusive jurisdiction to issue new permit for the
use of the lake waters for any projects or activities in or affecting the said lake
including navigation, construction, and operation of fishpens, fish enclosures, fish
corrals and the like, and to impose necessary safeguards for lake quality control and
management and to collect necessary fees for said activities and projects: Provided,
That the fees collected for fisheries may be shared between the Authority and other
government agencies and political sub-divisions in such proportion as may be
determined by the President of the Philippines upon recommendation of the
Authority's Board: Provided, further, That the Authority's Board may determine new
areas of fishery development or activities which it may place under the supervision
of the Bureau of Fisheries and Aquatic Resources taking into account the overall
development plans and programs for Laguna de Bay and related bodies of water:
Provided, finally, That the Authority shall subject to the approval of the President of
the Philippines promulgate such rules and regulations which shall govern fisheries
development activities in Laguna de Bay which shall take into consideration among
others the following: socio-economic amelioration of bonafide resident fishermen
whether individually or collectively in the form of cooperatives, lakeshore town
development, a master plan for fishpen construction and operation, communal
fishing ground for lake shore town residents, and preference to lake shore town
residents in hiring laborer for fishery projects;

(l)
To require the cities and municipalities embraced within the region to pass
appropriate zoning ordinances and other regulatory measures necessary to carry
out the objectives of the Authority and enforce the same with the assistance of the
Authority;

(m)
The provisions of existing laws to the contrary notwithstanding, to exercise
water rights over public waters within the Laguna de Bay region whenever
necessary to carry out the Authority's projects;

(n)
To act in coordination with existing governmental agencies in establishing
water quality standards for industrial, agricultural and municipal waste discharges
into the lake and to cooperate with said existing agencies of the government of the
Philippines in enforcing such standards, or to separately pursue enforcement and
penalty actions as provided for in Section 4 (d) and Section 39-A of this Act:
Provided, That in case of conflict on the appropriate water quality standard to be
enforced such conflict shall be resolved thru the NEDA Board. 2

To more effectively perform the role of the Authority under Republic Act No. 4850,
as though Presidential Decree No. 813 were not thought to be completely effective,
the Chief Executive, feeling that the land and waters of the Laguna Lake Region are
limited natural resources requiring judicious management to their optimal utilization
to insure renewability and to preserve the ecological balance, the competing
options for the use of such resources and conflicting jurisdictions over such uses
having created undue constraints on the institutional capabilities of the Authority in
the light of the limited powers vested in it by its charter, Executive Order No. 927
further defined and enlarged the functions and powers of the Authority and named
and enumerated the towns, cities and provinces encompassed by the term "Laguna
de Bay Region".

Also, pertinent to the issues in this case are the following provisions of Executive
Order No. 927 which include in particular the sharing of fees:

Sec 2. Water Rights Over Laguna de Bay and Other Bodies of Water within the Lake
Region: To effectively regulate and monitor activities in the Laguna de Bay region,
the Authority shall have exclusive jurisdiction to issue permit for the use of all
surface water for any projects or activities in or affecting the said region including
navigation, construction, and operation of fishpens, fish enclosures, fish corrals and
the like.

For the purpose of this Executive Order, the term "Laguna de Bay Region" shall refer
to the Provinces of Rizal and Laguna; the Cities of San Pablo, Pasay, Caloocan,
Quezon, Manila and Tagaytay; the towns of Tanauan, Sto. Tomas and Malvar in
Batangas Province; the towns of Silang and Carmona in Cavite Province; the town of
Lucban in Quezon Province; and the towns of Marikina, Pasig, Taguig, Muntinlupa,
and Pateros in Metro Manila.

Sec 3. Collection of Fees. The Authority is hereby empowered to collect fees for the
use of the lake water and its tributaries for all beneficial purposes including but not
limited to fisheries, recreation, municipal, industrial, agricultural, navigation,
irrigation, and waste disposal purpose; Provided, that the rates of the fees to be
collected, and the sharing with other government agencies and political
subdivisions, if necessary, shall be subject to the approval of the President of the
Philippines upon recommendation of the Authority's Board, except fishpen fee,
which will be shared in the following manner; 20 percent of the fee shall go to the
lakeshore local governments, 5 percent shall go to the Project Development Fund
which shall be administered by a Council and the remaining 75 percent shall
constitute the share of LLDA. However, after the implementation within the threeyear period of the Laguna Lake Fishery Zoning and Management Plan, the sharing
will be modified as follows: 35 percent of the fishpen fee goes to the lakeshore local
governments, 5 percent goes to the Project Development Fund and the remaining
60 percent shall be retained by LLDA; Provided, however, that the share of LLDA
shall form part of its corporate funds and shall not be remitted to the National
Treasury as an exception to the provisions of Presidential Decree No. 1234.
(Emphasis supplied)

It is important to note that Section 29 of Presidential Decree No. 813 defined the
term "Laguna Lake" in this manner:

Sec 41.

Definition of Terms.

(11) Laguna Lake or Lake. Whenever Laguna Lake or lake is used in this Act, the
same shall refer to Laguna de Bay which is that area covered by the lake water
when it is at the average annual maximum lake level of elevation 12.50 meters, as
referred to a datum 10.00 meters below mean lower low water (M.L.L.W). Lands
located at and below such elevation are public lands which form part of the bed of
said lake.

Then came Republic Act No. 7160, the Local Government Code of 1991. The
municipalities in the Laguna Lake Region interpreted the provisions of this law to
mean that the newly passed law gave municipal governments the exclusive
jurisdiction to issue fishing privileges within their municipal waters because R.A.
7160 provides:

Sec. 149.

Fishery Rentals, Fees and Charges.

(a)
Municipalities shall have the exclusive authority to grant fishery privileges in
the municipal waters and impose rental fees or charges therefor in accordance with
the provisions of this Section.

(b)

The Sangguniang Bayan may:

(1)
Grant fishing privileges to erect fish corrals, oyster, mussel or other aquatic
beds or bangus fry areas, within a definite zone of the municipal waters, as
determined by it; . . . .

(2)
Grant privilege to gather, take or catch bangus fry, prawn fry or kawag-kawag
or fry of other species and fish from the municipal waters by nets, traps or other
fishing gears to marginal fishermen free from any rental fee, charges or any other
imposition whatsoever.

xxx

xxx

Sec. 447.

xxx

xxx

xxx

Power, Duties, Functions and Compensation. . . . .

xxx

(XI)
Subject to the provisions of Book II of this Code, grant exclusive privileges of
constructing fish corrals or fishpens, or the taking or catching of bangus fry, prawn
fry or kawag-kawag or fry of any species or fish within the municipal waters.

xxx

xxx

xxx

Municipal governments thereupon assumed the authority to issue fishing privileges


and fishpen permits. Big fishpen operators took advantage of the occasion to
establish fishpens and fishcages to the consternation of the Authority. Unregulated
fishpens and fishcages, as of July, 1995, occupied almost one-third of the entire lake
water surface area, increasing the occupation drastically from 7,000 hectares in
1990 to almost 21,000 hectares in 1995. The Mayor's permit to construct fishpens
and fishcages were all undertaken in violation of the policies adopted by the
Authority on fishpen zoning and the Laguna Lake carrying capacity.

To be sure, the implementation by the lakeshore municipalities of separate


independent policies in the operation of fishpens and fishcages within their claimed
territorial municipal waters in the lake and their indiscriminate grant of fishpen
permits have already saturated the lake area with fishpens, thereby aggravating the
current environmental problems and ecological stress of Laguna Lake.

In view of the foregoing circumstances, the Authority served notice to the general
public that:

In compliance with the instructions of His Excellency PRESIDENT FIDEL V. RAMOS


given on June 23, 1993 at Pila, Laguna pursuant to Republic Act 4850 as amended
by Presidential Decree 813 and Executive Order 927 series of 1983 and in line with
the policies and programs of the Presidential Task Force on Illegal Fishpens and
Illegal Fishing, the general public is hereby notified that:

1.
All fishpens, fishcages and other aqua-culture structures in the Laguna de
Bay Region, which were not registered or to which no application for registration
and/or permit has been filed with Laguna Lake Development Authority as of March
31, 1993 are hereby declared outrightly as illegal.

2.
All fishpens, fishcages and other aqua-culture structures so declared as illegal
shall be subject to demolition which shall be undertaken by the Presidential Task
Force for Illegal Fishpen and Illegal Fishing.

3.
Owners of fishpens, fishcages and other aqua-culture structures declared as
illegal shall, without prejudice to demolition of their structures be criminally charged
in accordance with Section 39-A of Republic Act 4850 as amended by P.D. 813 for

violation of the same laws. Violations of these laws carries a penalty of


imprisonment of not exceeding 3 years or a fine not exceeding Five Thousand Pesos
or both at the discretion of the court.

All operators of fishpens, fishcages and other aqua-culture structures declared as


illegal in accordance with the foregoing Notice shall have one (1) month on or
before 27 October 1993 to show cause before the LLDA why their said fishpens,
fishcages and other aqua-culture structures should not be demolished/dismantled.

One month, thereafter, the Authority sent notices to the concerned owners of the
illegally constructed fishpens, fishcages and other aqua-culture structures advising
them to dismantle their respective structures within 10 days from receipt thereof,
otherwise, demolition shall be effected.

Reacting thereto, the affected fishpen owners filed injunction cases against the
Authority before various regional trial courts, to wit: (a) Civil Case No. 759-B, for
Prohibition, Injunction and Damages, Regional Trial Court, Branch 70, Binangonan,
Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b) Civil Case No. 64049,
for Injunction, Regional Trial Court, Branch 162, Pasig, filed by IRMA Fishing and
Trading Corp., ARTM Fishing Corp., BDR Corp., MIRT Corp. and TRIM Corp.; (c) Civil
Case No. 566, for Declaratory Relief and Injunction, Regional Trial Court, Branch 163,
Pasig, filed by Manila Marine Life Business Resources, Inc. and Tobias Reynaldo M.
Tianco; (d) Civil Case No. 556-M, for Prohibition, Injunction and Damages, Regional
Trial Court, Branch 78, Morong, Rizal, filed by AGP Fishing Ventures, Inc.; (e) Civil
Case No. 522-M, for Prohibition, Injunction and Damages, Regional Trial Court,
Branch 78, Morong, Rizal, filed by Blue Lagoon and Alcris Chicken Growers, Inc.; (f)
Civil Case No. 554-, for Certiorari and Prohibition, Regional Trial Court, Branch 79,
Morong, Rizal, filed by Greenfields Ventures Industrial Corp. and R.J. Orion
Development Corp.; and (g) Civil Case No. 64124, for Injunction, Regional Trial
Court, Branch 15, Pasig, filed by SEA-MAR Trading Co., Inc. and Eastern Lagoon
Fishing Corp. and Minamar Fishing Corporation.

The Authority filed motions to dismiss the cases against it on jurisdictional grounds.
The motions to dismiss were invariably denied. Meanwhile, temporary restraining
order/writs of preliminary mandatory injunction were issued in Civil Cases Nos.
64124, 759 and 566 enjoining the Authority from demolishing the fishpens and
similar structures in question.

Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos.
120865-71, were filed by the Authority with this court. Impleaded as partiesrespondents are concerned regional trial courts and respective private parties, and
the municipalities and/or respective Mayors of Binangonan, Taguig and Jala-jala, who
issued permits for the construction and operation of fishpens in Laguna de Bay. The
Authority sought the following reliefs, viz.:

(A)
Nullification of the temporary restraining order/writs of preliminary injunction
issued in Civil Cases Nos. 64125, 759 and 566;

(B)
Permanent prohibition against the regional trial courts from exercising
jurisdiction over cases involving the Authority which is a co-equal body;

(C)
Judicial pronouncement that R.A. 7610 (Local Government Code of 1991) did
not repeal, alter or modify the provisions of R.A. 4850, as amended, empowering the
Authority to issue permits for fishpens, fishcages and other aqua-culture structures
in Laguna de Bay and that, the Authority the government agency vested with
exclusive authority to issue said permits.

By this Court's resolution of May 2, 1994, the Authority's consolidated petitions were
referred to the Court of Appeals.

In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's
consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among
those quasi-judicial agencies of government whose decision or order are appealable
only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial
functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter
insofar as fishing privileges in Laguna de Bay are concerned had been repealed by
the Local Government Code of 1991; (D) in view of the aforesaid repeal, the power
to grant permits devolved to and is now vested with their respective local
government units concerned.

Not satisfied with the Court of Appeals decision, the Authority has returned to this
Court charging the following errors:

1.
THE HONORABLE COURT OF APPEALS PROBABLY COMMITTED AN ERROR
WHEN IT RULED THAT THE LAGUNA LAKE DEVELOPMENT AUTHORITY IS NOT A
QUASI-JUDICIAL AGENCY.

2.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT
RULED THAT R.A. 4850 AS AMENDED BY P.D. 813 AND E.O. 927 SERIES OF 1983 HAS
BEEN REPEALED BY REPUBLIC ACT 7160. THE SAID RULING IS CONTRARY TO
ESTABLISHED PRINCIPLES AND JURISPRUDENCE OF STATUTORY CONSTRUCTION.

3.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT
RULED THAT THE POWER TO ISSUE FISHPEN PERMITS IN LAGUNA DE BAY HAS BEEN
DEVOLVED TO CONCERNED (LAKESHORE) LOCAL GOVERNMENT UNITS.

We take a simplistic view of the controversy. Actually, the main and only issue posed
is: Which agency of the Government the Laguna Lake Development Authority or
the towns and municipalities comprising the region should exercise jurisdiction
over the Laguna Lake and its environs insofar as the issuance of permits for fishery
privileges is concerned?

Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic Act
No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of Executive
Order No. 927, cited above, specifically provide that the Laguna Lake Development
Authority shall have exclusive jurisdiction to issue permits for the use of all surface
water for any projects or activities in or affecting the said region, including
navigation, construction, and operation of fishpens, fish enclosures, fish corrals and
the like. On the other hand, Republic Act No. 7160, the Local Government Code of
1991, has granted to the municipalities the exclusive authority to grant fishery
privileges in municipal waters. The Sangguniang Bayan may grant fishery privileges
to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry area within
a definite zone of the municipal waters.

We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the
aforementioned laws creating the Laguna Lake Development Authority and granting
the latter water rights authority over Laguna de Bay and the lake region.

The Local Government Code of 1991 does not contain any express provision which
categorically expressly repeal the charter of the Authority. It has to be conceded
that there was no intent on the part of the legislature to repeal Republic Act No.
4850 and its amendments. The repeal of laws should be made clear and expressed.

It has to be conceded that the charter of the Laguna Lake Development Authority
constitutes a special law. Republic Act No. 7160, the Local Government Code of
1991, is a general law. It is basic in statutory construction that the enactment of a
later legislation which is a general law cannot be construed to have repealed a
special law. It is a well-settled rule in this jurisdiction that "a special statute,
provided for a particular case or class of cases, is not repealed by a subsequent
statute, general in its terms, provisions and application, unless the intent to repeal
or alter is manifest, although the terms of the general law are broad enough to
include the cases embraced in the special law." 3

Where there is a conflict between a general law and a special statute, the special
statute should prevail since it evinces the legislative intent more clearly than the
general statute. The special law is to be taken as an exception to the general law in
the absence of special circumstances forcing a contrary conclusion. This is because
implied repeals are not favored and as much as possible, effect must be given to all
enactments of the legislature. A special law cannot be repealed, amended or altered
by a subsequent general law by mere implication. 4

Thus, it has to be concluded that the charter of the Authority should prevail over the
Local Government Code of 1991.

Considering the reasons behind the establishment of the Authority, which are
environmental protection, navigational safety, and sustainable development, there
is every indication that the legislative intent is for the Authority to proceed with its
mission.

We are on all fours with the manifestation of petitioner Laguna Lake Development
Authority that "Laguna de Bay, like any other single body of water has its own
unique natural ecosystem. The 900 km lake surface water, the eight (8) major river
tributaries and several other smaller rivers that drain into the lake, the 2,920 km
basin or watershed transcending the boundaries of Laguna and Rizal provinces,
greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon provinces,

constitute one integrated delicate natural ecosystem that needs to be protected


with uniform set of policies; if we are to be serious in our aims of attaining
sustainable development. This is an exhaustible natural resource a very limited
one which requires judicious management and optimal utilization to ensure
renewability and preserve its ecological integrity and balance."

"Managing the lake resources would mean the implementation of a national policy
geared towards the protection, conservation, balanced growth and sustainable
development of the region with due regard to the inter-generational use of its
resources by the inhabitants in this part of the earth. The authors of Republic Act
4850 have foreseen this need when they passed this LLDA law the special law
designed to govern the management of our Laguna de Bay lake resources."

"Laguna de Bay therefore cannot be subjected to fragmented concepts of


management policies where lakeshore local government units exercise exclusive
dominion over specific portions of the lake water. The garbage thrown or sewage
discharged into the lake, abstraction of water therefrom or construction of fishpens
by enclosing its certain area, affect not only that specific portion but the entire 900
km of lake water. The implementation of a cohesive and integrated lake water
resource management policy, therefore, is necessary to conserve, protect and
sustainably develop Laguna de Bay." 5

The power of the local government units to issue fishing privileges was clearly
granted for revenue purposes. This is evident from the fact that Section 149 of the
New Local Government Code empowering local governments to issue fishing
permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the
heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of
Local Government Units."

On the other hand, the power of the Authority to grant permits for fishpens,
fishcages and other aqua-culture structures is for the purpose of effectively
regulating and monitoring activities in the Laguna de Bay region (Section 2,
Executive Order No. 927) and for lake quality control and management. 6 It does
partake of the nature of police power which is the most pervasive, the least
limitable and the most demanding of all State powers including the power of
taxation. Accordingly, the charter of the Authority which embodies a valid exercise
of police power should prevail over the Local Government Code of 1991 on matters
affecting Laguna de Bay.

There should be no quarrel over permit fees for fishpens, fishcages and other aquaculture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927
provides for the proper sharing of fees collected.

In respect to the question as to whether the Authority is a quasi-judicial agency or


not, it is our holding that, considering the provisions of Section 4 of Republic Act No.
4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling of this
Court in Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 304,
306, which we quote:

xxx

xxx

xxx

As a general rule, the adjudication of pollution cases generally pertains to the


Pollution Adjudication Board (PAB), except in cases where the special law provides
for another forum. It must be recognized in this regard that the LLDA, as a
specialized administrative agency, is specifically mandated under Republic Act No.
4850 and its amendatory laws to carry out and make effective the declared national
policy of promoting and accelerating the development and balanced growth of the
Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities
of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate
provisions for environmental management and control, preservation of the quality
of human life and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad grant of power and
authority, the LLDA, by virtue of its special charter, obviously has the responsibility
to protect the inhabitants of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the surrounding areas. In
carrying out the aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans, programs, and projects
proposed by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans, programs and/or
projects are related to those of the LLDA for the development of the region.

xxx

xxx

xxx

. . . . While it is a fundamental rule that an administrative agency has only such


powers as are expressly granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are necessarily implied in the
exercise of its express powers. In the exercise, therefore, of its express powers
under its charter, as a regulatory and quasi-judicial body with respect to pollution
cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and
desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless"
paper agency.

there is no question that the Authority has express powers as a regulatory and
quasi-judicial body in respect to pollution cases with authority to issue a "cease and
desist order" and on matters affecting the construction of illegal fishpens, fishcages
and other aqua-culture structures in Laguna de Bay. The Authority's pretense,
however, that it is co-equal to the Regional Trial Courts such that all actions against
it may only be instituted before the Court of Appeals cannot be sustained. On
actions necessitating the resolution of legal questions affecting the powers of the
Authority as provided for in its charter, the Regional Trial Courts have jurisdiction.

In view of the foregoing, this Court holds that Section 149 of Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, has not repealed the
provisions of the charter of the Laguna Lake Development Authority, Republic Act
No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue
permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of
municipalities situated therein and the authority to exercise such powers as are by
its charter vested on it.

Removal from the Authority of the aforesaid licensing authority will render nugatory
its avowed purpose of protecting and developing the Laguna Lake Region.
Otherwise stated, the abrogation of this power would render useless its reason for
being and will in effect denigrate, if not abolish, the Laguna Lake Development
Authority. This, the Local Government Code of 1991 had never intended to do.

WHEREFORE, the petitions for prohibition, certiorari and injunction are hereby
granted, insofar as they relate to the authority of the Laguna Lake Development
Authority to grant fishing privileges within the Laguna Lake Region.

