EN BANC On June 18, 2001, private respondent filed his answer with counter-
[G.R. No. 158466. June 15, 2004] protest[5] vehemently denying that he engaged in massive vote buying. He also
PABLO V. OCAMPO, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL AND MARIO B. CRESPO a.k.a. MARK JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The wreath of victory cannot be transferred from the disqualified winner to
the repudiated loser because the law then as now only authorizes a declaration of
election in favor of the person who obtained a plurality of votes and does not
entitle a candidate receiving the next highest number of votes to be declared
elected.[1]
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, filed by petitioner Pablo V. Ocampo. He alleged that the
House of Representatives Electoral Tribunal (HRET), herein public respondent,
committed grave abuse of discretion in issuing in HRET Case No. 01-024, Pablo
Ocampo vs. Mario Mark Jimenez Crespo, the (a)Resolution[2] dated March 27,
2003 holding that protestant (herein petitioner) cannot be proclaimed the duly
elected Representative of the 6th District of Manila since being a second placer, he
cannot be proclaimed the first among the remaining qualified candidates;
and (b) Resolution[3] dated June 2, 2003 denying his motion for reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers proclaimed private
respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly elected Congressman
of the 6th District of Manila pursuant to the May 14, 2001 elections. He was
credited with 32,097 votes or a margin of 768 votes over petitioner who obtained
31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral
protest[4] against private respondent, impugning the election in 807 precincts in
the 6th District of Manila on the following grounds: (1) misreading of votes garnered
by petitioner; (2) falsification of election returns; (3) substitution of election
returns; (4) use of marked, spurious, fake and stray ballots; and (5)presence of
ballots written by one person or two persons. The case was docketed
as HRET Case No. 01-024. Petitioner prayed that a revision and appreciation of
the ballots in the 807 contested precincts be conducted; and that, thereafter, he be
proclaimed the duly elected Congressman of the 6th District of Manila.
opposed petitioners allegation that there is a need for the revision and appreciation
of ballots.
After the preliminary conference between the parties on July 12, 2001,
the HRET issued a Resolution[6] limiting the issues to: first, whether massive vote-
buying was committed by private respondent; and second, whether petitioner can
be proclaimed the duly elected Representative of the 6th District of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-
020, Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-
023, Rosenda Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring
that private respondent is ineligible for the Office of Representative of Sixth
District of Manila for lack of residence in the district and ordering him to
vacate his office.[7] Private respondent filed a motion for reconsideration but was
denied.[8]
On March 12, 2003, petitioner filed a motion to implement Section 6 of
Republic Act No. 6646,[9] which reads:
Section 6. Effects of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof, order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Petitioner averred that since private respondent was declared disqualified
in HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be
counted. And having garnered the second highest number of votes, he (petitioner)
should be declared the winner in the May 14, 2001 elections and proclaimed the
duly elected Congressman of the 6th District of Manila.
On March 26, 2003, private respondent filed an opposition to petitioners
motion to implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that private
respondent was guilty of vote-buying and disqualifying him as Congressman of the
6th District of Manila. Anent the second issue of whether petitioner can be
proclaimed the duly elected Congressman, the HRET held:
x x x Jurisprudence has long established the doctrine that a second placer
cannot be proclaimed the first among the remaining qualified
candidates. The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily give the candidate who obtained the
second highest number of votes the right to be declared the winner of the
elective office. x x x
It is of no moment that there is only a margin of 768 votes between protestant and
protestee. Whether the margin is ten or ten thousand, it still remains that
protestant did not receive the mandate of the majority during the elections. Thus,
to proclaim him as the duly elected representative in the stead of protestee would
be anathema to the most basic precepts of republicanism and democracy as
enshrined within our Constitution. In effect, we would be advocating a massive
disenfranchisement of the majority of the voters of the sixth district of Manila.