The restraining orders and/or writs of injunction issued by Judge Arturo Marave, RTC,
Branch 78, Morong, Rizal; Judge Herculano Tech, RTC, Branch 70, Binangonan, Rizal;
and Judge Aurelio Trampe, RTC, Branch 163, Pasig, Metro Manila, are hereby
declared null and void and ordered set aside for having been issued with grave
abuse of discretion.

The Municipal Mayors of the Laguna Lake Region are hereby prohibited from issuing
permits to construct and operate fishpens, fishcages and other aqua-culture
structures within the Laguna Lake Region, their previous issuances being declared
null and void. Thus, the fishing permits issued by Mayors Isidro B. Pacis, Municipality
of Binangonan; Ricardo D. Papa, Municipality of Taguig; and Walfredo M. de la Vega,
Municipality of Jala-jala, specifically, are likewise declared null and void and ordered
cancelled.

The fishpens, fishcages and other aqua-culture structures put up by operators by


virtue of permits issued by Municipal Mayors within the Laguna Lake Region,
specifically, permits issued to Fleet Development, Inc. and Carlito Arroyo; Manila
Marine Life Business Resources, Inc., represented by, Mr. Tobias Reynald M. Tiangco;
Greenfield Ventures Industrial Development Corporation and R.J. Orion Development
Corporation; IRMA Fishing And Trading Corporation, ARTM Fishing Corporation, BDR
Corporation, Mirt Corporation and Trim Corporation; Blue Lagoon Fishing Corporation
and ALCRIS Chicken Growers, Inc.; AGP Fish Ventures, Inc., represented by its
President Alfonso Puyat; SEA MAR Trading Co., Inc., Eastern Lagoon Fishing
Corporation, and MINAMAR Fishing Corporation, are hereby declared illegal
structures subject to demolition by the Laguna Lake Development Authority.

SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only
like to stress what the decision already states, i.e., that the local government units
in the Laguna Lake area are not precluded from imposing permits on fishery
operations for revenue raising purposes of such local government units. In other
words, while the exclusive jurisdiction to determine whether or not projects or
activities in the lake area should be allowed, as well as their regulation, is with the
Laguna Lake Development Authority, once the Authority grants a permit, the
permittee may still be subjected to an additional local permit or license for revenue
purposes of the local government units concerned. This approach would clearly
harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160,
the Local Government Code. It will also enable small towns and municipalities in the
lake area, like Jala-Jala, to rise to some level of economic viability.

Separate Opinions

PADILLA, J., concurring:

I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only
like to stress what the decision already states, i.e., that the local government units
in the Laguna Lake area are not precluded from imposing permits on fishery
operations for revenue raising purposes of such local government units. In other
words, while the exclusive jurisdiction to determine whether or not projects or
activities in the lake area should be allowed, as well as their regulation, is with the
Laguna Lake Development Authority, once the Authority grants a permit, the
permittee may still be subjected to an additional local permit or license for revenue

purposes of the local government units concerned. This approach would clearly
harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160,
the Local Government Code. It will also enable small towns and municipalities in the
lake area, like Jala-Jala, to rise to some level of economic viability.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-28841 June 24, 1983
RAFAEL YAPDIANGCO, petitioner-appellant,
vs.
THE HON. CONCEPCION B. BUENCAMINO and HON. JUSTINIANO CORTEZ, respondentsappellees.

GUTIERREZ, JR., J.:


If the last day in the period of prescription of a felony falls on a Sunday or legal holiday, may the
information be filed on the next working day?
Stated otherwise, the issue in this appeal from a decision of the Court of First Instance of Rizal
Branch IX at Quezon City is whether or not a Sunday or a legal holiday is a legal efficient cause
which interrupts the prescription of an offense.
On February 1, 1965, the City Fiscal of Quezon City filed before the City Court an information for
slight physical injuries allegedly committed by the petitioner-appellant on December 2, 1964 against
Mr. Ang Cho Ching.
On September 10, 1965, the petitioner-appellant moved to quash the criminal prosecution on the
ground that the information having been filed on the sixty first day following the commission of the
offense, the sixty days prescriptive period had lapsed.
On September 14, 1965, the City Court of Quezon City denied the motion to quash stating that the
60th day fell on a Sunday and considering the rule that when the last day for the filing of a pleading
falls on a Sunday, the same may be filed on the next succeeding business day, the action had not
prescribed.

After a motion for reconsideration was denied by the City Court, the petitioner-appellant filed a
petition for certiorari and mandamus with preliminary injunction before the Court of First Instance of
Rizal.
On July 11, 1966, the Court of First Instance of Rizal dismissed the petition. A motion for
reconsideration was subsequently denied. Hence, this appeal.
The petitioner-appellant raised the following assignments of errors:
FIRST ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN FINDING THAT SUNDAY IS A LEGAL EFFICIENT
CAUSE TO INTERRUPT PRESCRIPTION OF AN OFFENSE.
SECOND ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN FINDING THAT THE PERIOD FIXED BY LAW
WITHIN WHICH TO COMMENCE CRIMINAL PROSECUTION MAY LEGALLY BE
EXTENDED WITH THE INTERVENTION OF A SUNDAY OR LEGAL HOLIDAY.
THIRD ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN DENYING THE PETITION FOR mandamus AND
PRELIMINARY INJUNCTION.
Under Article 90 of the Revised Penal Code, light offenses prescribe in two months. Article 13 of the
Civil Code provides that when the law speaks of months, it shall be understood that months are of
thirty days each
Article 91 of the Revised Penal Code reads:
ART. 91. Computation of prescription of offenses.The Period of Prescription shall
commence to run from the day on which the crime is discovered by the offended
party, the authorities or their agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.
In support of his three assignments of errors which he discusses jointly, the petitioner-appellant
argues:
xxx xxx xxx

b) the fact that the 60th day was a Sunday did not interrupt nor stop the running of
the prescriptive period, for
i) as a matter of statutory articulation a Sunday or holiday is not
recognized as legally efficient cause to interrupt prescription;
ii) under the principle of inclusio unius exclusion alterius, the single
exception of offender's absence specified in Article 91 of the Revised
Penal Code excludes any other cause sufficient to interrupt
prescription;
iii) under the specific and controlling jurisprudence of the cases that
the last day of prescriptive period is a Sunday or a holiday does not
interrupt prescription
15 AM. Jur., Section 346, page 34:
The statute of limitations run from the time the offense is committed
until the prosecution is commenced.
Ibid., Section 357, page 37:
The running of the statute of limitation can be prevented only by the
means or for the reasons specified therein.
Ibid., Section 342, page 32:
Statutes of stations in criminal cases differ from those in civil cases.
In civil cases they are statutes of repose, while in criminal cases they
create a bar to the prosecution. ...
As a general rule, exceptions will not be implied to the statutes of
stations of criminal offenses, and hence, in criminal prosecutions
unless the statute of stations contains an exception or condition that
will ton its operation, the running of the statute is not interrupted, save
only by indictment or other rsufficient procedure commencing the
prosecution of the offense. After the statute has commenced to run it
will not be interrupted by the happening of any subsequent event or
disability ...
45 Century Digest, Time, Section 41:
When an action would be barred on Sunday, that day must be
excluded from the count and the action brought on the Saturday
preceding, to save the bar. (Allen vs. Elliot, 67 Ala. 432.)

Where the year in which to begin an action expires on Sunday, the


action must be begun on the preceding day. (William vs. Lane, 87
Wis. 152, 58 NW 77.)
iv) under the pervasive criminal law principle of liberal construction of
penal statutes in favor of the accused the conclusion is evident that
the exception clause to the prescriptive rule in Article 91 of the
Revised Penal Code should not be unduly stretched and strained to
include exceptions not specified nor as much intimitated in the
statute.
U.S. vs. Abad Santos, 36 Phil 243:
Criminal statutes are to be strictly construed no persons should be
brought within the terms who is not clearly within them nor should any
act be pronounced criminal when it is not made so.
v) extinctive or acquisitive prescription is not similar to reglementary
periods provided in the Rules of Court or in any other statutes, hence,
may not be extended under the "next business day theory". Thus, it
cannot be said under our system that a party has a right to move, and
the court the corresponding authority to grant an extension of a
period of prescription.
As against these arguments of the petitioner-appellant, the respondents cite the following provision
of the Revised Administrative Code to sustain their side:
SEC. 31. Pretermission of holiday.- where the day, or the last day, for doing any act
required or permitted by law falls on a holiday, the act may be done on the next
succeeding business day.
The law requires or permits the filing of the information within two months or sixty days from the date
the crime was discovered by the offended party. Since the 60th day or last day for the filing of the
information in this case fell on a holiday, according to the respondents-appellees the law should
allow the filing of charges to be done on the next succeeding business day.
If we follow the ordinary rule of time computation based on the common law, which, in construing
statutes of limitations excludes the first day and includes the last day unless the last day is dies
non in which event the following day is included, the stand of the respondents-appellees would be
correct.
As pointed out by the respondents-appellees, Section 1, Rule 28 of the former Rules of Court
provided:
xxx xxx xxx

How to compute timeIn computing any period of time prescribed or allowed by


these rules, by order of court, or by any applicable statute, the day of the act, event,
or default after which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included, unless it is a
Sunday or a legal holiday, in which event the time shall run until the end of the next
day which is neither a Sunday nor a holiday.
After carefully considering all the foregoing, we find the arguments of the petitioners-appellants
meritorious. We are not dealing in this case with a simple rule on when a pleading may be filed.
The case at hand does not involve the simple issue of when to do an act. It deals with the
prescription of a criminal action. Under unquestioned authorities, the question to be resolved is when
the State is deemed to have lost or waived its right to prosecute an act prohibited and punished by
law. (People v. Moran, 44 Phil. 387, 406-7; People v. Parel 44 Phil. 437, 445; People v. Montenegro,
68 Phil. 659). Wharton, in his work on Criminal Pleading and Practice, quoted in People U. Moran
has this to say about the nature of the statute of limitations in criminal actions:
We should at first observe that a mistake is sometimes made in applying to statutes
of limitation in criminal suits the construction that has been given to statutes of
lirmitation in civil suits. The two classes of statutes, however, are essentially
different. In civil suits the statute is interposed by the legislature as an impartial
arbiter between two contending parties. In the construction of the statute, therefore,
there is no intendment to be made in favor of either party. Neither grants the right to
the other; there is therefore no grantor against whom the ordinary presumptions of
construction are to be made. But it is otherwise when a statute of limitation is granted
by the State. Here the State is the grantor, surrendering by act of grace its rights to
prosecute, and declaring the offense to be no longer the subject of prosecution. The
statute is not a statute of process, to be scantily and grudgingly applied, but an
amnesty, declaring that after a certain time oblivion shall be cast over the offense;
that the offender shall be at liberty to return to his country, and resume his immunities
as a citizen; and that from henceforth he may cease to preserve the proofs of his
innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of
limitation are to be liberally construed in favor of the defendant not one because
such liberality of construction belongs to all acts of amnesty and grace, but because
the very existence of the statute is a recognition and notification by the legislature of
the fact that time, while it gradually wears out proofs and innocence has assigned to
it fixed and positive periods in which it destroys proofs of guilt. Independently of
these views, it must be remembered that delay in instituting prosecutions is not only
productive of expense to the State, but of peril to public justice in the attenuation and
distortion, even by mere natural lapse of memory, of testimony. It is the policy of the
law that prosecutions should be prompt and that statutes enforcing such promptitude
should be vigorously maintained. They are not merely acts of grace, but checks
imposed by the State upon itself, to exact vigilant activity from its subalterns and to
secure for criminal trials the best evidence that can be obtained. (44 Phil. 405-406;
emphasis supplied).

The rules contained in Section 31 of the Revised Administrative Code and Section 1, Rule 28 of the
Old Rules of Court deal with the computation of time allowed to do a particular act, such as, the filing
of tax returns on or before a definite date, filing an answer to a complaint, taking an appeal, etc.
They do not apply to lengthen the period fixed by the State for it to prosecute those who committed a
crime against it. The waiver or loss of the right to prosecute such offenders is automatic and by
operation of law. Where the sixtieth and last day to file an information falls on a Sunday or legal
holiday, the sixty-day period cannot be extended up to the next working day. Prescription has
automatically set in. The remedy is for the fiscal or prosecution to file the information on the last
working day before the criminal offense prescribes.
WHEREFORE, the petition for certiorari and mandamus is granted. The questioned order of the
respondent court is SET ASIDE. The motion to quash is GRANTED and the information before the
city court is DISMISSED.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Vasquez, JJ., concur.

Separate Opinions

RELOVA, J., dissenting:


I dissent. Sec. 31 of the Revised Administrative Code provides that "where the day, or the last day,
for doing an act required or permitted by law falls on a holiday, the act may be done on the next
succeeding day." In the case at bar, since the last day within which to file the complaint or
information in court fell on a Sunday, the filing thereof may be done on the next succeeding business
day.

Separate Opinions
RELOVA, J., dissenting:
I dissent. Sec. 31 of the Revised Administrative Code provides that "where the day, or the last day,
for doing an act required or permitted by law falls on a holiday, the act may be done on the next

succeeding day." In the case at bar, since the last day within which to tfile the complaint or
information in court fell on a Sunday, the filing thereof may be done on the next succeeding business
day.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-37652 December 26, 1984

VIRGINIA B. PRADO, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and THE HON. RAFAEL SISON, Presiding Judge of the
Court of First Instance of Manila, Branch XXVII, respondents.

MELENCIO-HERRERA, J.:

Whether or not a pending civil suit for annulment of marriage constitutes a


prejudicial question in a Bigamy Case is the issue involved in this Petition for
certiorari & Prohibition.

On August 5, 1971, an Information was filed with the then Court of First Instance of
Manila, Branch XXVII, docketed as Criminal Case No. 5877 (the Bigamy Case)

charging petitioner Virginia B. Prado with the crime of Bigamy, committed as


follows:

That on or about the 17th day of October 1969, in Saigon, South Vietnam, at the
Philippine Embassy which is an extension of Philippine Sovereignty and therefore
within the jurisdiction of this Honorable Court, the said accused, having been
previously legally united in wedlock with one Arturo R. Espiritu without said
marriage having been legally dissolved, did then and there willfully, unlawfully and
feloniously contract, a subsequent and second marriage with one Julio Manalansang.

Contrary to law. 1

Petitioner moved to dismiss the case on the ground that Philippine Courts have no
jurisdiction over the marriage solemnized in Saigon, as it is outside Philippine
territory and the case does not fall under any of the exceptions enumerated in
Article 2 of the Revised Penal Code, which allow enforcement of criminal laws
outside the Philippine Archipelago. 2 Opposition based on the principle of
extraterritoriality was filed by the prosecution. Dismissal was denied by the Trial
Court, which Order was assailed by petitioner in a Petition for certiorari and
Prohibition filed with this Court in G.R. No. L-36344. 3 We resolved to dismiss the
same "for being premature, an appeal by way of review on certiorari in due course
being the proper remedy. 4

On July 21, 1973, petitioner filed with the Court of First Instance of Rizal, an action
for annulment of her Saigon marriage (Civil Case No. C-2894) contending that her
consent thereto was obtained by means of force and intimidation, and that she
never freely cohabited with her second husband, Julio Manalansang. The case was
subsequently transferred to the Juvenile and Domestic Relations Court, Caloocan
City, docketed as Family Case No. 029.

On July 23, 1973, a "Motion to Suspend Trial by Reason of the Existence of


Prejudicial Question" was filed by petitioner in the Bigamy Case. The prosecution
opposed the same maintaining that it was merely a device resorted to by petitioner
to delay the disposition of said criminal case.

Respondent Court denied suspension of trial. Petitioner moved for reconsideration


reiterating her argument that a prejudicial question exists, which must first be
resolved as the same would be determinative of her guilt or innocence.
Reconsideration was denied on September 19, 1973, the Trial Court ruling that the
Motion to Suspend was only a scheme to unduly delay the hearing of the case.
Thus, this Petition for certiorari and Prohibition seeking the annulment of said Order.

On November 16, 1973, respondent Court, motu proprio, suspended the


proceedings in the Bigamy Case upon being informed of the pendency of the
present Petition before this Court. 5

For a civil action to be considered prejudicial to a criminal case as to cause the


suspension of the criminal proceedings until the final resolution of the civil, the
following requisites must be present: (1) the civil case involves facts intimately
related to those upon which the criminal prosecution would be based; (2) in the
resolution of the issue or issues raised in the civil action, the guilt or innocence of
the accused would necessarily be determined; and (3) jurisdiction to try said
question must be lodged in another tribunal. 6

The foregoing requisites being present in the case at bar, the suspensive effect of a
prejudicial question comes into play. The Solicitor General's opposition to the
suspension of trial in the Bigamy Case on the allegations that the civil action for
annulment was belatedly filed after petitioner had faced trial in the Bigamy Case
and only to stave off prosecution; that the grounds for annulment of her second
marriage are bereft of factual basis and truth in that petitioner would not have
waited for two (2) years from the filing of the bigamy charge, or for almost four (4)
years from the celebration of the second marriage, before filing the annulment case,
if she had valid grounds to annul the same; that she had freely cohabited with Julio
Manalansang for about six (6) months after their marriage; and that even her
mother was present during the marriage ceremony, are all defenses which may be
raised in the Annulment Case, and which must still be proved. Should petitioner be
able to establish that her consent to the second marriage was, indeed, obtained by
means of force and intimidation, her act of entering into marriage with Julio
Manalansang would be involuntary, and there can be no conviction for the crime of
Bigamy.

And while it may be, as contended by the Solicitor General, that the mere filing of
an Annulment Case does not automatically give rise to a prejudicial question as to

bar trial of a Bigamy Case, considering the gravity of the charge, petitioner cannot
be deprived of her right to prove her grounds for annulment, which could wen be
determinative of her guilt or innocence. The State is not thereby deprived from
proceeding with the criminal case in the event that the Court decrees against
petitioner in the Annulment Case.

WHEREFORE, the assailed order of September 19, 1973 is hereby set aside. As the
proceedings in Criminal Case No. 5877 had already been suspended, the same shall
be resumed by the proper Regional Trial Court upon the final determination of
Family Case No. 029 of the former Juvenile and Domestic Relations Court, Caloocan
City, if the same has not yet been terminated, and if the Decision in the latter case
should so warrant.

SO ORDERED.

Plana and De la Fuente, JJ., concur.

Teehankee (Chairman), in the result.

Relova and Gutierrez, Jr., JJ., took no part.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private respondent
is a citizen of the United States; that they were married in Hongkong in 1972; that, after the
marriage, they established their residence in the Philippines; that they begot two children born on
April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United
States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private respondent be declared with right
to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause
of action is barred by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground
that the property involved is located in the Philippines so that the Divorce Decree has no bearing in
the case. The denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in
a certiorari proceeding to exercise its supervisory authority and to correct the error committed which,
in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be
useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this
case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over
private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground
of incompatibility in the understanding that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of
KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear
on my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public police and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court
of competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a

penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.


PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.


Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.
1wph1.t

The facts of the case are as follows:


Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after
all taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.
1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition,

the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided
the residuary estate into seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions
to the project of partition on the ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi.
As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article
16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose

succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16
a specific provision in itself which must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For
it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code
states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-16759

August 31, 1966

RAFAEL MORALES, petitioner,


vs.
COLLECTOR OF INTERNAL REVENUE, respondent.

Rafael Morales and Enrico T. de la Cruz for petitioner.


Assistant Solicitor General J. P. Alejandro and J. M. Maza for respondent.

MAKALINTAL, J.:

Appeal from an order of the Court of Tax Appeals dismissing appellant's petition for
review of the decision of respondent Collector (now Commissioner)of Internal
Revenue.

In compliance with Section 92 of the National Internal Revenue Code, petitioner, on


December 27, 1950, informed respondent that his wife Belen Lansangan had died
the previous November 1, leaving real and personal properties. On April 28, 1951

petitioner filed with the Bureau of Internal Revenue a copy of the deed of
extrajudicial partition which he and his two daughters had executed. On April 20,
1951 respondent issued a notice tentatively assessing the estate tax at P1,272.53
and the inheritance tax at P1,404.85. Said sums were paid by petitioner.

On May 14, 1956 respondent issued a new assessment for P641.39 and P631.60 as
deficiency estate and inheritance taxes, respectively, with interest in both
instances, or a total of P1,272.99; and on October 11, 1956 respondent asked
petitioner to pay the amount within ten days. On October 15, 1956 petitioner
addressed a letter to respondent, contending that under Section 331 of the Internal
Revenue Code reassessment of the taxes had already prescribed, because more
than five years had elapsed since the submission of the deed of extrajudicial
partition on which the original assessments were based.

On December 28, 1956 respondent rejected the claim of prescription and reiterated
his demand for payment. A reminder was sent to petitioner on March 26, 1958, with
the warning that after five days summary remedies provided by law for the
collection of the taxes would be resorted to.

On October 14, 1958 respondent served on petitioner a warrant of distraint and


levy, with the corresponding notices of seizure and sale. The sale of the distrained
properties was scheduled to be held on December 15, 1958.

On November 17, 1958 petitioner requested the cancellation of the warrant of


distraint and levy, but respondent denied the request on December 5, 1958.

On December 8, 1958 petitioner filed with the Court of Tax Appeals a "petition for
review," stating therein that it was "an appeal from the decision of the respondent,
as contained in his letter dated December 5, 1958."

On December 18, 1959 the Tax Court, finding that what was properly appealable to
it was respondent's letter-decision of December 28, 1956 and not that of December
5, 1958, ruled that the appeal was filed out of time and so dismissed the petition
motu proprio. This is the ruling that is now before Us for review.

Petitioner assails the ruling as erroneous and points out that in his petition for
review before the Court of Tax Appeals he specifically stated that respondent's letter
of December 5, 1958 was the decision he was appealing from, and therefore his
petition, filed only three days later, was timely.1wph1.t

We do not consider said statement made by petitioner in his petition as decisive.


The pivotal question is, on what particular issue decided by respondent did
petitioner seek a review in the Court of Tax Appeals?

The allegations in the petition filed in said Court are clear: that the warrant of
distraint and levy as well as the notices of seizure and sale issued by respondent
were null and void because the deficiency estate and inheritance tax assessments
on which they were based, both dated May 14, 1956, were issued more than five
years after petitioner filed his tax return on April 28, 1951 (presumably referring to
the deed of extrajudicial partition on which the original assessments were based).

This question of prescription was the same one raised by petitioner in his letter to
respondent of October 15, 1956, wherein he said that a reassessment of his tax
liability was no longer feasible by reason of the lapsed of the five-year period. It was
the question that respondent decided in his reply-letter to petitioner dated
December 28, 1956, rejecting the latter's plea on the ground that the law applicable
was not Section 331 but rather Section 332 (a) of the Tax Code,1 which fixes a tenyear prescriptive period, no tax return having filed by petitioner in this case. In
other words, it was the very question decided by respondent on December 28, 1956
that petitioner sought to present to the Court of Tax Appeals in his petition for
review, the decision being then properly appealable because it was on a "disputed
assessment" within the meaning of Section 7 (par. 1) of Republic Act No. 1125
(creating the Court of Tax Appeals), which states that this Court "shall exercise
exclusive appellate jurisdiction to review by appeal ... : (1) decisions of the Collector
of Internal Revenue in cases involving disputed assessments ... .

The Tax Court cited the case of St. Stephen's Association, et al., vs. The Collector of
Internal Revenue (G.R. No. L-11258, August 21, 1958), where We held that "when a
taxpayer questions an assessment and ask the Collector to reconsider or cancel the
same because he (the taxpayer) believes he is not liable therefor, the assessment
becomes a 'disputed assessment' that the Collector must decide." The citation, We
believe, is apropos: it is from such a decision of the Collector, which in this case was

rendered on December 28, 1956, that petitioner had the right to appeal, within
thirty (30) days after notice (Sec. 11, Republic Act No. 1125).

Petitioner claims that the St. Stephen's Association case does not apply here,
because precisely it was there held that of the two letters sent by the Collector of
Internal Revenue to the taxpayer denying cancellation of the disputed assessment it
was the second letter which was considered by this Court as the "appealable
decision." But it should be noted, that the ruling was based on a statement in that
second letter that "this decision becomes final thirty days after your receipt hereof
unless an appeal is taken to the Court of Tax Appeals within the same period, in
accordance with the provisions of Republic Act 1125." In other words, the Collector
himself indicated to the taxpayer what he considered as his final decision, prior to
which, in the language of this Court, he "must have held the matter under
advisement and considered his preceding rulings as merely tentative in character,
pending his final determination and resolution of the merits of the arguments of fact
and law submitted by petitioners in support of their requests for the cancellation
and withdrawal of the assessment."

In the present case, the letter of December 8, 1956 had the tenor of finality. After
disposing of petitioner's claim of prescription, it required him to pay not later than
January 19, 1957. This insistence on payment indicated unequivocally a denial of
the plea for cancellation of the assessment (Republic v. Lim Tian Teng Sons & Co.,
Inc., L-21731, March 31, 1966). Thus when respondent subsequently wrote to
petitioner again on March 25, 1958, he was already threatening to employ summary
methods of collection, as in fact he did later on. Respondent's letter of December 5,
1958 was not a decision on a disputed assessment but referred merely to the
manner of its collection that is, by distraint and levy, as to which the question of
prescription is not at all relevant.

Petitioner says there is no proof as to when he received the letter-decision of


December 28, 1956. But it cannot be denied that he did receive it. While in his
memorandum he raises a doubt on the point, in his brief he impliedly admits such
receipt by alleging that he chose to ignore said letter and "to treat it as an
innocuous demand." At any rate, on March 25, 1958 petitioner personally received
respondent's letter of the same date, making reference to the demand for payment
contained in the letter of December 28, 1956. Consequently, even if only the receipt
of the second letter be considered as notice of the decision, the petition for review
filed in the Court of Tax Appeals on December 8, 1958 was still out of time.

Finally, since petitioner insists that he is not appealing from the decision of
December 28, 1956, the same has become final and unappealable (Uy Ham v.
Republic, L-13809, October 20, 1959; Republic v. Del Rosario, L-10460, March 11,
1959; Republic v. Manila Port Service, L-18028, November 27, 1964) and the matter
resolved therein, that is, whether or not the deficiency assessments against him
were barred by prescription, could no longer be reopened through the expedient of
an appeal from the denial of petitioner's request for cancellation of the warrant of
distraint and levy.

The decision of the Court of Tax Appeals is affirmed, with costs against petitioner.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar, Sanchez and
Castro, JJ., concur.
Regala, J., took no part.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 138322

October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,


vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and
the national law of the alien must be alleged and proven according to our law on evidence.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January
7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City,
Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A.
Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties
can now remarry under existing and applicable laws to any and/or both parties." 3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989, 5 a
decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government. 6 Petitioner a Filipina and respondent were
married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In
their application for a marriage license, respondent was declared as "single" and "Filipino." 8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided
on May 16, 1996, in accordance with their Statutory Declarations secured in Australia. 9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage 10 in the court a
quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha
Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage andits subsequent dissolution.11 He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in 1989; 12 thus, he was legally
capacitated to marry petitioner in 1994.
1wphi1.nt

On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration
of nullity was pending respondent was able to secure a divorce decree from a family court in
Sydney, Australia because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no
cause of action.14 The Office of the Solicitor General agreed with respondent. 15 The court marked and
admitted the documentary evidence of both parties.16 After they submitted their respective
memoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court


The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating
him to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and
53 of the Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that
the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties
to remarry, without first securing a recognition of the judgment granting the divorce decree
before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.

The Court's Ruling


The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that
respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity
of the marriage in question to the legal requirements of the place where the marriage was
performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. 21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles
1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of
the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to remarry." 26 A divorce obtained abroad
by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with
their respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law." 28 Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it. 29 Presentation solely of
the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with
the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:

xxx

xxx

xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
xxx

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of
annulment or declaration of nullity of his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document a
written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in evidence. 30 A divorce obtained abroad
is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment
itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a
foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued
by an Australian family court.35 However, appearance is not sufficient; compliance with the
aforemetioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was
admissible, subject to petitioner's qualification.37Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent
was no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former
states, don the attires of their adoptive countries. By becoming an Australian, respondent severed
his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because
she is the party challenging the validity of a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a long time. Besides, the Australian
divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign
laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden
of proving the material allegations of the complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations in their answer when they introduce
new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 43 Like
any other facts, they must be alleged and proved. Australian marital laws are not among those
matters that judges are supposed to know by reason of their judicial function. 44 The power of judicial
notice must be exercised with caution, and every reasonable doubt upon the subject should be
resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of
a lawful union for a cause arising after marriage. But divorces are of different types. The two basic
ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro.
The first kind terminates the marriage, while the second suspends it and leaves the bond in full
force.45 There is no showing in the case at bar which type of divorce was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree a conditional or provisional


judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is
effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices,
still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus,
the guilty party in a divorce which was granted on the ground of adultery may be prohibited from
remarrying again. The court may allow a remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of
evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for
the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was
not submitted together with the application for a marriage license. According to her, its absence is
proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part
of the alien applicant for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint; 51 (b) Exhibit "B"
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino)
on January 12, 1994 in Cabanatuan City, Nueva Ecija; 52(c) Exhibit "C" Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in
Malabon, Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A. Recto and Editha D. Samson

was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship of Rederick A.
Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975
Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" Certificate of
Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage
in the Family Court of Australia Certificate;59 and Exhibit "5" Statutory Declaration of the Legal
Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995. 60
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to
show the Australian personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to
marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any, which show petitioner's
legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the
parties' marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March
1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to
the court a quo for the purpose of receiving evidence which conclusively show respondent's legal
capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground
of bigamy, as above discussed. No costs.
SO ORDERED.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.

FIRST DIVISION
[G.R. No. 124371. November 23, 2000]

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE,


respondents.
DECISION

PARDO, J.:

The Case

The case raises a conflict of laws issue.

What is before us is an appeal from the decision of the Court of Appeals[1]


modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City[2]
declaring respondent Alicia F. Llorente (herinafter referred to as Alicia), as coowners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter
referred to as Lorenzo) may have acquired during the twenty-five (25) years that
they lived together as husband and wife.

The Facts

The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States
Navy from March 10, 1927 to September 30, 1957.[3]

On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to
as Paula) were married before a parish priest, Roman Catholic Church, in Nabua,
Camarines Sur.[4]

Before the outbreak of the Pacific War, Lorenzo departed for the United States and
Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.[5]

On November 30, 1943, Lorenzo was admitted to United States citizenship and
Certificate of Naturalization No. 5579816 was issued in his favor by the United
States District Court, Southern District of New York.[6]

Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was
granted an accrued leave by the U. S. Navy, to visit his wife and he visited the

Philippines.[7] He discovered that his wife Paula was pregnant and was living in
and having an adulterous relationship with his brother, Ceferino Llorente.[8]

On December 4, 1945, Paula gave birth to a boy registered in the Office of the
Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child
was not legitimate and the line for the fathers name was left blank.[9]

Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the
couple drew a written agreement to the effect that (1) all the family allowances
allotted by the United States Navy as part of Lorenzos salary and all other
obligations for Paulas daily maintenance and support would be suspended; (2) they
would dissolve their marital union in accordance with judicial proceedings; (3) they
would make a separate agreement regarding their conjugal property acquired
during their marital life; and (4) Lorenzo would not prosecute Paula for her
adulterous act since she voluntarily admitted her fault and agreed to separate from
Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was
witnessed by Paulas father and stepmother. The agreement was notarized by
Notary Public Pedro Osabel.[10]

Lorenzo returned to the United States and on November 16, 1951 filed for divorce
with the Superior Court of the State of California in and for the County of San
Diego. Paula was represented by counsel, John Riley, and actively participated in
the proceedings. On November 27, 1951, the Superior Court of the State of
California, for the County of San Diego found all factual allegations to be true and
issued an interlocutory judgment of divorce.[11]

On December 4, 1952, the divorce decree became final.[12]

In the meantime, Lorenzo returned to the Philippines.

On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.[13] Apparently,


Alicia had no knowledge of the first marriage even if they resided in the same town
as Paula, who did not oppose the marriage or cohabitation.[14]

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.[15] Their
twenty-five (25) year union produced three children, Raul, Luz and Beverly, all
surnamed Llorente.[16]

On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was
notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will,
Lorenzo bequeathed all his property to Alicia and their three children, to wit:

(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential


house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines,
including ALL the personal properties and other movables or belongings that may
be found or existing therein;

(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children,
Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real
properties whatsoever and wheresoever located, specifically my real properties
located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua,
Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay
Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;

(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto
my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares,
my real properties located in Quezon City Philippines, and covered by Transfer
Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered
by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of
Deeds of the province of Rizal, Philippines;

(4) That their respective shares in the above-mentioned properties, whether real or
personal properties, shall not be disposed of, ceded, sold and conveyed to any other
persons, but could only be sold, ceded, conveyed and disposed of by and among
themselves;

(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last
Will and Testament, and in her default or incapacity of the latter to act, any of my
children in the order of age, if of age;

(6) I hereby direct that the executor named herein or her lawful substitute should
served (sic) without bond;

(7) I hereby revoke any and all my other wills, codicils, or testamentary
dispositions heretofore executed, signed, or published, by me;

(8) It is my final wish and desire that if I die, no relatives of mine in any degree in
the Llorentes Side should ever bother and disturb in any manner whatsoever my
wife Alicia R. Fortunato and my children with respect to any real or personal
properties I gave and bequeathed respectively to each one of them by virtue of this
Last Will and Testament.[17]

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines
Sur, a petition for the probate and allowance of his last will and testament wherein
Lorenzo moved that Alicia be appointed Special Administratrix of his estate.[18]

On January 18, 1984, the trial court denied the motion for the reason that the
testator Lorenzo was still alive.[19]

On January 24, 1984, finding that the will was duly executed, the trial court
admitted the will to probate.[20]

On June 11, 1985, before the proceedings could be terminated, Lorenzo died.[21]

On September 4, 1985, Paula filed with the same court a petition[22] for letters of
administration over Lorenzos estate in her favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in the conjugal property.[23]

On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755),
a petition for the issuance of letters testamentary.[24]

On October 14, 1985, without terminating the testate proceedings, the trial court
gave due course to Paulas petition in Sp. Proc. No. IR-888.[25]

On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol
Star.[26]

On May 18, 1987, the Regional Trial Court issued a joint decision, thus:

Wherefore, considering that this court has so found that the divorce decree
granted to the late Lorenzo Llorente is void and inapplicable in the Philippines,
therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at
Manila is likewise void. This being so the petition of Alicia F. Llorente for the
issuance of letters testamentary is denied. Likewise, she is not entitled to receive
any share from the estate even if the will especially said so her relationship with
Lorenzo having gained the status of paramour which is under Art. 739 (1).

On the other hand, the court finds the petition of Paula Titular Llorente,
meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente
dated March 13, 1981 as void and declares her entitled as conjugal partner and
entitled to one-half of their conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the estate and then one-third should
go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for
them to partition in equal shares and also entitled to the remaining free portion in
equal shares.

Petitioner, Paula Llorente is appointed legal administrator of the estate of the


deceased, Lorenzo Llorente. As such let the corresponding letters of administration
issue in her favor upon her filing a bond in the amount (sic) of P100,000.00
conditioned for her to make a return to the court within three (3) months a true and
complete inventory of all goods, chattels, rights, and credits, and estate which shall
at any time come to her possession or to the possession of any other person for her,
and from the proceeds to pay and discharge all debts, legacies and charges on the
same, or such dividends thereon as shall be decreed or required by this court; to

render a true and just account of her administration to the court within one (1) year,
and at any other time when required by the court and to perform all orders of this
court by her to be performed.

On the other matters prayed for in respective petitions for want of evidence could
not be granted.

SO ORDERED.[27]

In time, Alicia filed with the trial court a motion for reconsideration of the
aforequoted decision.[28]

On September 14, 1987, the trial court denied Alicias motion for reconsideration
but modified its earlier decision, stating that Raul and Luz Llorente are not children
legitimate or otherwise of Lorenzo since they were not legally adopted by him.
[29] Amending its decision of May 18, 1987, the trial court declared Beverly Llorente
as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate
and one-third (1/3) of the free portion of the estate.[30]

On September 28, 1987, respondent appealed to the Court of Appeals.[31]

On July 31, 1995, the Court of Appeals promulgated its decision, affirming with
modification the decision of the trial court in this wise:

WHEREFORE, the decision appealed from is hereby AFFIRMED with the


MODIFICATION that Alicia is declared as co-owner of whatever properties she and
the deceased may have acquired during the twenty-five (25) years of cohabitation.

SO ORDERED.[32]

On August 25, 1995, petitioner filed with the Court of Appeals a motion for
reconsideration of the decision.[33]

On March 21, 1996, the Court of Appeals,[34] denied the motion for lack of merit.

Hence, this petition.[35]

The Issue

Stripping the petition of its legalese and sorting through the various arguments
raised,[36] the issue is simple. Who are entitled to inherit from the late Lorenzo N.
Llorente?

We do not agree with the decision of the Court of Appeals. We remand the case to
the trial court for ruling on the intrinsic validity of the will of the deceased.

The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before
and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of
his will; and (4) death, is duly established, admitted and undisputed.

Thus, as a rule, issues arising from these incidents are necessarily governed by
foreign law.

The Civil Code clearly provides:

Art. 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad.

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary succession, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (emphasis ours)

True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged
and proved.[37]

While the substance of the foreign law was pleaded, the Court of Appeals did not
admit the foreign law. The Court of Appeals and the trial court called to the fore the
renvoi doctrine, where the case was referred back to the law of the decedents
domicile, in this case, Philippine law.

We note that while the trial court stated that the law of New York was not
sufficiently proven, in the same breath it made the categorical, albeit equally
unproven statement that American law follows the domiciliary theory hence,
Philippine law applies when determining the validity of Lorenzos will.[38]

First, there is no such thing as one American law. The "national law" indicated in
Article 16 of the Civil Code cannot possibly apply to general American law. There is
no such law governing the validity of testamentary provisions in the United States.
Each State of the union has its own law applicable to its citizens and in force only
within the State. It can therefore refer to no other than the law of the State of which
the decedent was a resident.[39] Second, there is no showing that the application of
the renvoi doctrine is called for or required by New York State law.

The trial court held that the will was intrinsically invalid since it contained
dispositions in favor of Alice, who in the trial courts opinion was a mere paramour.

The trial court threw the will out, leaving Alice, and her two children, Raul and Luz,
with nothing.

The Court of Appeals also disregarded the will. It declared Alice entitled to one half
(1/2) of whatever property she and Lorenzo acquired during their cohabitation,
applying Article 144 of the Civil Code of the Philippines.

The hasty application of Philippine law and the complete disregard of the will,
already probated as duly executed in accordance with the formalities of Philippine
law, is fatal, especially in light of the factual and legal circumstances here obtaining.

Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr.[40] we held that owing to the nationality principle
embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being considered contrary to our concept
of public policy and morality. In the same case, the Court ruled that aliens may
obtain divorces abroad, provided they are valid according to their national law.

Citing this landmark case, the Court held in Quita v. Court of Appeals,[41] that once
proven that respondent was no longer a Filipino citizen when he obtained the
divorce from petitioner, the ruling in Van Dorn would become applicable and
petitioner could very well lose her right to inherit from him.

In Pilapil v. Ibay-Somera,[42] we recognized the divorce obtained by the respondent


in his country, the Federal Republic of Germany. There, we stated that divorce and
its legal effects may be recognized in the Philippines insofar as respondent is
concerned in view of the nationality principle in our civil law on the status of
persons.

For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed.[43] We hold that the divorce obtained by Lorenzo H. Llorente from his first
wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now,

the effects of this divorce (as to the succession to the estate of the decedent) are
matters best left to the determination of the trial court.

Validity of the Will

The Civil Code provides:

Art. 17. The forms and solemnities of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials
of the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution. (underscoring ours)

The clear intent of Lorenzo to bequeath his property to his second wife and children
by her is glaringly shown in the will he executed. We do not wish to frustrate his
wishes, since he was a foreigner, not covered by our laws on family rights and
duties, status, condition and legal capacity.[44]

Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues
best proved by foreign law which must be pleaded and proved. Whether the will
was executed in accordance with the formalities required is answered by referring to
Philippine law. In fact, the will was duly probated.