Congressional elections are different from local government elections. In local
government elections, when the winning candidate for governor or mayor is
subsequently disqualified, the vice-governor or the vice-mayor, as the case may
be, succeeds to the position by virtue of the Local Government Code. It is different
in elections for representative. When a voter chooses his congressional candidate,
he chooses only one. If his choice is concurred in by the majority of voters, that
candidate is declared the winner. Voters are not afforded the opportunity of
electing a substitute congressman in the eventuality that their first choice dies,
resigns, is disqualified, or in any other way leaves the post vacant. There can only
be one representative for that particular legislative district. There are no runners-
up or second placers. Thus, when the person vested with the mandate of the
majority is disqualified from holding the post he was elected to, the only recourse
to ascertain the new choice of the electorate is to hold another election. x x x
This does not mean that the Sixth Legislative District of Manila will be without
adequate representation in Congress. Article VI, Section 9 of the Constitution, and
Republic Act No. 6645 allows Congress to call a special election to fill up this
vacancy. There are at least 13 months until the next congressional elections,
which is more than sufficient time within which to hold a special election to enable
the electorate of the Sixth District of Manila to elect their representative.
For this reason, the Tribunal holds that protestant cannot be proclaimed as the
duly elected representative of the Sixth legislative District of Manila.
In view of the conclusion herein reached, it is unnecessary to rule on the
recount and revision of ballots in the protested and counter-protested
precincts.
WHEREFORE, the Tribunal Resolved to:
xxxxxx
2) DENY protestants (petitioner) Motion to Implement Section 6, Republic Act No.
6646 by declaring the votes cast for Mario Crespo as stray votes.
Petitioner filed a partial motion for reconsideration but was denied. Hence,
the present petition for certiorari.
Petitioner contends that the HRET committed grave abuse of discretion when
it ruled that it is unnecessary to rule on the recount and revision of ballots in
the protested and counter-protested precincts. He maintains that it is the
ministerial duty of the HRET to implement the provisions of Section 6, R.A. No.
6646 specifically providing that any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted.
In his comment, private respondent counters that what the law requires is
that the disqualification by final judgment takes place before the
election. Here, the HRET Resolutions disqualifying him as Representative of the
6th District of Manila were rendered long after the May 14, 2001 elections. He
also claims that the Resolutions are not yet final and executory because they are
the subjects of certiorari proceedings before this Court. Hence, all his votes shall
be counted and none shall be considered stray.
The HRET, in its comment, through the Office of the Solicitor General, merely
reiterates its ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of private respondent
should not be counted pursuant to Section 6 of R.A. No. 6646; and (2) whether
petitioner, a second placer in the May 14, 2001 congressional elections, can be
proclaimed the duly elected Congressman of the 6th District of Manila.
 The issues raised are not novel. In Codilla, Sr. vs. De Venecia,[10] we
expounded on the application of Section 6, R.A. No. 6646. There, we emphasized
that there must be a final judgment before the election in order that the votes of
a disqualified candidate can be considered stray, thus:
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate to
be considered stray. Hence, when a candidate has not yet been disqualified by
final judgment during the election day and was voted for, the votes cast in his favor
cannot be declared stray. To do so would amount to disenfranchising the
electorate in whom sovereignty resides.