As a guide however, the trial court should note that whatever public policy or good
customs may be involved in our system of legitimes, Congress did not intend to
extend the same to the succession of foreign nationals. Congress specifically left
the amount of successional rights to the decedent's national law.[45]

Having thus ruled, we find it unnecessary to pass upon the other issues raised.

The Fallo

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CAG. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE.

In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of divorce granted in favor of the deceased
Lorenzo N. Llorente by the Superior Court of the State of California in and for the
County of San Diego, made final on December 4, 1952.

Further, the Court REMANDS the cases to the court of origin for determination of the
intrinsic validity of Lorenzo N. Llorentes will and determination of the parties
successional rights allowing proof of foreign law with instructions that the trial court
shall proceed with all deliberate dispatch to settle the estate of the deceased within
the framework of the Rules of Court.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

THIRD DIVISION
KAZUHIRO HASEGAWA and NIPPON
ENGINEERING CONSULTANTS CO.,
LTD.,
Petitioners,

G.R. No. 149177


Present:
YNARES-SANTIAGO, J.,
Chairperson,

AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

- versus -

Promulgated:
MINORU KITAMURA,
Respondent.

November 23, 2007

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the April 18, 2001 Decision[1] of the Court of Appeals
(CA) in CA-G.R. SP No. 60827, and the July 25, 2001 Resolution [2] denying the
motion for reconsideration thereof.
On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd.
(Nippon), a Japanese consultancy firm providing technical and management
support in the infrastructure projects of foreign governments, [3] entered into an
Independent Contractor Agreement (ICA) with respondent Minoru Kitamura, a
Japanese national permanently residing in the Philippines.[4] The agreement
provides that respondent was to extend professional services to Nippon for a year
starting on April 1, 1999.[5] Nippon then assigned respondent to work as the
project manager of the Southern Tagalog Access Road (STAR) Project in
the Philippines, following the company's consultancy contract with the Philippine
Government.[6]
When the STAR Project was near completion, the Department of Public
Works and Highways (DPWH) engaged the consultancy services of Nippon,

on January 28, 2000, this time for the detailed engineering and construction
supervision of the Bongabon-Baler Road Improvement (BBRI) Project.
[7]
Respondent was named as the project manager in the contract's Appendix 3.1.[8]
On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general
manager for its International Division, informed respondent that the company had
no more intention of automatically renewing his ICA. His services would be
engaged by the company only up to the substantial completion of the STAR Project
on March 31, 2000, just in time for the ICA's expiry.[9]
Threatened with impending unemployment, respondent, through his lawyer,
requested a negotiation conference and demanded that he be assigned to the BBRI
project.Nippon insisted that respondents contract was for a fixed term that had
already expired, and refused to negotiate for the renewal of the ICA.[10]
As he was not able to generate a positive response from the petitioners,
respondent consequently initiated on June 1, 2000 Civil Case No. 00-0264 for
specific performance and damages with the Regional Trial Court of Lipa City.[11]
For their part, petitioners, contending that the ICA had been perfected
in Japan and executed by and between Japanese nationals, moved to dismiss the
complaint for lack of jurisdiction. They asserted that the claim for improper pretermination of respondent's ICA could only be heard and ventilated in the proper
courts of Japan following the principles of lex loci celebrationis and lex contractus.
[12]

In the meantime, on June 20, 2000, the DPWH approved Nippon's request
for the replacement of Kitamura by a certain Y. Kotake as project manager of the
BBRI Project.[13]
On June 29, 2000, the RTC, invoking our ruling in Insular Government v.
Frank that matters connected with the performance of contracts are regulated by
the law prevailing at the place of performance, [15] denied the motion to dismiss.
[16]
The trial court subsequently denied petitioners' motion for reconsideration,
[17]
prompting them to file with the appellate court, on August 14, 2000,
their first Petition for Certiorari under Rule 65 [docketed as CA-G.R. SP No.
[14]

60205].[18] On August 23, 2000, the CA resolved to dismiss the petition on


procedural groundsfor lack of statement of material dates and for insufficient
verification and certification against forum shopping.[19] An Entry of Judgment was
later issued by the appellate court on September 20, 2000.[20]
Aggrieved by this development, petitioners filed with the CA, on September
19, 2000, still within the reglementary period, a second Petition
for Certiorari under Rule 65 already stating therein the material dates and
attaching thereto the proper verification and certification. This second petition,
which substantially raised the same issues as those in the first, was docketed as
CA-G.R. SP No. 60827.[21]
Ruling on the merits of the second petition, the appellate court rendered the
assailed April 18, 2001 Decision[22] finding no grave abuse of discretion in the trial
court's denial of the motion to dismiss. The CA ruled, among others, that the
principle of lex loci celebrationis was not applicable to the case, because nowhere
in the pleadings was the validity of the written agreement put in issue. The CA thus
declared that the trial court was correct in applying instead the principle of lex loci
solutionis.[23]
Petitioners' motion for reconsideration was subsequently denied by the CA in
the assailed July 25, 2001 Resolution.[24]
Remaining steadfast in their stance despite the series of denials, petitioners
instituted the instant Petition for Review on Certiorari[25] imputing the following
errors to the appellate court:
A.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
IN FINDING THAT THE TRIAL COURT VALIDLY EXERCISED
JURISDICTION OVER THE INSTANT CONTROVERSY, DESPITE
THE FACT THAT THE CONTRACT SUBJECT MATTER OF THE
PROCEEDINGS A QUO WAS ENTERED INTO BY AND BETWEEN
TWO JAPANESE NATIONALS, WRITTEN WHOLLY IN THE
JAPANESE LANGUAGE AND EXECUTED IN TOKYO, JAPAN.
B.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN OVERLOOKING THE NEED TO REVIEW OUR

ADHERENCE TO THE PRINCIPLE OF LEX LOCI SOLUTIONISIN


THE LIGHT OF RECENT DEVELOPMENT[S] IN PRIVATE
INTERNATIONAL LAWS.[26]

The pivotal question that this Court is called upon to resolve is whether the
subject matter jurisdiction of Philippine courts in civil cases for specific
performance and damages involving contracts executed outside the country by
foreign nationals may be assailed on the principles of lex loci celebrationis, lex
contractus, the state of the most significant relationship rule, or forum non
conveniens.
However, before ruling on this issue, we must first dispose of the procedural
matters raised by the respondent.
Kitamura contends that the finality of the appellate court's decision in CAG.R. SP No. 60205 has already barred the filing of the second petition docketed as
CA-G.R. SP No. 60827 (fundamentally raising the same issues as those in the first
one) and the instant petition for review thereof.
We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on account
of the petition's defective certification of non-forum shopping, it was a dismissal
without prejudice.[27] The same holds true in the CA's dismissal of the said case due
to defects in the formal requirement of verification [28] and in the other requirement
in Rule 46 of the Rules of Court on the statement of the material dates. [29] The
dismissal being without prejudice, petitioners can re-file the petition, or file a
second petition attaching thereto the appropriate verification and certification as
they, in fact didand stating therein the material dates, within the prescribed
period[30] in Section 4, Rule 65 of the said Rules.[31]
The dismissal of a case without prejudice signifies the absence of a decision
on the merits and leaves the parties free to litigate the matter in a subsequent action
as though the dismissed action had not been commenced. In other words, the
termination of a case not on the merits does not bar another action involving the
same parties, on the same subject matter and theory.[32]

Necessarily, because the said dismissal is without prejudice and has no res
judicata effect, and even if petitioners still indicated in the verification and
certification of the second certiorari petition that the first had already been
dismissed on procedural grounds,[33] petitioners are no longer required by the Rules
to indicate in their certification of non-forum shopping in the instant petition for
review of the second certiorari petition, the status of the aforesaid first petition
before the CA. In any case, an omission in the certificate of non-forum shopping
about any event that will not constitute res judicata and litis pendentia, as in the
present case, is not a fatal defect. It will not warrant thedismissal and nullification
of the entire proceedings, considering that the evils sought to be prevented by the
said certificate are no longer present.[34]
The Court also finds no merit in respondent's contention that petitioner
Hasegawa is only authorized to verify and certify, on behalf of Nippon,
the certiorari petition filed with the CA and not the instant petition. True, the
Authorization[35] dated September 4, 2000, which is attached to the
second certiorari petition and which is also attached to the instant petition for
review, is limited in scopeits wordings indicate that Hasegawa is given the
authority to sign for and act on behalf of the company only in the petition filed
with the appellate court, and that authority cannot extend to the instant petition for
review.[36] In a plethora of cases, however, this Court has liberally applied the Rules
or even suspended its application whenever a satisfactory explanation and a
subsequent fulfillment of the requirements have been made. [37] Given that
petitioners herein sufficiently explained their misgivings on this point and
appended to their Reply[38] an updated Authorization[39] for Hasegawa to act on
behalf of the company in the instant petition, the Court finds the same as sufficient
compliance with the Rules.
However, the Court cannot extend the same liberal treatment to the defect in
the verification and certification. As respondent pointed out, and to which we

agree, Hasegawa is truly not authorized to act on behalf of Nippon in this case. The
aforesaid September 4, 2000 Authorization and even the subsequent August 17,
2001 Authorization were issued only by Nippon's president and chief executive
officer, not by the company's board of directors. In not a few cases, we have ruled
that corporate powers are exercised by the board of directors; thus, no person, not
even its officers, can bind the corporation, in the absence of authority from the
board.[40] Considering that Hasegawa verified and certified the petition only on his
behalf and not on behalf of the other petitioner, the petition has to be denied
pursuant to Loquias v. Office of the Ombudsman.[41] Substantial compliance will not
suffice in a matter that demands strict observance of the Rules. [42] While technical
rules of procedure are designed not to frustrate the ends of justice, nonetheless,
they are intended to effect the proper and orderly disposition of cases and
effectively prevent the clogging of court dockets.[43]
Further, the Court has observed that petitioners incorrectly filed a Rule 65
petition to question the trial court's denial of their motion to dismiss. It is a wellestablished rule that an order denying a motion to dismiss is interlocutory,
and cannot be the subject of the extraordinary petition for certiorari or mandamus.
The appropriate recourse is to file an answer and to interpose as defenses the
objections raised in the motion, to proceed to trial, and, in case of an adverse
decision, to elevate the entire case by appeal in due course.[44] While there are
recognized exceptions to this rule,[45] petitioners' case does not fall among them.
This brings us to the discussion of the substantive issue of the case.
Asserting that the RTC of Lipa City is an inconvenient forum, petitioners
question its jurisdiction to hear and resolve the civil case for specific performance
and damages filed by the respondent. The ICA subject of the litigation was entered
into and perfected in Tokyo, Japan, by Japanese nationals, and written wholly in
the Japanese language. Thus, petitioners posit that local courts have no substantial

relationship to the parties[46] following the [state of the] most significant


relationship rule in Private International Law.[47]
The Court notes that petitioners adopted an additional but different theory
when they elevated the case to the appellate court. In the Motion to
Dismiss[48] filed with the trial court, petitioners never contended that the RTC is an
inconvenient forum. They merely argued that the applicable law which will
determine the validity or invalidity of respondent's claim is that of Japan, following
the principles of lex loci celebrationis and lex contractus.[49] While not abandoning
this stance in their petition before the appellate court, petitioners
on certiorari significantly invoked the defense of forum non conveniens.[50] On
petition for review before this Court, petitioners dropped their other arguments,
maintained the forum non conveniens defense, and introduced their new argument
that the applicable principle is the [state of the] most significant relationship rule.
[51]

Be that as it may, this Court is not inclined to deny this petition merely on
the basis of the change in theory, as explained in Philippine Ports Authority v. City
of Iloilo.[52]We only pointed out petitioners' inconstancy in their arguments to
emphasize their incorrect assertion of conflict of laws principles.
To elucidate, in the judicial resolution of conflicts problems, three
consecutive phases are involved: jurisdiction, choice of law, and recognition and
enforcement of judgments. Corresponding to these phases are the following
questions: (1) Where can or should litigation be initiated? (2) Which law will the
court apply? and (3) Where can the resulting judgment be enforced?[53]
Analytically, jurisdiction and choice of law are two distinct concepts.
[54]
Jurisdiction considers whether it is fair to cause a defendant to travel to this
state; choice of law asks the further question whether the application of a

substantive law which will determine the merits of the case is fair to both parties.
The power to exercise jurisdiction does not automatically give a state constitutional
authority to apply forum law. While jurisdiction and the choice of the lex fori will
often coincide, the minimum contacts for one do not always provide the
necessary significant contacts for the other.[55] The question of whether the law of
a state can be applied to a transaction is different from the question of whether the
courts of that state have jurisdiction to enter a judgment.[56]
In this case, only the first phase is at issuejurisdiction. Jurisdiction,
however, has various aspects. For a court to validly exercise its power to adjudicate
a controversy, it must have jurisdiction over the plaintiff or the petitioner, over the
defendant or the respondent, over the subject matter, over the issues of the case
and, in cases involving property, over the res or the thing which is the subject of
the litigation.[57] In assailing the trial court's jurisdiction herein, petitioners are
actually referring to subject matter jurisdiction.
Jurisdiction over the subject matter in a judicial proceeding is conferred by
the sovereign authority which establishes and organizes the court. It is given only
by law and in the manner prescribed by law.[58] It is further determined by the
allegations of the complaint irrespective of whether the plaintiff is entitled to all or
some of the claims asserted therein.[59] To succeed in its motion for the dismissal of
an action for lack of jurisdiction over the subject matter of the claim, [60] the movant
must show that the court or tribunal cannot act on the matter submitted to it
because no law grants it the power to adjudicate the claims.[61]
In the instant case, petitioners, in their motion to dismiss, do not claim that
the trial court is not properly vested by law with jurisdiction to hear the subject
controversy for, indeed, Civil Case No. 00-0264 for specific performance and
damages is one not capable of pecuniary estimation and is properly cognizable by
the RTC of Lipa City.[62]What they rather raise as grounds to question subject

matter jurisdiction are the principles of lex loci celebrationis and lex
contractus, and the state of the most significant relationship rule.
The Court finds the invocation of these grounds unsound.
Lex loci celebrationis relates to the law of the place of the ceremony [63] or
the law of the place where a contract is made. [64] The doctrine of lex
contractus or lex loci contractus means the law of the place where a contract is
executed or to be performed.[65] It controls the nature, construction, and validity of
the contract[66] and it may pertain to the law voluntarily agreed upon by the parties
or the law intended by them either expressly or implicitly.[67] Under the state of the
most significant relationship rule, to ascertain what state law to apply to a dispute,
the court should determine which state has the most substantial connection to the
occurrence and the parties. In a case involving a contract, the court should consider
where the contract was made, was negotiated, was to be performed, and the
domicile, place of business, or place of incorporation of the parties. [68] This rule
takes into account several contacts and evaluates them according to their relative
importance with respect to the particular issue to be resolved.[69]
Since these three principles in conflict of laws make reference to the law
applicable to a dispute, they are rules proper for the second phase, the choice of
law.[70] They determine which state's law is to be applied in resolving the
substantive issues of a conflicts problem. [71] Necessarily, as the only issue in this
case is that of jurisdiction, choice-of-law rules are not only inapplicable but also
not yet called for.
Further, petitioners' premature invocation of choice-of-law rules is exposed
by the fact that they have not yet pointed out any conflict between the laws
of Japan and ours. Before determining which law should apply, first there should
exist a conflict of laws situation requiring the application of the conflict of laws

rules.[72] Also, when the law of a foreign country is invoked to provide the proper
rules for the solution of a case, the existence of such law must be pleaded and
proved.[73]
It should be noted that when a conflicts case, one involving a foreign
element, is brought before a court or administrative agency, there are three
alternatives open to the latter in disposing of it: (1) dismiss the case, either because
of lack of jurisdiction or refusal to assume jurisdiction over the case; (2) assume
jurisdiction over the case and apply the internal law of the forum; or (3) assume
jurisdiction over the case and take into account or apply the law of some other
State or States.[74] The courts power to hear cases and controversies is derived
from the Constitution and the laws. While it may choose to recognize laws of
foreign nations, the court is not limited by foreign sovereign law short of treaties or
other formal agreements, even in matters regarding rights provided by foreign
sovereigns.[75]

Neither can the other ground raised, forum non conveniens,[76] be used to
deprive the trial court of its jurisdiction herein. First, it is not a proper basis for a
motion to dismiss because Section 1, Rule 16 of the Rules of Court does not
include it as a ground.[77] Second, whether a suit should be entertained or dismissed
on the basis of the said doctrine depends largely upon the facts of the particular
case and is addressed to the sound discretion of the trial court. [78] In this case, the
RTC decided to assume jurisdiction. Third, the propriety of dismissing a case based
on this principle requires a factual determination; hence, this conflicts principle is
more properly considered a matter of defense.[79]
Accordingly, since the RTC is vested by law with the power to entertain and
hear the civil case filed by respondent and the grounds raised by petitioners to
assail that jurisdiction are inappropriate, the trial and appellate courts correctly
denied the petitioners motion to dismiss.
WHEREFORE, premises
on certiorari is DENIED.

considered,

the

petition

for

review

SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

RUBEN T. REYES
Associate Justice

AT T E S TAT I O N
I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. Nos. L-27860 and L-27896 March 29, 1974


PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of
Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo,
Branch II, and AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE
ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK,administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN,
BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO
LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA

PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in


Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee.
San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p
Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent
court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance
of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued
without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning,
or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as
those enumerated in the petition, and from exercising any authority or power as Regular
Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings
filed by her and acting on them, and also to enjoin said court from allowing said private respondent
to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary
injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition
being particularly directed against the orders of the respondent court of October 12, 1966 denying
petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for
reconsideration of said order.
Related to and involving basically the same main issue as the foregoing petition, thirty-three (33)
appeals from different orders of the same respondent court approving or otherwise sanctioning the
acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22,
1952 pertinently providing as follows:
FIRST: I direct that all my just debts and funeral expenses be first paid out of my
estate.
SECOND: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold unto him, my said husband,
during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and
he is hereby given the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and the purchase of any
other or additional property as he may think best; to execute conveyances with or
without general or special warranty, conveying in fee simple or for any other term or
time, any property which he may deem proper to dispose of; to lease any of the real

property for oil, gas and/or other minerals, and all such deeds or leases shall pass
the absolute fee simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall belong to him,
and he is further authorized to use any part of the principal of said estate as he may
need or desire. It is provided herein, however, that he shall not sell or otherwise
dispose of any of the improved property now owned by us located at, in or near the
City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy
the same during his lifetime, above provided. He shall have the right to subdivide any
farm land and sell lots therein. and may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise
and bequeath all of the rest, residue and remainder of my estate, both real and
personal, wherever situated or located, to be equally divided among my brothers and
sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era
Roman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters named in item
Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is
my will and bequest that the heirs of such deceased brother or sister shall take jointly
the share which would have gone to such brother or sister had she or he survived.
SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be
executor of this, my last will and testament, and direct that no bond or other security
be required of him as such executor.
SEVENTH: It is my will and bequest that no action be had in the probate court, in the
administration of my estate, other than that necessary to prove and record this will
and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4,
Petition.)
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent
court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor,
pursuant to the provisions thereof.
Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been
appointed Special Administrator, in which capacity he filed a motion on the same date as follows:
URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO
CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM
ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the
Hon. Court, most respectfully states:
1. That Linnie Jane Hodges died leaving her last will and testament, a copy of
which is attached to the petition for probate of the same.
2. That in said last will and testament herein petitioner Charles Newton Hodges is
directed to have the right to manage, control use and enjoy the estate of deceased

Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the
following: "I give, devise and bequeath all of the rest, residue and remainder of my
estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto
him, my said husband, during his natural lifetime."
3. That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged
in the business of buying and selling personal and real properties, and do such acts
which petitioner may think best.
4. That deceased Linnie Jane Hodges died leaving no descendants or
ascendants, except brothers and sisters and herein petitioner as executor surviving
spouse, to inherit the properties of the decedent.
5. That the present motion is submitted in order not to paralyze the business of
petitioner and the deceased, especially in the purchase and sale of properties. That
proper accounting will be had also in all these transactions.
WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles
Newton Hodges) be allowed or authorized to continue the business in which he was
engaged and to perform acts which he had been doing while deceased Linnie Jane
Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", Petition.)
which the respondent court immediately granted in the following order:
It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the
business in which said petitioner and the deceased were engaged will be paralyzed,
unless and until the Executor is named and appointed by the Court, the said
petitioner is allowed or authorized to continue the business in which he was engaged
and to perform acts which he had been doing while the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such Executor another motion thus:
MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES
THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT
TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE
LAST WISH OF THE DECEASED LINNIE JANE HODGES.
Comes the Executor in the above-entitled proceedings, thru his undersigned
attorney, to the Hon. Court, most respectfully states:
1. That according to the last will and testament of the deceased Linnie Jane
Hodges, the executor as the surviving spouse and legatee named in the will of the
deceased; has the right to dispose of all the properties left by the deceased, portion
of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold unto him, my said husband,
during his natural lifetime.
Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and
he is hereby given the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and the purchase of any
other or additional property as he may think best; to execute conveyances with or
without general or special warranty, conveying in fee simple or for any other term or
time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass
the absolute fee simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall belong to him,
and he is further authorized to use any part of the principal of said estate as he may
need or desire. ...
2. That herein Executor, is not only part owner of the properties left as conjugal,
but also, the successor to all the properties left by the deceased Linnie Jane Hodges.
That during the lifetime of herein Executor, as Legatee has the right to sell, convey,
lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges
was and is engaged in the buy and sell of real and personal properties, even before
the death of Linnie Jane Hodges, a motion to authorize said C.N. Hodges was filed in
Court, to allow him to continue in the business of buy and sell, which motion was
favorably granted by the Honorable Court.
3. That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying
and selling real and personal properties, in accordance with the wishes of the late
Linnie Jane Hodges.
4. That the Register of Deeds for Iloilo, had required of late the herein Executor to
have all the sales, leases, conveyances or mortgages made by him, approved by the
Hon. Court.
5. That it is respectfully requested, all the sales, conveyances leases and
mortgages executed by the Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in compliances with the
wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last
will and testament, also be approved;
6. That the Executor is under obligation to submit his yearly accounts, and the
properties conveyed can also be accounted for, especially the amounts received.
WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases,
and mortgages executed by the Executor, be approved by the Hon. Court, and also
the subsequent sales, conveyances, leases, and mortgages in consonance with the
wishes of the deceased contained in her last will and testament, be with authorization
and approval of the Hon. Court.
City of Iloilo, December 11, 1967.

(Annex "G", Petition.)


which again was promptly granted by the respondent court on December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his
motion dated December 11, 1957, which the Court considers well taken all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane
Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said
Executor is further authorized to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance
with the wishes conveyed in the last will and testament of the latter.

So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges
alleged:
Pursuant to the provisions of the Rules of Court, herein executor of the deceased,
renders the following account of his administration covering the period from January
1, 1958 to December 31, 1958, which account may be found in detail in the individual
income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:
That a certified public accountant has examined the statement of net worth of the
estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and
expenses, copy of which is hereto attached and made integral part of this statement
of account as Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of
net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the deceased
and marked as Annex "A", be approved by the Honorable Court, as substantial
compliance with the requirements of the Rules of Court.
That no person interested in the Philippines of the time and place of examining the
herein accounts be given notice, as herein executor is the only devisee or legatee of
the deceased, in accordance with the last will and testament already probated by the
Honorable court.
City of Iloilo April 14, 1959.
(Annex "I", Petition.)
The respondent court approved this statement of account on April 21, 1959 in its order worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of net
worth of the estate of Linnie Jane Hodges, assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the deceased
and marked as Annex "A" is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to
December 31, 1960 were submitted likewise accompanied by allegations identical mutatis
mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same,
dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April
21, 1959. In connection with the statements of account just mentioned, the following assertions
related thereto made by respondent-appellee Magno in her brief do not appear from all indications
discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges
and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto,
C.N. Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December
31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate
earned a net income of P270,623.32, divided evenly between him and the estate of
Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of P135,311.66, exactly one-half of the net
income of his combined personal assets and that of the estate of Linnie Jane
Hodges. (pp. 91-92. Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of
Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In
the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income of P314,857.94, divided evenly
between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an
"individual income tax return" for calendar year 1960 on the estate of Linnie Jane

Hodges reporting, under oath, the said estate as having earned income of
P157,428.97, exactly one-half of the net income of his combined personal assets and
that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records
"in order the heirs of deceased Roy Higdon may not think or believe they were
omitted, and that they were really and are interested in the estate of deceased Linnie
Jane Hodges. .
As an executor, he was bound to file tax returns for the estate he was administering
under American law. He did file such as estate tax return on August 8, 1958. In
Schedule "M" of such return, he answered "Yes" to the question as to whether he
was contemplating "renouncing the will". On the question as to what property
interests passed to him as the surviving spouse, he answered:
"None, except for purposes of administering the Estate, paying debts,
taxes and other legal charges. It is the intention of the surviving
husband of deceased to distribute the remaining property and
interests of the deceased in their Community estate to the devisees
and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid."
Again, on August 9, 1962, barely four months before his death, he executed an "affidavit"
wherein he ratified and confirmed all that he stated in Schedule "M" of his estate tax
returns as to his having renounced what was given him by his wife's will. 1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He
listed all the assets of his conjugal partnership with Linnie Jane Hodges on a
separate balance sheet and then stated expressly that her estate which has come
into his possession as executor was "one-half of all the items" listed in said balance
sheet. (Pp. 89-90, Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least,
extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for
a more comprehensive and clearer view of the important and decisive issues raised by the parties
and a more accurate appraisal of their respective positions in regard thereto.
The records of these cases do not show that anything else was done in the above-mentioned
Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges
the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel
for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted
motions and manifestations, filed the following:
URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A
SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled proceedings,
to the Honorable Court, most respectfully states:
1. That in accordance with the Last Will and Testament of Linnie Jane Hodges
(deceased), her husband, Charles Newton Hodges was to act as Executor, and in
fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles
Newton Hodges was appointed Executor and had performed the duties as such.
2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill,
and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on
December 25, 1962, as shown by a copy of the death certificate hereto attached and
marked as Annex "A".
3. That in accordance with the provisions of the last will and testament of Linnie Jane
Hodges, whatever real and personal properties that may remain at the death of her
husband Charles Newton Hodges, the said properties shall be equally divided among
their heirs. That there are real and personal properties left by Charles Newton
Hodges, which need to be administered and taken care of.
4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been determined or ascertained, and there is
necessity for the appointment of a general administrator to liquidate and distribute
the residue of the estate to the heirs and legatees of both spouses. That in
accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the
conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be
liquidated in the testate proceedings of the wife.
5. That the undersigned counsel, has perfect personal knowledge of the existence of
the last will and testament of Charles Newton Hodges, with similar provisions as that
contained in the last will and testament of Linnie Jane Hodges. However, said last
will and testament of Charles Newton Hodges is kept inside the vault or iron safe in
his office, and will be presented in due time before this honorable Court.
6. That in the meantime, it is imperative and indispensable that, an Administratrix be
appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the
estate of Charles Newton Hodges, to perform the duties required by law, to
administer, collect, and take charge of the goods, chattels, rights, credits, and estate
of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for
in Section 1 and 2, Rule 81 of the Rules of Court.
7. That there is delay in granting letters testamentary or of administration, because
the last will and testament of deceased, Charles Newton Hodges, is still kept in his
safe or vault, and in the meantime, unless an administratrix (and,) at the same time,
a Special Administratrix is appointed, the estate of both spouses are in danger of
being lost, damaged or go to waste.
8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N.
Hodges, who had been employed for around thirty (30) years, in the person of Miss
Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane
Hodges and at the same time Special Administratrix of the estate of Charles Newton
Hodges. That the said Miss Avelina Magno is of legal age, a resident of the

Philippines, the most fit, competent, trustworthy and well-qualified person to serve
the duties of Administratrix and Special Administratrix and is willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon.
Court believes reasonable.
WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss
AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges,
with powers and duties provided for by law. That the Honorable Court fix the
reasonable bond of P1,000.00 to be filed by Avelina A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of even date thus: .
For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the
Executor dated December 25, 1962, which the Court finds meritorious, Miss
AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane
Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the
latter case, because the last will of said Charles Newton Hodges is still kept in his
vault or iron safe and that the real and personal properties of both spouses may be
lost, damaged or go to waste, unless a Special Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having done so, let letters of Administration be issued
to her." (Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte petition of respondent
Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of
deceased Charles Newton Hodges (who had) arrived from the United States of
America to help in the administration of the estate of said deceased" was appointed
as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on
Appeal) only to be replaced as such co-special administrator on January 22, 1963 by
Joe Hodges, who, according to the motion of the same attorney, is "the nephew of
the deceased (who had) arrived from the United States with instructions from the
other heirs of the deceased to administer the properties or estate of Charles Newton
Hodges in the Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672
a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of
administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a
separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same
date this latter motion was filed, the court issued the corresponding order of probate and letters of
administration to Joe Hodges and Atty. Mirasol, as prayed for.
At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her
whole estate to her husband "to have and to hold unto him, my said husband, during his natural
lifetime", she, at the same time or in like manner, provided that "at the death of my said husband I
give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal,
wherever situated or located, to be equally divided among my brothers and sisters, share and share
alike ". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly

liquidate the conjugal partnership, half of which constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and remainder" thereof could be determined and
correspondingly distributed or divided among her brothers and sisters. And it was precisely because
no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate
should be governed by the laws of the Philippines or those of Texas, of which State she was a
national, and, what is more, as already stated, Hodges made official and sworn statements or
manifestations indicating that as far as he was concerned no "property interests passed to him as
surviving spouse "except for purposes of administering the estate, paying debts, taxes and other
legal charges" and it was the intention of the surviving husband of the deceased to distribute the
remaining property and interests of the deceased in their Community Estate to the devisees and
legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally
determined and paid", that the incidents and controversies now before Us for resolution arose. As
may be observed, the situation that ensued upon the death of Hodges became rather unusual and
so, quite understandably, the lower court's actuations presently under review are apparently wanting
in consistency and seemingly lack proper orientation.
Thus, We cannot discern clearly from the record before Us the precise perspective from which the
trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs
submitted by the parties is of valuable assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the
appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of
modus operandi had been agreed upon by the parties under which the respective administrators of
the two estates were supposed to act conjointly, but since no copy of the said agreement can be
found in the record before Us, We have no way of knowing when exactly such agreement was
entered into and under what specific terms. And while reference is made to said modus operandi in
the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:
The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in
answer to the charges contained in the motion filed by Atty. Cesar Tirol on
September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through
her counsel, Atty. Rizal Quimpo, filed a written manifestation.
After reading the manifestation here of Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno, the Court finds that everything that happened
before September 3, 1964, which was resolved on September 8, 1964, to the
satisfaction of parties, was simply due to a misunderstanding between the
representative of the Philippine Commercial and Industrial Bank and Miss Magno
and in order to restore the harmonious relations between the parties, the Court
ordered the parties to remain in status quo as to their modus operandi before
September 1, 1964, until after the Court can have a meeting with all the parties and
their counsels on October 3, as formerly agreed upon between counsels, Attys.
Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.
In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not
be resolved by this Court until October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever happened to it afterwards, except that again,
reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the
Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive
possession thereof and to place its own locks and keys for security purposes of the
PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion
that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to
open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds
office and therefore PCIB is suffering great moral damage and prejudice as a result
of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors
and locks in the said office, to take immediate and exclusive possession thereof and
place thereon its own locks and keys for security purposes; instructing the clerk of
court or any available deputy to witness and supervise the opening of all doors and
locks and taking possession of the PCIB.
A written opposition has been filed by Administratrix Magno of even date (Oct. 27)
thru counsel Rizal Quimpo stating therein that she was compelled to close the office
for the reason that the PCIB failed to comply with the order of this Court signed by
Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates
should remain in status quo to their modus operandi as of September 1, 1964.
To arrive at a happy solution of the dispute and in order not to interrupt the operation
of the office of both estates, the Court aside from the reasons stated in the urgent
motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB
and Atty. Rizal Quimpo for Administratix Magno.
After due consideration, the Court hereby orders Magno to open all doors and locks
in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the
PCIB or its duly authorized representative and deputy clerk of court Albis of this
branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office
of said estates could operate for business.
Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it
is hereby ordered:
(a) That all cash collections should be deposited in the joint account of the estates of
Linnie Jane Hodges and estates of C.N. Hodges;
(b) That whatever cash collections that had been deposited in the account of either of
the estates should be withdrawn and since then deposited in the joint account of the
estate of Linnie Jane Hodges and the estate of C.N. Hodges;
(c) That the PCIB should countersign the check in the amount of P250 in favor of
Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie
Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only;
(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in the
same manner that Administrator PCIB is also directed to allow Administratrix Magno
to inspect whatever records, documents and papers it may have in its possession;
(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all
records of the transactions of both estates for the protection of the estate of Linnie
Jane Hodges; and in like manner the accountant or any authorized representative of

the estate of C.N. Hodges shall have access to the records of transactions of the
Linnie Jane Hodges estate for the protection of the estate of C.N. Hodges.
Once the estates' office shall have been opened by Administratrix Magno in the
presence of the PCIB or its duly authorized representative and deputy clerk Albis or
his duly authorized representative, both estates or any of the estates should not
close it without previous consent and authority from this court.
SO ORDERED.
As may be noted, in this order, the respondent court required that all collections from the properties
in the name of Hodges should be deposited in a joint account of the two estates, which indicates that
seemingly the so-calledmodus operandi was no longer operative, but again there is nothing to show
when this situation started.
Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the
Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:
3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C.N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane
Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon
family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and
various legal counsel representing the aforementioned parties entered into an
amicable agreement, which was approved by this Honorable Court, wherein the
parties thereto agreed that certain sums of money were to be paid in settlement of
different claims against the two estates and that the assets (to the extent they
existed) of both estates would be administered jointly by the PCIB as administrator of
the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of
Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive possession and ownership of one hundred
percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned
by C.N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1,
1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order
of January 24, 1964 but in no way changed its recognition of the afore-described
basic demand by the PCIB as administrator of the estate of C.N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.
but no copy of the mentioned agreement of joint administration of the two estates exists in the
record, and so, We are not informed as to what exactly are the terms of the same which could be
relevant in the resolution of the issues herein.
On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green
Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as
administratrix, the attorney's fees of her lawyers, etc., as follows:
Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the
Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their
services to protect and defend the interest of the said Administratrix in these
proceedings and the same has been signed by and bears the express conformity of
the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further

prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be
directed to pay the retailers fee of said lawyers, said fees made chargeable as
expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642,
Vol. V, Sp. 1307).
An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta
dated July 11, 1964, on the ground that payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is
prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys.
Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and
Manglapus are representing conflicting interests and the estate of Linnie Jane
Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied
because no evidence has been presented in support thereof. Atty. Manglapus filed a
reply to the opposition of counsel for the Administrator of the C. N. Hodges estate
wherein it is claimed that expenses of administration include reasonable counsel or
attorney's fees for services to the executor or administrator. As a matter of fact the
fee agreement dated February 27, 1964 between the PCIB and the law firm of
Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which
stipulates the fees for said law firm has been approved by the Court in its order dated
March 31, 1964. If payment of the fees of the lawyers for the administratrix of the
estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in
like manner the very agreement which provides for the payment of attorney's fees to
the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges
(pp. 1801-1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the
opposition to the Manifestation and Urgent Motion alleging principally that the estates
of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that
C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the
former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 18391848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their
appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June
10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that
Judge Bellosillo issued an order requiring the parties to submit memorandum in
support of their respective contentions. It is prayed in this manifestation that the
Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439,
Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January
5, 1965 asking that after the consideration by the court of all allegations and
arguments and pleadings of the PCIB in connection therewith (1) said manifestation
and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol.
VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the
motion dated June 10, 1964 of the attorneys for the administratrix of the estate of
Linnie Jane Hodges and agreement annexed to said motion. The said order further
states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue
or sign whatever check or checks may be necessary for the above purpose and the

administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp.


6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated
January 13, 1965 asking that the order of January 4, 1965 which was issued by
Judge Querubin be declared null and void and to enjoin the clerk of court and the
administratrix and administrator in these special proceedings from all proceedings
and action to enforce or comply with the provision of the aforesaid order of January
4, 1965. In support of said manifestation and motion it is alleged that the order of
January 4, 1965 is null and void because the said order was never delivered to the
deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order
was found in the drawer of the late Judge Querubin in his office when said drawer
was opened on January 13, 1965 after the death of Judge Querubin by Perfecto
Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira
and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII,
Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated
February 23, 1965 asking that the order dated January 4, 1964 be reversed on the
ground that:
1. Attorneys retained must render services to the estate not to the personal heir;
2. If services are rendered to both, fees should be pro-rated between them;
3. Attorneys retained should not represent conflicting interests; to the prejudice of the
other heirs not represented by said attorneys;
4. Fees must be commensurate to the actual services rendered to the estate;
5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII,
Sp. 1307).
Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a
motion to submit dated July 15, 1965 asking that the manifestation and urgent motion
dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents
directly appertaining thereto be considered submitted for consideration and approval
(pp. 6759-6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons in support to the pleadings of both the
Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court
believes that the order of January 4, 1965 is null and void for the reason that the said
order has not been filed with deputy clerk Albis of this court (Branch V) during the
lifetime of Judge Querubin who signed the said order. However, the said
manifestation and urgent motion dated June 10, 1964 is being treated and
considered in this instant order. It is worthy to note that in the motion dated January
24, 1964 (Pp. 1149- 1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and
his associates and Atty. Gibbs and other lawyers in addition to the stipulated fees for
actual services rendered. However, the fee agreement dated February 27, 1964,
between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which
provides for retainer fee of P4,000 monthly in addition to specific fees for actual
appearances, reimbursement for expenditures and contingent fees has also been

approved by the Court and said lawyers have already been paid. (pp. 1273-1279,
Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.
The manifestation and motion dated June 10, 1964 which was filed by the attorneys
for the administratrix of the testate estate of Linnie Jane Hodges is granted and the
agreement annexed thereto is hereby approved.
The administratrix of the estate of Linnie Jane Hodges is hereby directed to be
needed to implement the approval of the agreement annexed to the motion and the
administrator of the estate of C. N. Hodges is directed to countersign the said check
or checks as the case may be.
SO ORDERED.
thereby implying somehow that the court assumed the existence of independent but simultaneous
administrations.
Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner
for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the
following order, also on appeal herein:
Acting upon the motion for approval of deeds of sale for registered land of the PCIB,
Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp.
2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the
law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto
of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and
considering the allegations and reasons therein stated, the court believes that the
deeds of sale should be signed jointly by the PCIB, Administrator of the Testate
Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of
Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so
that Administratrix Avelina A. Magno could sign the deeds of sale.
SO ORDERED. (p. 248, Green Record on Appeal.)
Notably this order required that even the deeds executed by petitioner, as administrator of the Estate
of Hodges, involving properties registered in his name, should be co-signed by respondent
Magno. 3 And this was not an isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee Avelina A. Magno to execute final
deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February
20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale
(signed by appellee Avelina A. Magno and the administrator of the estate of C. N.
Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were
approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P.
Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court.
Subsequently, the appellant, after it had taken over the bulk of the assets of the two
estates, started presenting these motions itself. The first such attempt was a "Motion

for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages"
dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed
by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and
Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701).
This motion was approved by the lower court on July 27, 1964. It was followed by
another motion dated August 4, 1964 for the approval of one final deed of sale again
signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No.
1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on
August 7, 1964. The gates having been opened, a flood ensued: the appellant
subsequently filed similar motions for the approval of a multitude of deeds of sales
and cancellations of mortgages signed by both the appellee Avelina A. Magno and
the appellant.
A random check of the records of Special Proceeding No. 1307 alone will show Atty.
Cesar T. Tirol as having presented for court approval deeds of sale of real properties
signed by both appellee Avelina A. Magno and D. R. Paulino in the following
numbers: (a) motion dated September 21, 1964 6 deeds of sale; (b) motion dated
November 4, 1964 1 deed of sale; (c) motion dated December 1, 1964 4 deeds
of sale; (d) motion dated February 3, 1965 8 deeds of sale; (f) motion dated May
7, 1965 9 deeds of sale. In view of the very extensive landholdings of the Hodges
spouses and the many motions filed concerning deeds of sale of real properties
executed by C. N. Hodges the lower court has had to constitute special separate
expedientes in Special Proceedings Nos. 1307 and 1672 to include mere motions for
the approval of deeds of sale of the conjugal properties of the Hodges spouses.
As an example, from among the very many, under date of February 3, 1965, Atty.
Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of
Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc.
No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:
"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property,
and the prospective buyers under said contracts have already paid the price and
complied with the terms and conditions thereof;
"2. In the course of administration of both estates, mortgage debtors have already
paid their debts secured by chattel mortgages in favor of the late C. N. Hodges, and
are now entitled to release therefrom;
"3. There are attached hereto documents executed jointly by the Administratrix in Sp.
Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of
sale in favor
Fernando Cano, Bacolod City, Occ. Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of


Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City
"4. That the approval of the aforesaid documents will not reduce the
assets of the estates so as to prevent any creditor from receiving his
full debt or diminish his dividend."
And the prayer of this motion is indeed very revealing:
"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules
of Court, this honorable court approve the aforesaid deeds of sale and cancellations
of mortgages." (Pp. 113-117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.
Further indicating lack of concrete perspective or orientation on the part of the respondent court and
its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on
pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo
Salas, President of appellee Western Institute of Technology (successor of Panay Educational
Institutions, Inc.), one of the parties with whom Hodges had contracts that are in question in the
appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno,
as Administrator of the estate of Mrs. Hodges, thus:
Considering that in both cases there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto, the Court believes that
payment to both the administrator of the testate estate of C. N. Hodges and the
administratrix of the testate estate of Linnie Jane Hodges or to either one of the two
estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were instances when respondent Magno was given
authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221
of the Green Record on Appeal, the respondent court approved payments made by her of overtime
pay to some employees of the court who had helped in gathering and preparing copies of parts of
the records in both estates as follows:
Considering that the expenses subject of the motion to approve payment of overtime
pay dated December 10, 1964, are reasonable and are believed by this Court to be a

proper charge of administration chargeable to the testate estate of the late Linnie
Jane Hodges, the said expenses are hereby APPROVED and to be charged against
the testate estate of the late Linnie Jane Hodges. The administrator of the testate
estate of the late Charles Newton Hodges is hereby ordered to countersign the check
or checks necessary to pay the said overtime pay as shown by the bills marked
Annex "A", "B" and "C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as
Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to
"contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or
after the death of his wife. The orders of this nature which are also on appeal herein are the
following:
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale
executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant
to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract
petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7,
1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent
Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell"
signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner
claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on
time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent
Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell"
signed by Hodges on August 14, 1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent
Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell"
signed by Hodges on February 21, 1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent
Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed
by Hodges on February 10, 1959, after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent
Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell"
signed by Hodges on May 26, 1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent
Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3,
1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November
27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by
respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario
Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958,
respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent
Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed
by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had
cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent
Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by
Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had
cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed
by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a
"contract to sell" signed by Hodges on February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by
respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa
Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate
"promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the
death of his wife, and October 31, 1959, after her death.
In like manner, there were also instances when respondent court approved deeds of sale executed
by petitioner alone and without the concurrence of respondent Magno, and such approvals have not
been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief
as appellant thus:
The points of fact and law pertaining to the two abovecited assignments of error have
already been discussed previously. In the first abovecited error, the order alluded to
was general, and as already explained before, it was, as admitted by the lower court
itself, superseded by the particular orders approving specific final deeds of sale
executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well
as the particular orders approving specific final deeds of sale executed by the
appellant, Philippine Commercial and Industrial Bank, which were never appealed by
the appellee, Avelina A. Magno, nor by any party for that matter, and which are now
therefore final.
Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing
significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in
representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe
Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO
ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF
THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING
AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through
his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court
respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and
appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25,
Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N.
Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the basis of the following
allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:
"That herein Executor, (is) not only part owner of the properties left as
conjugal, but also,the successor to all the properties left by the
deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the Executory, for the
reasons stated in his motion dated December 11, 1957 which the
court considers well taken, all the sales, conveyances, leases and
mortgages of all properties left by the deceased Linnie Jane Hodges
are hereby APPROVED. The said executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of
the properties left by the said deceased Linnie Jane Hodges in
consonance with the wishes contained in the last will and testament
of the latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(5) On April 21, 1959 this Honorable Court approved the inventory and accounting
submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959
wherein he alleged among other things
"That no person interested in the Philippines of the time and place of
examining the herein account, be given notice, as herein executor is
the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated by the Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21,
1960 wherein he alleged among other things:
"That no person interested in the Philippines of the time and place of
examining the herein account, be given notice as herein executor is
the only devisee or legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament of the deceased, already
probated by this Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)
(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account
By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20,
1961 wherein he alleged:
That no person interested in the Philippines be given notice, of the
time and place of examining the herein account, as herein Executor
is the only devisee or legatee of the deceased Linnie Jane Hodges,
in accordance with the last will and testament of the deceased,
already probated by this Honorable Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed
only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A.
Magno
"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of
the estate of Charles Newton Hodges, in the latter case, because the last will of said
Charles Newton Hodges is still kept in his vault or iron safe and that the real and
personal properties of both spouses may be lost, damaged or go to waste, unless a
Special Administratrix is appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno
pursuant to this Honorable Court's aforesaid Order of December 25, 1962
"With full authority to take possession of all the property of said
deceased in any province or provinces in which it may be situated
and to perform all other acts necessary for the preservation of said
property, said Administratrix and/or Special Administratrix having filed
a bond satisfactory to the Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of
January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;


(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton
Hodges; and
(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton
Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by
Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting
as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc.
1307) issued the following order:
"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de
venta definitiva de propiedades cubiertas por contratos para vender,
firmados, en vida, por el finado Charles Newton Hodges, cada vez
que el precio estipulado en cada contrato este totalmente pagado. Se
autoriza igualmente a la misma a firmar escrituras de cancelacion de
hipoteca tanto de bienes reales como personales cada vez que la
consideracion de cada hipoteca este totalmente pagada.
"Cada una de dichas escrituras que se otorguen debe ser sometida
para la aprobacion de este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe Hodges]
(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno
as Administratrix of the estate of Linnie Jane Hodges, alleges:
3. That since January, 1963, both estates of Linnie Jane Hodges
and Charles Newton Hodges have been receiving in full, payments
for those "contracts to sell" entered into by C. N. Hodges during his
lifetime, and the purchasers have been demanding the execution of
definite deeds of sale in their favor.
4. That hereto attached are thirteen (13) copies deeds of sale
executed by the Administratrix and by the co-administrator (Fernando
P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton
Hodges respectively, in compliance with the terms and conditions of
the respective "contracts to sell" executed by the parties thereto."
(14) The properties involved in the aforesaid motion of September 16, 1963 are all
registered in the name of the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in
the newspaper in Iloilo thusly:

For Sale
Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.
All Real Estate or Personal Property will be sold on First Come First Served Basis.
Avelina
A.
Magno
Admini
stratrix
(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is
paying sums of money to sundry persons.
(17) Joe Hodges through the undersigned attorneys manifested during the hearings
before this Honorable Court on September 5 and 6, 1963 that the estate of C. N.
Hodges was claiming all of the assets belonging to the deceased spouses Linnie
Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid
election by C. N. Hodges wherein he claimed and took possession as sole owner of
all of said assets during the administration of the estate of Linnie Jane Hodges on the
ground that he was the sole devisee and legatee under her Last Will and Testament.
(18) Avelina A. Magno has submitted no inventory and accounting of her
administration as Administratrix of the estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N. Hodges. However, from manifestations made by
Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she
will claim that at least fifty per cent (50%) of the conjugal assets of the deceased
spouses and the rents, emoluments and income therefrom belong to the Higdon
family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane
Hodges (p. 5, Rec. Sp. Proc. 1307).
WHEREFORE, premises considered, movant respectfully prays that this Honorable
Court, after due hearing, order:
(1) Avelina A. Magno to submit an inventory and accounting of all of the funds,
properties and assets of any character belonging to the deceased Linnie Jane
Hodges and C. N. Hodges which have come into her possession, with full details of
what she has done with them;
(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C.
N. Hodges all of the funds, properties and assets of any character remaining in her
possession;
(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A.
Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly
authorized representative, such as the undersigned attorneys) as the Coadministrator and attorney-in-fact of a majority of the beneficiaries of the estate of C.
N. Hodges:
(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.


(4) Such other relief as this Honorable Court may deem just and equitable in the
premises. (Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and
Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank
as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court,
and because the above motion of October 5, 1963 had not yet been heard due to the absence from
the country of Atty. Gibbs, petitioner filed the following:
MANIFESTATION AND MOTION, INCLUDING MOTION TO SET
FOR HEARING AND RESOLVE "URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as
PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings
No. 1672, through its undersigned counsel, and to this Honorable Court respectfully
alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C.


N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For An
Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The
Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N.
Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and
Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).
2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement
entered into on January 23, 1964 by the two co-administrators of the estate of C. N.
Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No.
1672), resolved the dispute over who should act as administrator of the estate of C.
N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges
(pp. 905-906, CFI Rec. S. P. No. 1672) and issuing letters of administration to the
PCIB.
3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C. N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane
Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon
family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and
various legal counsel representing the aforenamed parties entered into an amicable
agreement, which was approved by this Honorable Court, wherein the parties thereto
agreed that certain sums of money were to be paid in settlement of different claims
against the two estates and that the assets (to the extent they existed)of both estates
would be administrated jointly by the PCIB as administrator of the estate of C. N.
Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges,
subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim

to exclusive possession and ownership of one-hundred percent (10017,) (or, in the


alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI
Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964
but in no way changes its recognition of the aforedescribed basic demand by the
PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%)
of the assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of
October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion
of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the
United States, this Honorable Court ordered the indefinite postponement of the
hearing of the Motion of October 5, 1963.
6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has
not been able to properly carry out its duties and obligations as administrator of the
estate of C. N. Hodges because of the following acts, among others, of Avelina A.
Magno and those who claim to act for her as administratrix of the estate of Linnie
Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is in exclusive control of
all of the assets in the Philippines of both estates including those
claimed by the estate of C. N. Hodges as evidenced in part by her
locking the premises at 206-208 Guanco Street, Iloilo City on August
31, 1964 and refusing to reopen same until ordered to do so by this
Honorable Court on September 7, 1964.
(b) Avelina A. Magno illegally acts as though she alone may decide
how the assets of the estate of C.N. Hodges should be administered,
who the PCIB shall employ and how much they may be paid as
evidenced in party by her refusal to sign checks issued by the PCIB
payable to the undersigned counsel pursuant to their fee agreement
approved by this Honorable Court in its order dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns over
possession of the records and assets of the estate of C.N. Hodges to
the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as
evidenced in part by the cashing of his personal checks.
(d) Avelina A. Magno illegally refuses to execute checks prepared by
the PCIB drawn to pay expenses of the estate of C. N. Hodges as
evidenced in part by the check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964 income taxes reported due
and payable by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable Court, particularly those of
January 24 and February 1, 1964, and the mandate contained in its Letters of
Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property of


the deceased C. N. Hodges
"and to perform all other acts necessary for the preservation of said
property." (p. 914, CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the
immediate exclusive possession and control of all of the properties, accounts
receivables, court cases, bank accounts and other assets, including the documentary
records evidencing same, which existed in the Philippines on the date of C. N.
Hodges' death, December 25, 1962, and were in his possession and registered in his
name alone. The PCIB knows of no assets in the Philippines registered in the name
of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor
of the Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of
which the PCIB has knowledge are either registered in the name of C. N. Hodges,
alone or were derived therefrom since his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased,
succeeded to all of the rights of the previously duly appointed administrators of the
estate of C. N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death, this
Honorable Court appointed Miss Avelina A. Magno simultaneously as:
(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI
Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on
May 28, 1957 was appointed Special Administrator (p. 13. CFI Rec.
S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie
Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).
(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI
Rec., S.P. No. 1307).
(b) On December 29, 1962 this Honorable Court appointed Harold K.
Davies as co-special administrator of the estate of C.N. Hodges along
with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307).
(c) On January 22, 1963, with the conformity of Avelina A. Magno,
Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI
Rec., S.P. No. 1672) who thereupon was appointed on January 22,
1963 by this Honorable Court as special co-administrator of the
estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672)
along with Miss Magno who at that time was still acting as special coadministratrix of the estate of C. N. Hodges.
(d) On February 22, 1963, without objection on the part of Avelina A.
Magno, this Honorable Court appointed Joe Hodges and Fernando P.
Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78,
81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
December 25, 1962, took possession of all Philippine Assets now claimed by the two
estates. Legally, Miss Magno could take possession of the assets registered in the
name of C. N. Hodges alone only in her capacity as Special Administratrix of the
Estate of C.N. Hodges. With the appointment by this Honorable Court on February
22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the
estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the
full and exclusive possession of all of the assets of the estate of C.N. Hodges. With
the appointment on January 24, 1964 of the PCIB as the sole administrator of the
estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the
PCIB legally became the only party entitled to the sole and exclusive possession of
all of the assets of the estate of C. N. Hodges.
11. The PCIB's predecessors submitted their accounting and this Honorable Court
approved same, to wit:
(a) The accounting of Harold K. Davies dated January 18, 1963 (pp.
16-33, CFI Rec. S.P. No. 1672); which shows or its face the:
(i) Conformity of Avelina A. Magno acting as "Administratrix of the
Estate of Linnie Jane Hodges and Special Administratrix of the Estate
of C. N. Hodges";
(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of
C.N. Hodges; and
(iii) Conformity of William Brown, a Texas lawyer acting for the Higdon
family who claim to be the only heirs of Linnie Jane Hodges (pp. 18,
25-33, CFI Rec., S. P. No. 1672).
Note: This accounting was approved by this Honorable Court on January 22, 1963
(p. 34, CFI Rec., S. P. No. 1672).
(b) The accounting of Joe Hodges and Fernando P. Mirasol as of
January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec.
S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).
Note: This accounting was approved by this Honorable Court on March 3, 1964.
(c) The PCIB and its undersigned lawyers are aware of no report or
accounting submitted by Avelina A. Magno of her acts as
administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the accounting
of Harold K. Davies as special co-administrator of the estate of C.N.
Hodges dated January 18, 1963 to which Miss Magno manifested her
conformity (supra).
12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive
P10,000.00

"for her services as administratrix of the estate of Linnie Jane


Hodges"
and in addition she agreed to be employed, starting February 1, 1964, at
"a monthly salary of P500.00 for her services as an employee of both
estates."
24 ems.
13. Under the aforesaid agreement of January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB as administrator of the estate of C. N.
Hodges is entitled to the exclusive possession of all records, properties and assets in
the name of C. N. Hodges as of the date of his death on December 25, 1962 which
were in the possession of the deceased C. N. Hodges on that date and which then
passed to the possession of Miss Magno in her capacity as Special Co-Administratrix
of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P.
Mirasol as co-administrators of the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB
concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss
Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On
September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and
denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated
September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss
Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the
PCIB access thereto no later than September 8, 1964.
15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in
physical possession of all of the assets of the estate of C. N. Hodges. However, the
PCIB is not in exclusive control of the aforesaid records, properties and assets
because Miss Magno continues to assert the claims hereinabove outlined in
paragraph 6, continues to use her own locks to the doors of the aforesaid premises
at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know
the combinations to the doors of the vault and safes situated within the premises at
206-208 Guanco Street despite the fact that said combinations were known to only
C. N. Hodges during his lifetime.
16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane
Hodges were assessed and paid on the basis that C. N. Hodges is the sole
beneficiary of the assets of the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal counsel at no time have questioned the
validity of the aforesaid assessment and the payment of the corresponding Philippine
death taxes.
17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to
resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive
possession and control of all of the records, properties and assets of the estate of C.
N. Hodges.
18. Such assets as may have existed of the estate of Linnie Jane Hodges were
ordered by this Honorable Court in special Proceedings No. 1307 to be turned over

and delivered to C. N. Hodges alone. He in fact took possession of them before his
death and asserted and exercised the right of exclusive ownership over the said
assets as the sole beneficiary of the estate of Linnie Jane Hodges.
WHEREFORE, premises considered, the PCIB respectfully petitions that this
Honorable court:
(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with
notice to all interested parties;
(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix
of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N.
Hodges of all of the funds, properties and assets of any character belonging to the
deceased Linnie Jane Hodges and C. N. Hodges which have come into her
possession, with full details of what she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of
the estate of C. N. Hodges all of the funds, properties and assets of any character
remaining in her possession;
(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina
A. Magno and her representatives to stop interferring with the administration of the
estate of C. N. Hodges by the PCIB and its duly authorized representatives;
(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street,
Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal
as such by the PCIB effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly
representing Miss Magno from entering the premises at 206-208 Guanco Street,
Iloilo City or any other properties of C. N. Hodges without the express permission of
the PCIB;
(7) Order such other relief as this Honorable Court finds just and equitable in the
premises. (Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane
Hodges Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as
administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this
Honorable Court respectfully alleges that:
1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges,
American citizens originally from the State of Texas, U.S.A., acquired and
accumulated considerable assets and properties in the Philippines and in the States
of Texas and Oklahoma, United States of America. All said properties constituted
their conjugal estate.
2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable
Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc.

No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically
ruled that said spouses had lived and worked for more than 50 years in Iloilo City and
had, therefore, acquired a domicile of choice in said city, which they retained until the
time of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last
Will and Testament, a copy of which is hereto attached as Annex "A". The bequests
in said will pertinent to the present issue are the second, third, and fourth provisions,
which we quote in full hereunder.
SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated, or
located, to my husband, Charles Newton Hodges, to have and to hold
unto him, my said husband during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton
Hodges, shall have the right to manage, control, use and enjoy said
estate during his lifetime, and he is hereby given the right to make
any changes in the physical properties of said estate by sale of any
part thereof which he think best, and the purchase of any other or
additional property as he may think best; to execute conveyances
with or without general or special warranty, conveying in fee simple or
for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any part of the
principal of said estate as he may need or desire. It is provided
herein, however, that he shall not sell or otherwise dispose of any of
the improved property now owned by us located at, in or near the City
of Lubbock, Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, as above provided. He shall
have the right to sub-divide any farmland and sell lots therein, and
may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges,
I give, devise and bequeath all of the rest, residue and remainder of
my estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie
Rascoe, Era Boman and Nimray Higdon."
4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will
and Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N.
Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the
identical language she used in the second and third provisos of her Will, supra.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her
husband by more than five (5) years. At the time of her death, she had no forced or

compulsory heir, except her husband, C. N. Hodges. She was survived also by
various brothers and sisters mentioned in her Will (supra), which, for convenience,
we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N.
Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp.
24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N.
Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p.
30.)
7. The Will of Linnie Jane Hodges, with respect to the order of succession, the
amount of successional rights, and the intrinsic of its testamentary provisions, should
be governed by Philippine laws because:
(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to
govern her Will;
(b) Article 16 of the Civil Code provides that "the national law of the
person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found", shall prevail. However, the Conflict of Law of
Texas, which is the "national law" of the testatrix, Linnie Jane
Hodges, provide that the domiciliary law (Philippine law see
paragraph 2, supra) should govern the testamentary dispositions and
successional rights over movables (personal properties), and the law
of the situs of the property (also Philippine law as to properties
located in the Philippines) with regards immovable (real properties).
Thus applying the "Renvoi Doctrine", as approved and applied by our
Supreme Court in the case of "In The Matter Of The Testate Estate of
Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law should apply
to the Will of Linnie Jane Hodges and to the successional rights to
her estate insofar as her movable andimmovable assets in the
Philippines are concerned. We shall not, at this stage, discuss what
law should govern the assets of Linnie Jane Hodges located in
Oklahoma and Texas, because the only assets in issue in this motion
are those within the jurisdiction of this motion Court in the two abovecaptioned Special Proceedings.
8. Under Philippine and Texas law, the conjugal or community estate of spouses
shall, upon dissolution, be divided equally between them. Thus, upon the death of
Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of
the Hodges spouses constituting their conjugal estate pertained automatically to
Charles Newton Hodges, not by way of inheritance, but in his own right as partner in
the conjugal partnership. The other one-half (1/2) portion of the conjugal estate
constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal
estate capable of inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges
cannot, under a clear and specific provision of her Will, be enhanced or increased by
income, earnings, rents, or emoluments accruing after her death on May 23, 1957.

Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said
estate shall belong to him (C. N. Hodges) and he is further authorized to use any
part of the principal of said estate as he may need or desire." (Paragraph 3, Annex
"A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments
and income" must be credited to the one-half (1/2) portion of the conjugal estate
pertaining to C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges,
capable of inheritance by her heirs, consisted exclusively of no more than one-half
(1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving
spouse of a deceased leaving no ascendants or descendants is entitled, as a matter
of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of
the deceased, and no testamentary disposition by the deceased can legally and
validly affect this right of the surviving spouse. In fact, her husband is entitled to said
one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.)
Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges
was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of
the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share
and 1/4 or 25% by way of inheritance and legitime) plus all "rents, emoluments and
income" accruing to said conjugal estate from the moment of Linnie Jane Hodges'
death (see paragraph 9, supra).
11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole
and exclusive heir with full authority to do what he pleased, as exclusive heir and
owner of all the assets constituting her estate, except only with regards certain
properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus,
even without relying on our laws of succession and legitime, which we have cited
above, C. N. Hodges, by specific testamentary designation of his wife, was entitled
to the entirely to his wife's estate in the Philippines.
12. Article 777 of the New Civil Code provides that "the rights of the successor are
transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane
Hodges was transmitted to C. N. Hodges immediately upon her death on May 23,
1957. For the convenience of this Honorable Court, we attached hereto as Annex "C"
a graph of how the conjugal estate of the spouses Hodges should be divided in
accordance with Philippine law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as
above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges,
appropriated to himself the entirety of her estate. He operated all the assets,
engaged in business and performed all acts in connection with the entirety of the
conjugal estate, in his own name alone, just as he had been operating, engaging and
doing while the late Linnie Jane Hodges was still alive. Upon his death on December
25, 1962, therefore, all said conjugal assets were in his sole possession and control,
and registered in his name alone, not as executor, but as exclusive owner of all said
assets.
14. All these acts of C. N. Hodges were authorized and sanctioned expressly and
impliedly by various orders of this Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is
allowed or authorized to continue the business in which he was engaged, and to

perform acts which he had been doing while the deceased was living." (CFI Record,
Sp. Proc. No. 1307, p. 11.)
(b) On December 14, 1957, this Honorable Court, on the basis of the following fact,
alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:
That herein Executor, (is) not only part owner of the properties left as conjugal, but
also, the successor to all the properties left by the deceased Linnie Jane Hodges.'
(CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated
in his motion dated December 11, 1957, which the Court considers well taken, all the
sales, conveyances, leases and mortgages of all the properties left by the deceased
Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby
APPROVED. The said Executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes contained in the last will and
testament of the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable Court approved the verified inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April
14, 1959 wherein he alleged among other things,
"That no person interested in the Philippines of the time and place of
examining the herein account, be given notice, as herein executor is
the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated by the Honorable Court."
(CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.)
(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement
of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July
21, 1960 wherein he alleged, among other things.
"That no person interested in the Philippines of the time and place of
examining the herein account, be given notice as herein executor is
the only devisee or legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament ofthe deceased, already
probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307,
pp. 81-82; emphasis supplied.)
(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of
Account By The Executor For the Year 1960" submitted through Leon P. Gellada on
April 20, 1961 wherein he alleged:
"That no person interested in the Philippines be given notice, ofthe time and place of
examining the herein account, as herein executor is the only devisee or legatee of

the deceased Linnie Jane Hodges, in accordance with the last will and testament
ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc.
No. 1307, pp. 90-91; emphasis supplied.)
15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not
only by law, but in accordance with the dispositions of her will, there was, in fact, no
need to liquidate the conjugal estate of the spouses. The entirely of said conjugal
estate pertained to him exclusively, therefore this Honorable Court sanctioned and
authorized, as above-stated, C. N. Hodges to manage, operate and control all the
conjugal assets as owner.
16. By expressly authorizing C. N. Hodges to act as he did in connection with the
estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole
heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate
to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will.
Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical
personality, it had no assets or properties located in the Philippines registered in its
name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.
17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as
follows:
"At the death of my said husband, Charles Newton Hodges, I give,
devise and bequeath all of the rest, residue and remainder of my
estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Sadie Rascoe, Era Boman and Nimray
Higdon."
Because of the facts hereinabove set out there is no "rest, residue and remainder", at
least to the extent of the Philippine assets, which remains to vest in the HIGDONS,
assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the
estate of C. N. Hodges.
18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane
Hodges' Will is without merit because said provision is void and invalid at least as to
the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N.
Hodges or his heirs to the properties, which C. N. Hodges acquired by way of
inheritance from his wife Linnie Jane Hodges upon her death.
(a) In spite of the above-mentioned provision in the Will of Linnie
Jane Hodges, C. N. Hodges acquired, not merely a usufructuary
right, but absolute title and ownership to her estate. In a recent case
involving a very similar testamentary provision, the Supreme Court
held that the heir first designated acquired full ownership of the
property bequeathed by the will, not mere usufructuary rights.
(Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G.
R. No. L-13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide
that no charge, condition or substitution whatsoever upon the legitime
can be imposed by a testator. Thus, under the provisions of Articles
900, 995 and 1001 of the New Civil Code, the legitime of a surviving
spouse is 1/2 of the estate of the deceased spouse. Consequently,
the above-mentioned provision in the Will of Linnie Jane Hodges is
clearly invalid insofar as the legitime of C. N. Hodges was concerned,
which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4
of the entire conjugal estate of the deceased.
(c) There are generally only two kinds of substitution provided for and
authorized by our Civil Code (Articles 857-870), namely, (1) simple or
common substitution, sometimes referred to as vulgar substitution
(Article 859), and (2) fideicommissary substitution (Article 863). All
other substitutions are merely variations of these. The substitution
provided for by paragraph four of the Will of Linnie Jane Hodges is
not fideicommissary substitution, because there is clearly no
obligation on the part of C. N. Hodges as the first heir designated, to
preserve the properties for the substitute heirs. (Consolacion
Florentino de Crisologo et al. vs. Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution. However, in
order that a vulgar orsimple substitution can be valid, three alternative
conditions must be present, namely, that the first designated heir (1)
should die before the testator; or (2) should not wish to accept the
inheritance; or (3) should be incapacitated to do so. None of these
conditions apply to C. N. Hodges, and, therefore, the substitution
provided for by the above-quoted provision of the Will is not
authorized by the Code, and, therefore, it is void. Manresa,
commenting on these kisses of substitution, meaningfully stated that:
"... cuando el testador instituyeun primer heredero, y por fallecimiento
de este nombra otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso de
que el primer instituido muera antes que el testador, fuera o no esta
su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other
words, when another heir is designated to inherit upon the death of a
first heir, the second designation can have effect only in case the first
instituted heir dies before the testator, whether or not that was the
true intention of said testator. Since C. N. Hodges did not die before
Linnie Jane Hodges, the provision for substitution contained in Linnie
Jane Hodges' Willis void.
(d) In view of the invalidity of the provision for substitution in the Will,
C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges
estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal
estate appeared and was registered in him exclusively as owner. Thus, the
presumption is that all said assets constituted his estate. Therefore
(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of
the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which
can not be affected by any testamentary disposition), their remedy, if any, is to file

their claim against the estate of C. N. Hodges, which should be entitled at the
present time to full custody and control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate exercises
an officious right to object and intervene in matters affecting exclusively the C. N.
Hodges estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after trial and reception of
evidence, this Honorable Court declare:
1. That the estate of Linnie Jane Hodges was and is composed exclusively of onehalf (1/2) share in the conjugal estate of the spouses Hodges, computed as of the
date of her death on May 23, 1957;
2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as
his share as partner in the conjugal partnership;
3. That all "rents, emoluments and income" of the conjugal estate accruing after
Linnie Jane Hodges' death pertains to C. N. Hodges;
4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane
Hodges;
5. That, therefore, the entire conjugal estate of the spouses located in the
Philippines, plus all the "rents, emoluments and income" above-mentioned, now
constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon
termination of Special Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and
exclusive custody, control and management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as
well as the HIGDONS, has no right to intervene or participate in the administration of
the C. N. Hodges estate.
PCIB further prays for such and other relief as may be deemed just and equitable in
the premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private
respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie
Jane Hodges" as follows:
COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through
undersigned counsel, unto this Honorable Court most respectfully states and
manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were
American citizens who died at the City of Iloilo after having amassed and
accumulated extensive properties in the Philippines;
2. That on November 22, 1952, Linnie Jane Hodges executed a last will and
testament (the original of this will now forms part of the records of these proceedings
as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time
survived by her husband, Charles Newton Hodges, and several relatives named in
her last will and testament;
4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard,
this Honorable Court issued an order admitting to probate the last will and testament
of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);
5. That the required notice to creditors and to all others who may have any claims
against the decedent, Linnie Jane Hodges has already been printed, published and
posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing
such claims has long ago lapsed and expired without any claims having been
asserted against the estate of Linnie Jane Hodges, approved by the
Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges already admitted to probate
contains an institution of heirs in the following words:
"SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated or
located, to my beloved husband, Charles Newton Hodges to have
and to hold unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton
Hodges, shall have the right to manage, control, use and enjoy said
estate during his lifetime, and, he is hereby given the right to make
any changes in the physical properties of said estate, by sale of any
part thereof which he may think best, and the purchase of any other
or additional property as he may think best; to execute conveyances
with or without general or special warranty, conveying in fee simple or
for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he elect to
sell. All rents, emoluments and income from said estate shall belong
to him, and he is further authorized to use any part of the principal of
said estate as he may need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of Lubbock
Texas, but he shall have the full right to lease, manage and enjoy the
same during his lifetime, above provided. He shall have the right to
subdivide any farm land and sell lots therein, and may sell
unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges,


I give, devise and bequeath all of the rest, residue and remainder of
my estate, both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie
Rascoe, Era Boman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters
named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the heirs
of such deceased brother or sister shall take jointly the share which
would have gone to such brother or sister had she or he survived."
7. That under the provisions of the last will and testament already above-quoted,
Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her
husband, Charles Newton Hodges, and a vested remainder-estate or the naked title
over the same estate to her relatives named therein;
8. That after the death of Linnie Jane Hodges and after the admission to probate of
her last will and testament, but during the lifetime of Charles Newton Hodges, the
said Charles Newton Hodges with full and complete knowledge of the life-estate or
usufruct conferred upon him by the will since he was then acting as Administrator of
the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and
clearly through oral and written declarations and sworn public statements,
renounced, disclaimed and repudiated his life-estate and usufruct over the estate of
Linnie Jane Hodges;
9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges
pursuant to her last will and testament, are her named brothers and sisters, or their
heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David
Higdon, the latter two being the wife and son respectively of the deceased Roy
Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American
citizens, with residence at the State of Texas, United States of America;
10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was
the co-owner (together with her husband Charles Newton Hodges) of an undivided
one-half interest in their conjugal properties existing as of that date, May 23, 1957,
which properties are now being administered sometimes jointly and sometimes
separately by the Administratrix of the estate of Linnie Jane Hodges and/or the
Administrator of the estate of C. N. Hodges but all of which are under the control and
supervision of this Honorable Court;
11. That because there was no separation or segregation of the interests of husband
and wife in the combined conjugal estate, as there has been no such separation or
segregation up to the present, both interests have continually earned exactly the
same amount of "rents, emoluments and income", the entire estate having been
continually devoted to the business of the spouses as if they were alive;
12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate
was earning "rents, emoluments and income" until her death on May 23, 1957, when

it ceased to be saddled with any more charges or expenditures which are purely
personal to her in nature, and her estate kept on earning such "rents, emoluments
and income" by virtue of their having been expressly renounced, disclaimed and
repudiated by Charles Newton Hodges to whom they were bequeathed for life under
the last will and testament of Linnie Jane Hodges;
13. That, on the other hand, the one-half interest of Charles Newton Hodges in the
combined conjugal estate existing as of May 23, 1957, while it may have earned
exactly the same amount of "rents, emoluments and income" as that of the share
pertaining to Linnie Jane Hodges, continued to be burdened by charges,
expenditures, and other dispositions which are purely personal to him in nature, until
the death of Charles Newton Hodges himself on December 25, 1962;
14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and
Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is
clearly entitled to a portion more than fifty percent (50%) as compared to the portion
to which the estate of Charles Newton Hodges may be entitled, which portions can
be exactly determined by the following manner:
a. An inventory must be made of the assets of the combined conjugal
estate as they existed on the death of Linnie Jane Hodges on May
23, 1957 one-half of these assets belong to the estate of Linnie
Jane Hodges;
b. An accounting must be made of the "rents, emoluments and
income" of all these assets again one-half of these belong to the
estate of Linnie Jane Hodges;
c. Adjustments must be made, after making a deduction of charges,
disbursements and other dispositions made by Charles Newton
Hodges personally and for his own personal account from May 23,
1957 up to December 25, 1962, as well as other charges,
disbursements and other dispositions made for him and in his behalf
since December 25, 1962 up to the present;
15. That there remains no other matter for disposition now insofar as the estate of
Linnie Jane Hodges is concerned but to complete the liquidation of her estate,
segregate them from the conjugal estate, and distribute them to her heirs pursuant to
her last will and testament.
WHEREFORE, premises considered, it is most respectfully moved and prayed that
this Honorable Court, after a hearing on the factual matters raised by this motion,
issue an order:
a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard
Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon,
as the sole heirs under the last will and testament of Linnie Jane Hodges and as the
only persons entitled to her estate;
b. Determining the exact value of the estate of Linnie Jane Hodges in accordance
with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal
estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for
distribution to the heirs to whom they properly belong and appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been
doing before, petitioner withdrew the said motion and in addition to opposing the above motion of
respondent Magno, filed a motion on April 22, 1966 alleging in part that:
1. That it has received from the counsel for the administratrix of the supposed estate
of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of
the Estate of Linnie Jane Hodges";
2. That before the aforesaid motion could be heard, there are matters pending before
this Honorable Court, such as:
a. The examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno that Charles
Newton Hodges "through ... written declarations and sworn public
statements, renounced, disclaimed and repudiated life-estate and
usufruct over the estate of Linnie Jane Hodges';
b. That "Urgent Motion for An Accounting and Delivery to the Estate
of C. N. Hodges of All the Assets of the Conjugal Partnership of the
Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May
23, 1957 Plus All the Rents, Emoluments and Income Therefrom";
c. Various motions to resolve the aforesaid motion;
d. Manifestation of September 14, 1964, detailing acts of interference
of Avelina Magno under color of title as administratrix of the Estate of
Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of fact, all facts involved therein
being matters of record, and therefore require only the resolution of questions of law;
3. That whatever claims any alleged heirs or other persons may have could be very
easily threshed out in the Testate Estate of Charles Newton Hodges;
4. That the maintenance of two separate estate proceedings and two administrators
only results in confusion and is unduly burdensome upon the Testate Estate of
Charles Newton Hodges, particularly because the bond filed by Avelina Magno is
grossly insufficient to answer for the funds and property which she has inofficiously
collected and held, as well as those which she continues to inofficiously collect
and hold;
5. That it is a matter of record that such state of affairs affects and inconveniences
not only the estate but also third-parties dealing with it;" (Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier
motion of September 14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account for and deliver to the administrator of
the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased
Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income
therefrom;
2. Pending the consideration of this motion, immediately order Avelina Magno to turn
over all her collections to the administrator Philippine Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;
4. Defer the hearing and consideration of the motion for declaration of heirs in the
Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied
the foregoing motion, holding thus:
ORDER
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1) Immediately order Avelina Magno to account for
and deliver to the administrator of the estate of C. N. Hodges all assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all
the rents, emoluments and income therefrom; (2) Pending the consideration of this
motion, immediately order Avelina Magno to turn over all her collections to the
administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc.
No. 1307) closed; and (4) Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters
hereinabove set forth are resolved.
This motion is predicated on the fact that there are matters pending before this court
such as (a) the examination already ordered by this Honorable Court of documents
relating to the allegation of Avelina Magno that Charles Newton Hodges thru written
declaration and sworn public statements renounced, disclaimed and repudiated his
life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion
for accounting and delivery to the estate of C. N. Hodges of all the assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing
as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various
motions to resolve the aforesaid motion; and (d) manifestation of September 14,
1964, detailing acts of interference of Avelina Magno under color of title as
administratrix of the estate of Linnie Jane Hodges.
These matters, according to the instant motion, are all pre-judicial involving no issues
of facts and only require the resolution of question of law; that in the motion of
October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty.
Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N.
Hodges is not only part owner of the properties left as conjugal but also the
successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with
the wishes contained in the last will and testament of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the inventory and accounting submitted
by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959
stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie
Jane Hodges in accordance with the last will and testament already probated by the
Court.
That on July 13, 1960 the Court approved the annual statement of accounts
submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21,
1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or
legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court
approved the annual statement of accounts submitted by executor, C. N. Hodges for
the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is
stated that executor Hodges is the only devisee or legatee of the deceased Linnie
Jane Hodges;
That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges
claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and
C. N. Hodges situated in the Philippines; that administratrix Magno has executed
illegal acts to the prejudice of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix
Magno has been filed asking that the motion be denied for lack of merit and that the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set
for presentation and reception of evidence.
It is alleged in the aforesaid opposition that the examination of documents which are
in the possession of administratrix Magno can be made prior to the hearing of the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during
said hearing.
That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other
motion) dated September 14, 1964 have been consolidated for the purpose of
presentation and reception of evidence with the hearing on the determination of the
heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that
the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is
the one that constitutes a prejudicial question to the motions dated October 5 and
September 14, 1964 because if said motion is found meritorious and granted by the
Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become
moot and academic since they are premised on the assumption and claim that the
only heir of Linnie Jane Hodges was C. N. Hodges.
That the PCIB and counsel are estopped from further questioning the determination
of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early
as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane
Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in
the administration proceedings over the estate of Linnie Jane Hodges and not that of
C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not
the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been
filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek
deferment of the hearing and consideration of the motion for official declaration of
heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges
closed and for administratrix Magno to account for and deliver to the PCIB all assets
of the conjugal partnership of the deceased spouses which has come to her
possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19,
1966 has been filed alleging that the motion dated December 11, 1957 only sought
the approval of all conveyances made by C. N. Hodges and requested the Court
authority for all subsequent conveyances that will be executed by C. N. Hodges; that
the order dated December 14, 1957 only approved the conveyances made by C. N.
Hodges; that C. N. Hodges represented by counsel never made any claim in the
estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir
of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the
death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can
be no order of adjudication of the estate unless there has been a prior express
declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane
Hodges (Sp. 1307) has been made.
Considering the allegations and arguments in the motion and of the PCIB as well as
those in the opposition and rejoinder of administratrix Magno, the Court finds the
opposition and rejoinder to be well taken for the reason that so far there has been no
official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore
no disposition of her estate.
WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter
alia that:
It cannot be over-stressed that the motion of December 11, 1957 was based on the
fact that:
a. Under the last will and testament of the deceased, Linnie Jane
Hodges, the late Charles Newton Hodges was the sole heir instituted
insofar as her properties in the Philippines are concerned;
b. Said last will and testament vested upon the said late Charles
Newton Hodges rights over said properties which, in sum, spell
ownership, absolute and in fee simple;
c. Said late Charles Newton Hodges was, therefore, "not only part
owner of the properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges.
Likewise, it cannot be over-stressed that the aforesaid motion was granted by this
Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton Hodges,
but also all "the subsequent sales, conveyances, leases, and mortgages ..." be
approved and authorized. This Honorable Court, in its order of December 14, 1957,
"for the reasons stated" in the aforesaid motion, granted the same, and not only
approved all the sales, conveyances, leases and mortgages of all properties left by
the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but
also authorized "all subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges. (Annex "X", Petition)
and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been
factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him,
as sole universal heir of all the properties of the estate of his wife, in the order of December 14,
1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for
reconsideration and held that "the court believes that there is no justification why the order of
October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of
respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already
referred to above, was set for hearing.
In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit
petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were
issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below).
Together with such petition, there are now pending before Us for resolution herein, appeals from the
following:
1. The order of December 19, 1964 authorizing payment by respondent Magno of
overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent
orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and
February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration
thereof.
2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by
petitioner to be co-signed by respondent Magno, as well as the order of October 27,
1965 (pp. 276-277) denying reconsideration.
3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all
collections in a joint account and the same order of February 15, 1966 mentioned in
No. 1 above which included the denial of the reconsideration of this order of October
27, 1965.
4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of
attorney's fees, fees of the respondent administratrix, etc. and the order of February
16, 1966 denying reconsideration thereof.
5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western
Institute of Technology to make payments to either one or both of the administrators
of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying
reconsideration.
6. The various orders hereinabove earlier enumerated approving deeds of sale
executed by respondent Magno in favor of appellees Carles, Catedral, Pablito,

Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to
37 of this opinion), together with the two separate orders both dated December 2,
1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying
reconsideration of said approval.
7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal,
approving similar deeds of sale executed by respondent Magno, as those in No. 6, in
favor of appellees Pacaonsis and Premaylon, as to which no motion for
reconsideration was filed.
8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal,
directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito,
Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering
the lands involved in the approved sales, as to which no motion for reconsideration
was filed either.
Strictly speaking, and considering that the above orders deal with different matters, just as they
affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on
pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason,
petitioner has to pay also thirty-one (31) more docket fees.
It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals,
petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions
and arguments under all of them covering also the fundamental issues raised in respect to the
petition for certiorari and prohibition, thus making it feasible and more practical for the Court to
dispose of all these cases together. 4
The assignments of error read thus:
I to IV
THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
V to VIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR
OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF
LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH
THE ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP
OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES,

ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA,


WHILE ACTING AS A PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
XVI to XVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR
OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS
OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE
WITH THE ORIGINAL CONTRACTS TO SELL.
XIX to XXI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP
OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO.
102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE
ACTING AS A PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
XXVI to XXIX
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE
EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE
PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO
CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP
OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE
COURT.
XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR
OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO,
ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN
THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and
P4,428.90, RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES
NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH
HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN
FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL
EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES,
THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED
WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES
NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS
ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS
TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE
SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE
COURT.