The obvious rationale behind the foregoing ruling is that in voting for a
candidate who has not been disqualified by final judgment during the election
day, the people voted for him bona fide, without any intention to misapply
their franchise, and in the honest belief that the candidate was then qualified
to be the person to whom they would entrust the exercise of the powers of
government.[11]
In the present case, private respondent was declared disqualified almost
twenty-two (22) months after the May 14, 2001 elections. Obviously, the
requirement of final judgment before election is absent. Therefore, petitioner can
not invoke Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled jurisprudence that the
subsequent disqualification of a candidate who obtained the highest number of
votes does not entitle the candidate who garnered the second highest number of
votes to be declared the winner.[12] This principle has been reiterated in a number
our decisions, such as Labo, Jr. vs. COMELEC,[13]Abella vs. COMELEC,[14] Benito
vs. COMELEC[15] and Domino vs. COMELEC.[16] As a matter of fact, even as early
as 1912, it was held that the candidate who lost in an election cannot be
proclaimed the winner in the event that the candidate who won is found to be
ineligible for the office for which he was elected.[17]
In Geronimo vs. Ramos,[18] if the winning candidate is not qualified and
cannot qualify for the office to which he was elected, a permanent vacancy is thus
created. The second placer is just that, a second placer he lost in the elections, he
was repudiated by either the majority or plurality of voters. He could not be
proclaimed winner as he could not be considered the first among the qualified
candidates. To rule otherwise is to misconstrue the nature of the
democratic electroral process and the sociological and psychological
underpinnings behind voters preferences.[19]
At any rate, the petition has become moot and academic. The Twelfth
Congress formally adjourned on June 11, 2004. And on May 17, 2004, the City
Board of Canvassers proclaimed Bienvenido Abante the duly elected
Congressman of the Sixth District of Manila pursuant to the May 10,
2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal,[20] we ruled that a
case becomes moot and academic when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the
merits. Worth reiterating is our pronouncement in Gancho-on vs. Secretary of
Labor and Employment, thus:[21]
It is a rule of universal application, almost, that courts of justice constituted to pass
upon substantial rights will not consider questions in which no actual interests are
involved; they decline jurisdiction of moot cases. And where the issue has become
moot and academic, there is no justiciable controversy, so that a declaration
thereon would be of no practical use or value. There is no actual substantial relief
to which petitioner would be entitled and which would be negated by the dismissal
of the petition.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Puno, J., no part. Participated in HRET case.
Vitug, J., on official leave.
Panganiban, J., no part. Participated in deliberations in HRET.
Quisumbing, J., no part prior action in HRET.
Ynares-Santiago, J., on leave.
Corona, J., on official leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 195649 July 2, 2013
CASAN MACODE MACQUILING, PETITIONER,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG
G. BALUA. RESPONDENTS.
RESOLUTION
SERENO, J.:
This Resolution resolves the Motion for Reconsideration filed by respondent on
May 10, 2013 and the Supplemental Motion for Reconsideration filed on May 20,
2013.
We are not unaware that the term of office of the local officials elected in the May
2010 elections has already ended on June 30, 2010. Arnado, therefore, has
successfully finished his term of office. While the relief sought can no longer be
granted, ruling on the motion for reconsideration is important as it will either affirm
the validity of Arnados election or affirm that Arnado never qualified to run for
public office.
Respondent failed to advance any argument to support his plea for the reversal of
this Courts Decision dated April 16, 2013. Instead, he presented his
accomplishments as the Mayor of Kauswagan, Lanao del Norte and reiterated that
he has taken the Oath of Allegiance not only twice but six times. It must be
stressed, however, that the relevant question is the efficacy of his renunciation of
his foreign citizenship and not the taking of the Oath of Allegiance to the Republic
of the Philippines. Neither do his accomplishments as mayor affect the question
before this Court.
Respondent cites Section 349 of the Immigration and Naturalization Act of the
United States as having the effect of expatriation when he executed his Affidavit of
Renunciation of American Citizenship on April 3, 2009 and thus claims that he was
divested of his American citizenship. If indeed, respondent was divested of all the
rights of an American citizen, the fact that he was still able to use his US passport
after executing his Affidavit of Renunciation repudiates this claim.
The Court cannot take judicial notice of foreign laws,1 which must be presented as
public documents2 of a foreign country and must be "evidenced by an official
publication thereof."3 Mere reference to a foreign law in a pleading does not suffice
for it to be considered in deciding a case.
Respondent likewise contends that this Court failed to cite any law of the United
States "providing that a person who is divested of American citizenship thru an
Affidavit of Renunciation will re-acquire such American citizenship by using a US
Passport issued prior to expatriation."4
American law does not govern in this jurisdiction. Instead, Section 40(d) of the
Local Government Code calls for application in the case before us, given the fact
that at the time Arnado filed his certificate of candidacy, he was not only a Filipino
citizen but, by his own declaration, also an American citizen. It is the application of
this law and not of any foreign law that serves as the basis for Arnados
disqualification to run for any local elective position.
With all due respect to the dissent, the declared policy of Republic Act No. (RA)
9225 is that "all Philippine citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of this
Act."5 This policy pertains to the reacquisition of Philippine citizenship. Section
5(2)6 requires those who have re-acquired Philippine citizenship and who seek
elective public office, to renounce any and all foreign citizenship.
This requirement of renunciation of any and all foreign citizenship, when read
together with Section 40(d) of the Local Government Code7 which disqualifies
those with dual citizenship from running for any elective local position, indicates a
policy that anyone who seeks to run for public office must be solely and exclusively
a Filipino citizen. To allow a former Filipino who reacquires Philippine citizenship to
continue using a foreign passport which indicates the recognition of a foreign
state of the individual as its national even after the Filipino has renounced his
foreign citizenship, is to allow a complete disregard of this policy.
Further, we respectfully disagree that the majority decision rules on a situation of
doubt.
Indeed, there is no doubt that Section 40(d) of the Local Government Code
disqualifies those with dual citizenship from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration that
one is a citizen of the country which issued the passport, or that a passport proves
that the country which issued it recognizes the person named therein as its
national.
It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired
American citizenship by naturalization. There is no doubt that he reacquired his
Filipino citizenship by taking his Oath of Allegiance to the Philippines and that he
renounced his American citizenship. It is also indubitable that after renouncing his
American citizenship, Arnado used his U.S. passport at least six times.
If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation
of his American citizenship when he subsequently used his U.S. passport. The
renunciation of foreign citizenship must be complete and unequivocal. The
requirement that the renunciation must be made through an oath emphasizes the
solemn duty of the one making the oath of renunciation to remain true to what he
has sworn to. Allowing the subsequent use of a foreign passport because it is
convenient for the person to do so is rendering the oath a hollow act. It devalues
the act of taking of an oath, reducing it to a mere ceremonial formality.
The dissent states that the Court has effectively left Arnado "a man without a
country".1wphi1 On the contrary, this Court has, in fact, found Arnado to have
more than one. Nowhere in the decision does it say that Arnado is not a Filipino
citizen. What the decision merely points out is that he also possessed another
citizenship at the time he filed his certificate of candidacy.
Well-settled is the rule that findings of fact of administrative bodies will not be
interfered with by the courts in the absence of grave abuse of discretion on the
part of said agencies, or unless the aforementioned findings are not supported by
substantial evidence.8 They are accorded not only great respect but even finality,
and are binding upon this Court, unless it is shown that the administrative body
had arbitrarily disregarded or misapprehended evidence before it to such an extent
as to compel a contrary conclusion had such evidence been properly appreciated.9
Nevertheless, it must be emphasized that COMELEC First Division found that
Arnado used his U.S. Passport at least six times after he renounced his American
citizenship. This was debunked by the COMELEC En Banc, which found that
Arnado only used his U.S. passport four times, and which agreed with Arnados
claim that he only used his U.S. passport on those occasions because his
Philippine passport was not yet issued. The COMELEC En Banc argued that
Arnado was able to prove that he used his Philippine passport for his travels on
the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April
2010, 20 May 2010, and 4 June 2010.
None of these dates coincide with the two other dates indicated in the certification
issued by the Bureau of Immigration showing that on 21 January 2010 and on 23
March 2010, Arnado arrived in the Philippines using his U.S. Passport No.
057782700 which also indicated therein that his nationality is USA-American.
Adding these two travel dates to the travel record provided by the Bureau of
Immigration showing that Arnado also presented his U.S. passport four times
(upon departure on 14 April 2009, upon arrival on 25 June 2009, upon departure
on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum up
to six.
The COMELEC En Banc concluded that "the use of the US passport was because
to his knowledge, his Philippine passport was not yet issued to him for his
use."10 This conclusion, however, is not supported by the facts. Arnado claims that
his Philippine passport was issued on 18 June 2009. The records show that he
continued to use his U.S. passport even after he already received his Philippine
passport. Arnados travel records show that he presented his U.S. passport on 24
November 2009, on 21 January 2010, and on 23 March 2010. These facts were
never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the
facts that the use of the U.S. passport was discontinued when Arnado obtained his
Philippine passport. Arnados continued use of his U.S. passport cannot be
considered as isolated acts contrary to what the dissent wants us to believe.