L
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR
OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN
THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH
HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE
AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF
THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT
EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED
BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL,
SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965,
WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE
APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.
LXIII
THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF
THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER
3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING
THEREOF WAS FOR NOVEMBER 20, 1965.
LXIV
THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN

ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR


GENERAL RELIEF CONTAINED THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT
TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.
LXVI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL
PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A
PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY
THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT
TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON
HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED
ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S
FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXIX
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S
FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES.
LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT
BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES, AND THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION
OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF RETAINER'S FEES.
LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE
DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED
JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT,
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER
ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL
EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL
EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF
THE DECEASED, LINNIE JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION
OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION
TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A.
MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE
TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE
PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL
AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A.
MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's
Brief.)
To complete this rather elaborate, and unavoidably extended narration of the factual setting of these
cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have
respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in

her place, and that respondent court did actually order such proposed replacement, but the Court
declared the said order of respondent court violative of its injunction of August 8, 1967, hence
without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently,
Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed
administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed
the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as
administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion
alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of
Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to
the motion of respondent Magno to have it declared in contempt for disregarding the Court's
resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed
thereto a joint manifestation and motion, appearing to have been filed with respondent court,
informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already
been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges
representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against
PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as
administrator of the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the
aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve
around practically the same main issues and that it is admitted that some of them have been timely
taken, and, moreover, their final results hereinbelow to be stated and explained make it of no
consequence whether or not the orders concerned have become final by the lapsing of the
respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any
of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is alleged impropriety of the special civil action
of certiorariand prohibition in view of the existence of the remedy of appeal which it claims is proven
by the very appeals now before Us. Such contention fails to take into account that there is a
common thread among the basic issues involved in all these thirty-three appeals which, unless
resolved in one single proceeding, will inevitably cause the proliferation of more or less similar or
closely related incidents and consequent eventual appeals. If for this consideration alone, and
without taking account anymore of the unnecessary additional effort, expense and time which would
be involved in as many individual appeals as the number of such incidents, it is logical and proper to
hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In determining
whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in
instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not
enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant
circumstances of the given case, appeal would better serve the interests of justice. Obviously, the

longer delay, augmented expense and trouble and unnecessary repetition of the same work
attendant to the present multiple appeals, which, after all, deal with practically the same basic issues
that can be more expeditiously resolved or determined in a single special civil action, make the
remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the
common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the
settling of such common fundamental issues would naturally minimize the areas of conflict between
the parties and render more simple the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must
be overruled.
We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial
Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely
abused its discretion in further recognizing after December 14, 1957 the existence of the Testate
Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of
respondent Magno. Main ground for such posture is that by the aforequoted order of respondent
court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir
of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be
done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB
is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive
heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to
be done to completely close Special Proceedings 1307, hence respondent Magno should be
considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.
After carefully going over the record, We feel constrained to hold that such pose is patently
untenable from whatever angle it is examined.
To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being
read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The
declaration of heirs and distribution by the probate court of the estate of a decedent is its most
important function, and this Court is not disposed to encourage judges of probate proceedings to be
less than definite, plain and specific in making orders in such regard, if for no other reason than that
all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and
legatees, should know with certainty what are and when their respective rights and obligations
ensuing from the inheritance or in relation thereto would begin or cease, as the case may be,
thereby avoiding precisely the legal complications and consequent litigations similar to those that
have developed unnecessarily in the present cases. While it is true that in instances wherein all the
parties interested in the estate of a deceased person have already actually distributed among
themselves their respective shares therein to the satisfaction of everyone concerned and no rights of
creditors or third parties are adversely affected, it would naturally be almost ministerial for the court
to issue the final order of declaration and distribution, still it is inconceivable that the special
proceeding instituted for the purpose may be considered terminated, the respective rights of all the
parties concerned be deemed definitely settled, and the executor or administrator thereof be

regarded as automatically discharged and relieved already of all functions and responsibilities
without the corresponding definite orders of the probate court to such effect.
Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:
SECTION 1. When order for distribution of residue made. When the debts, funeral
charges, and expenses of administration, the allowance to the widow and inheritance
tax, if any, chargeable to the estate in accordance with law have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which
each is entitled, and such persons may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributees, or any of them give a bond,
in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs.
These provisions cannot mean anything less than that in order that a proceeding for the settlement
of the estate of a deceased may be deemed ready for final closure, (1) there should have been
issued already an order of distribution or assignment of the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the
"debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the
estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued
upon proper and specific application for the purpose of the interested party or parties, and not of the
court.
... it is only after, and not before, the payment of all debts, funeral charges, expenses
of administration, allowance to the widow, and inheritance tax shall have been
effected that the court should make a declaration of heirs or of such persons as are
entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol.
II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off.
Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)
xxx xxx xxx
Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule
90) what brings an intestate (or testate) proceeding to a close is the order of
distribution directing delivery of the residue to the persons entitled thereto after
paying the indebtedness, if any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders
before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication
of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957
was issued. As already stated, We are not persuaded that the proceedings leading to the issuance
of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of
even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the

law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the
petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and
mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor
Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general
advance authorization to enable said "Executor to execute subsequent sales, conveyances,
leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance
with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to
the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the
motion of December 11, 1957 on which the court predicated the order in question did not pray for
any such adjudication at all. What is more, although said motion did allege that "herein Executor
(Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as
Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines
during his lifetime", thereby indicating that what said motion contemplated was nothing more than
either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his
wife's will which were to be operative only during his lifetime or the use of his own share of the
conjugal estate, pending the termination of the proceedings. In other words, the authority referred to
in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which
permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will
before final adjudication or distribution when the rights of third parties would not be adversely
affected thereby or in the established practice of allowing the surviving spouse to dispose of his own
share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the
conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco,
Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that
Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted
allegations of said motions read together cannot be construed as a repudiation of the rights
unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have
not been disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the
premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved
the motion of appellee Western Institute of Technology by its order We have quoted earlier, it
categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings
1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by
way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on
pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the
sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were
really convinced that the order of December 14, 1957 was already the order of adjudication and
distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for
determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges
does not alter the indubitable implication of the prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her
husband and gave him what amounts to full powers of dominion over the same during his lifetime,
she imposed at the same time the condition that whatever should remain thereof upon his death
should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was
only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even
assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to
himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any
degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon
his death, for surely, no one can rightly contend that the testamentary provision in question allowed
him to so adjudicate any part of the estate to himself as to prejudice them. In other words,

irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27,
1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in
which they have been worded, could not have had the effect of an absolute and unconditional
adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his
brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that
no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of
Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact
that even if they had been notified, they could not have taken said motions to be for the final
distribution and adjudication of the estate, but merely for him to be able, pending such final
distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's
estate in accordance with the bequest in his favor, which, as already observed, may be allowed
under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate.
In any event, We do not believe that the trial court could have acted in the sense pretended by
petitioner, not only because of the clear language of the will but also because none of the interested
parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of
May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by
petitioner, We would have no hesitancy in declaring them null and void.
Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956,
(unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with
the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a
mere formality, inasmuch as said orders amounted to the order of adjudication and distribution
ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the
present one does not hold. There the trial court had in fact issued a clear, distinct and express order
of adjudication and distribution more than twenty years before the other heirs of the deceased filed
their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of
the lower court in that respect read as follows:
En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo
la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos
antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito
en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan
sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser
por un valor igual al de los bienes que correspondan a cada heredero segun el
testamento. Creo que no es obice para la terminacion del expediente el hecho de
que la administradora no ha presentado hasta ahora el inventario de los bienes;
pues, segun la ley, estan exentos de esta formalidad os administradores que son
legatarios del residuo o remanente de los bienes y hayan prestado fianza para
responder de las gestiones de su cargo, y aparece en el testamento que la
administradora Alejandra Austria reune dicha condicion.
POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de
Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado
Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del
testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano,
Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio
Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas,
Catalino y Froilan, hermanos del testador, declarando, ademas que la heredera
Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el
finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus
coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y
13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los
gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el

testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las


misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza
mencionada al principio de este auto, se haga la entrega y adjudicacion de los
bienes, conforme se dispone en el testamento y se acaba de declarar en este auto;
5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la
administracion, revelandole toda responsabilidad a la administradora, y cancelando
su fianza.
ASI SE ORDENA.
Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the
settlement of the estate of a deceased person cannot be but perfunctory.
In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not
appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the
circumstances attendant to its issuance do not suggest that such was the intention of the court, for
nothing could have been more violative of the will of Mrs. Hodges.
Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958,
1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein
executor (being) the only devisee or legatee of the deceased, in accordance with the last will and
testament already probated," there is "no (other) person interested in the Philippines of the time and
place of examining herein account to be given notice", an intent to adjudicate unto himself the whole
of his wife's estate in an absolute manner and without regard to the contingent interests of her
brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible,
much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally
speaking, the terms of his wife's will did not give him such a right. Factually, there are enough
circumstances extant in the records of these cases indicating that he had no such intention to ignore
the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and
sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even
promised that "proper accounting will be had in all these transactions" which he had submitted for
approval and authorization by the court, thereby implying that he was aware of his responsibilities
vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee:
Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges
and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.
N. Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)
Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December
31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate
earned a net income of P270,623.32, divided evenly between him and the estate of
Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for

calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of P135,311.66, exactly one-half of the net
income of his combined personal assets and that of the estate of Linnie Jane
Hodges. (pp. 91-92, id.)
Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of
Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In
the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income of P314,857.94, divided of Linnie
Jane Hodges. Pursuant to this, he filed an "individual evenly between him and the
estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income of P157,428.97,
exactly one-half of the net income of his combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 92-93, id.)
In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records
"in order (that) the heirs of deceased Roy Higdon may not think or believe they were
omitted, and that they were really and are interested in the estate of deceased Linnie
Jane Hodges".
Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share
of the conjugal partnership up to the time of his death, more than five years after that of his wife. He
never considered the whole estate as a single one belonging exclusively to himself. The only
conclusion one can gather from this is that he could have been preparing the basis for the eventual
transmission of his wife's estate, or, at least, so much thereof as he would not have been able to
dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire,
as intimated in his tax return in the United States to be more extensively referred to anon. And
assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the
basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the
rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We
might say here that We are inclined to the view that under the peculiar provisions of his wife's will,
and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole
heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon
the eventuality of his death, and whatever adjustment might be warranted should there be any such
remainder then is a matter that could well be taken care of by the internal revenue authorities in due
time.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and
December 11, 1957 and the aforementioned statements of account was the very same one who also
subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent
Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in
accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real
properties that may remain at the death of her husband, Charles Newton Hodges, the said
properties shall be equally divided among their heirs." And it appearing that said attorney was
Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the
situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own
understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a
"Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957,
etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the
oath of Hodges himself, who verified the motion. Said allegations read:
1. That the Hon. Court issued orders dated June 29, 1957, ordering the probate of
the will.
2. That in said order of the Hon. Court, the relatives of the deceased Linnie Jane
Hodges were enumerated. However, in the petition as well as in the testimony of
Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It
was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline
Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.
3. That to straighten the records, and in order the heirs of deceased Roy Higdon
may not think or believe they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon.
Court to insert the names of Aline Higdon and David Higdon, wife and son of
deceased Roy Higdon in the said order of the Hon. Court dated June 29, 1957. (pars.
1 to 3, Annex 2 of Magno's Answer Record, p. 260)
As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in
regard to the testamentary dispositions of his wife.
In connection with this point of Hodges' intent, We note that there are documents, copies of which
are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn
declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the
United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his
supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered
the pertinent question thus:
2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a statutory
interest? (X) Yes ( ) No
2d. Does the surviving spouse contemplate renouncing the will and electing to take
dower, curtesy, or a statutory interest? (X) Yes ( ) No
3. According to the information and belief of the person or persons filing the return, is
any action described under question 1 designed or contemplated? ( ) Yes (X) No
(Annex 4, Answer Record, p. 263)
and to have further stated under the item, "Description of property interests passing to surviving
spouse" the following:
None, except for purposes of administering the Estate, paying debts, taxes and other
legal charges. It is the intention of the surviving husband of deceased to distribute
the remaining property and interests of the deceased in their Community Estate to
the devisees and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid. (Annex 4, Answer
Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:


I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States
Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I
renounced and disclaimed any and all right to receive the rents, emoluments and
income from said estate, as shown by the statement contained in Schedule M at
page 29 of said return, a copy of which schedule is attached to this affidavit and
made a part hereof.
The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and
confirm, the declaration made in Schedule M of said return and hereby formally
disclaim and renounce any right on my part to receive any of the said rents,
emoluments and income from the estate of my deceased wife, Linnie Jane Hodges.
This affidavit is made to absolve me or my estate from any liability for the payment of
income taxes on income which has accrued to the estate of Linnie Jane Hodges
since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer
Record, p. 264)
Although it appears that said documents were not duly presented as evidence in the court below,
and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot
close our eyes to their existence in the record nor fail to note that their tenor jibes with Our
conclusion discussed above from the circumstances related to the orders of May 27 and December
14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their
originals found in the official files of the governments of the United States and of the Philippines,
serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges'
manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife,
We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be
declared her sole heir and that her whole estate be adjudicated to him without so much as just
annotating the contingent interest of her brothers and sisters in what would remain thereof upon his
demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well
aware of his position as executor of the will of his wife and, as such, had in mind the following
admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:
Upon the death of Bernarda in September, 1908, said lands continued to be conjugal
property in the hands of the defendant Lasam. It is provided in article 1418 of the
Civil Code that upon the dissolution of the conjugal partnership, an inventory shall
immediately be made and this court in construing this provision in connection with
section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176
of November 24, 1924) has repeatedly held that in the event of the death of the wife,
the law imposes upon the husband the duty of liquidating the affairs of the
partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado
vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs.
Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson,
17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566;
Nable Jose vs. Nable Jose, 41 Phil., 713.)
In the last mentioned case this court quoted with approval the case of Leatherwood
vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the
surviving spouse in the administration of the community property. Attention was
called to the fact that the surviving husband, in the management of the conjugal

property after the death of the wife, was a trustee of unique character who is liable
for any fraud committed by him with relation to the property while he is charged with
its administration. In the liquidation of the conjugal partnership, he had wide powers
(as the law stood prior to Act No. 3176) and the high degree of trust reposed in him
stands out more clearly in view of the fact that he was the owner of a half interest in
his own right of the conjugal estate which he was charged to administer. He could
therefore no more acquire a title by prescription against those for whom he was
administering the conjugal estate than could a guardian against his ward or a judicial
administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil
Procedure, with relation to prescription, provides that "this chapter shall not apply ...
in the case of a continuing and subsisting trust." The surviving husband in the
administration and liquidation of the conjugal estate occupies the position of a trustee
of the highest order and is not permitted by the law to hold that estate or any portion
thereof adversely to those for whose benefit the law imposes upon him the duty of
administration and liquidation. No liquidation was ever made by Lasam hence, the
conjugal property which came into his possession on the death of his wife in
September, 1908, still remains conjugal property, a continuing and subsisting trust.
He should have made a liquidation immediately (desde luego). He cannot now be
permitted to take advantage of his own wrong. One of the conditions of title by
prescription (section 41, Code of Civil Procedure) is possession "under a claim of title
exclusive of any other right". For a trustee to make such a claim would be a manifest
fraud.
And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated
everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.
PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as
adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a
wholesale and general manner, would necessarily render the said orders void for being violative of
the provisions of Rule 89 governing the manner in which such dispositions may be made and how
the authority therefor and approval thereof by the probate court may be secured. If We sustained
such a view, the result would only be that the said orders should be declared ineffective either way
they are understood, considering We have already seen it is legally impossible to consider them as
adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's
observations based on Rule 89, is that from such point of view, the supposed irregularity would
involve no more than some non-jurisdictional technicalities of procedure, which have for their evident
fundamental purpose the protection of parties interested in the estate, such as the heirs, its
creditors, particularly the government on account of the taxes due it; and since it is apparent here
that none of such parties are objecting to said orders or would be prejudiced by the unobservance by
the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor
impediment to Our giving sanction to the blanket approval and authority contained in said orders.
This solution is definitely preferable in law and in equity, for to view said orders in the sense
suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of
Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and,
withal, will give peace of mind and stability of rights to the innocent parties who relied on them in
good faith, in the light of the peculiar pertinent provisions of the will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as
consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto
attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in the
records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that
the same consists of considerable real and other personal kinds of properties. And since, according
to her will, her husband was to be the sole owner thereof during his lifetime, with full power and

authority to dispose of any of them, provided that should there be any remainder upon his death,
such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much
less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications
are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that,
upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our
conclusion, therefore, that properties do exist which constitute such estate, hence Special
Proceedings 1307 should not yet be closed.
Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said
proceeding. There is no showing that she has ever been legally removed as such, the attempt to
replace her with Mr. Benito Lopez without authority from the Court having been expressly held
ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is
very emphatic in stressing that it is not questioning said respondent's status as such administratrix.
Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a
complete stranger insofar as the estate of Mrs. Hodges is concerned.
It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their
conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the
same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate
of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of
Hodges, who should administer everything, and all that respondent Magno can do for the time being
is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly
segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate
Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in
the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally
has no right to take part in the proceedings pending the establishment of his right or title; for which
as a rule it is required that an ordinary action should be filed, since the probate court is without
jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one
hand, and a third party or even an heir claiming adversely against the estate, on the other.
We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein
cannot be compared with the claim of a third party the basis of which is alien to the pending probate
proceedings. In the present cases what gave rise to the claim of PCIB of exclusive ownership by the
estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges
in the community properties, were the orders of the trial court issued in the course of the very
settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957
so often mentioned above. In other words, the root of the issue of title between the parties is
something that the court itself has done in the exercise of its probate jurisdiction. And since in the
ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively
to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that
respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it
was within the competence of the court to issue the root orders, why should it not be within its
authority to declare their true significance and intent, to the end that the parties may know whether
or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of
Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will?
At this point, it bears emphasis again that the main cause of all the present problems confronting the
courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's
estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five
years, the final adjudication of her estate and the closure of the proceedings. The record is bare of
any showing that he ever exerted any effort towards the early settlement of said estate. While, on the
one hand, there are enough indications, as already discuss that he had intentions of leaving intact

her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death,
pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own
half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the
other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion
of the inheritance that should appertain to his co-heirs upon his death. Having these considerations
in mind, it would be giving a premium for such procrastination and rather unfair to his co-heirs, if the
administrator of his estate were to be given exclusive administration of all the properties in question,
which would necessarily include the function of promptly liquidating the conjugal partnership, thereby
identifying and segregating without unnecessary loss of time which properties should be considered
as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are
supposed to inherit equally among themselves.
To be sure, an administrator is not supposed to represent the interests of any particular party and his
acts are deemed to be objectively for the protection of the rights of everybody concerned with the
estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone,
there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently
implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration
should be granted that the criterion in the selection of the administrator is not his impartiality alone
but, more importantly, the extent of his interest in the estate, so much so that the one as