It must be stressed that what is at stake here is the principle that only those who
are exclusively Filipinos are qualified to run for public office. If we allow dual
citizens who wish to run for public office to renounce their foreign citizenship and
afterwards continue using their foreign passports, we are creating a special
privilege for these dual citizens, thereby effectively junking the prohibition in
Section 40(d) of the Local Government Code.
WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED with finality.
SO ORDERED.
Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes,
and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the
dissent of J. Brion.
Brion, J., I dissent.
Footnotes
1Benedicto v. CA, G.R. No. 125359, 4 September 2001, citing Vda. de
Perez v. Tolete, 232 SCRA 722, 735 (1994), which in turn cited Philippine
Commercial and Industrial Bank v. Escolin, 58 SCRA 266 (1974).
2 See Sec. 19, Rule 132 of the Rules of Court:
SEC. 19. Classes of Documents. For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country.
3 Sec. 24, Rule 132 of the Rules of Court
SEC. 24. Proof of official record. The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied,
if the record is not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which the record is
kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his
office.
4 Motion for Reconsideration, p. 2
5 Sec. 2, RA 9225.
6 Sec. 5. Civil and Political Rights and Liabilities. Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;
7SECTION 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
[]
(d) Those with dual citizenship;
8 Raniel v. Jochico, G.R. No. 153413, 2 March 2007, 517 SCRA 221, 227,
citing Gala v. Ellice Agro-Industrial Corporation, 463 Phil. 846, 859
(2003).
9Id., citing Industrial Refractories Corporation of the Philippines v. Court
of Appeals, 439 Phil. 36, 48 (2002).
10 Rollo, p. 66.
 Republic of the Philippines city of Manila, Justo Lukban, descended upon the houses, hustled some 170
SUPREME COURT inmates into patrol wagons, and placed them aboard the steamers that awaited
Manila their arrival. The women were given no opportunity to collect their belongings, and
apparently were under the impression that they were being taken to a police
EN BANC station for an investigation. They had no knowledge that they were destined for a
life in Mindanao. They had not been asked if they wished to depart from that
G.R. No. L-14639 March 25, 1919 region and had neither directly nor indirectly given their consent to the deportation.
The involuntary guests were received on board the steamers by a representative
ZACARIAS VILLAVICENCIO, ET AL., petitioners, of the Bureau of Labor and a detachment of Constabulary soldiers. The two
vs. steamers with their unwilling passengers sailed for Davao during the night of
JUSTO LUKBAN, ET AL., respondents. October 25.

Alfonso Mendoza for petitioners. The vessels reached their destination at Davao on October 29. The women were
City Fiscal Diaz for respondents. landed and receipted for as laborers by Francisco Sales, provincial governor of
Davao, and by Feliciano Yigo and Rafael Castillo. The governor and
MALCOLM, J.: the hacendero Yigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing
The annals of juridical history fail to reveal a case quite as remarkable as the one
out of alleged ill-treatment are of public interest, but are not essential to the
which this application for habeas corpus submits for decision. While hardly to be
disposition of this case. Suffice it to say, generally, that some of the women
expected to be met with in this modern epoch of triumphant democracy, yet, after
married, others assumed more or less clandestine relations with men, others went
all, the cause presents no great difficulty if there is kept in the forefront of our
to work in different capacities, others assumed a life unknown and disappeared,
minds the basic principles of popular government, and if we give expression to the
and a goodly portion found means to return to Manila.
paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is Shall the judiciary permit
a government of the men instead of a government of laws to be set up in the To turn back in our narrative, just about the time the Corregidor and
Philippine Islands? the Negros were putting in to Davao, the attorney for the relatives and friends of a
considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application, through
Omitting much extraneous matter, of no moment to these proceedings, but which
stipulation of the parties, was made to include all of the women who were sent
might prove profitable reading for other departments of the government, the facts
away from Manila to Davao and, as the same questions concerned them all, the
are these: The Mayor of the city of Manila, Justo Lukban, for the best of all
application will be considered as including them. The application set forth the
reasons, to exterminate vice, ordered the segregated district for women of ill
salient facts, which need not be repeated, and alleged that the women were
repute, which had been permitted for a number of years in the city of Manila,
illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined
Anton Hohmann, chief of police of the city of Manila, and by certain unknown
to their houses in the district by the police. Presumably, during this period, the city
parties. The writ was made returnable before the full court. The city fiscal appeared
authorities quietly perfected arrangements with the Bureau of Labor for sending
for the respondents, Lukban and Hohmann, admitted certain facts relative to
the women to Davao, Mindanao, as laborers; with some government office for the
sequestration and deportation, and prayed that the writ should not be granted
use of the coastguard cutters Corregidor and Negros, and with the Constabulary
because the petitioners were not proper parties, because the action should have
for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
been begun in the Court of First Instance for Davao, Department of Mindanao and
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the
Sulu, because the respondents did not have any of the women under their custody
or control, and because their jurisdiction did not extend beyond the boundaries of
the city of Manila. According to an exhibit attached to the answer of the fiscal, the
170 women were destined to be laborers, at good salaries, on the haciendas of
Yigo and Governor Sales. In open court, the fiscal admitted, in answer to
question of a member of the court, that these women had been sent out of Manila
without their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police
of the city of Manila, Francisco Sales, governor of the province of Davao, and
Feliciano Yigo, an hacenderoof Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their
own expense. On motion of counsel for petitioners, their testimony was taken
before the clerk of the Supreme Court sitting as commissioners. On the day
named in the order, December 2nd, 1918, none of the persons in whose behalf the
writ was issued were produced in court by the respondents. It has been shown that
three of those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear before the
court. The fiscal appeared, repeated the facts more comprehensively, reiterated
the stand taken by him when pleading to the original petition copied a telegram
from the Mayor of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing
that the women were contained with their life in Mindanao and did not wish to
return to Manila. Respondents Sales answered alleging that it was not possible to
fulfill the order of the Supreme Court because the women had never been under
his control, because they were at liberty in the Province of Davao, and because
they had married or signed contracts as laborers. Respondent Yigo answered
alleging that he did not have any of the women under his control and that therefore
it was impossible for him to obey the mandate. The court, after due deliberation,
on December 10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the satisfaction of the court
nor explained their failure to do so, and therefore directed that those of the women
not in Manila be brought before the court by respondents Lukban, Hohmann,
Sales, and Yigo on January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance of Davao or the clerk
of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated
that the question of whether the respondents were in contempt of court would later
be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the
women, of certain detectives and policemen, and of the provincial governor of
Davao, was taken before the clerk of the Supreme Court sitting as commissioner
and the clerk of the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and eight others who
had been brought to Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further endeavored to account for
all of the persons involved in the habeas corpus. In substance, it was stated that
the respondents, through their representatives and agents, had succeeded in
bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn statements; that fifty-nine
had already returned to Manila by other means, and that despite all efforts to find
them twenty-six could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally asked the court to
find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police
force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto
Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city
of Manila, in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ
of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy
women were isolated from society, and then at night, without their consent and
without any opportunity to consult with friends or to defend their rights, were
forcibly hustled on board steamers for transportation to regions unknown. Despite
the feeble attempt to prove that the women left voluntarily and gladly, that such
was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the
shades of night to cloak their secret and stealthy acts. Indeed, this is a fact
impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By
authority of what law did the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to another distant locality within
the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an
Act of congress. The Governor-General can order the eviction of undesirable
aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission
and section 733 of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or order. But
one can search in vain for any law, order, or regulation, which even hints at the
right of the Mayor of the city of Manila or the chief of police of that city to force
citizens of the Philippine Islands and these women despite their being in a
sense lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens to change
their domicile from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly authorized by law
or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so
important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a principle so deeply imbedded
in jurisprudence and considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine Islands, even
the President of the United States, who has often been said to exercise more
power than any king or potentate, has no such arbitrary prerogative, either
inherent or express. Much less, therefore, has the executive of a municipality, who
acts within a sphere of delegated powers. If the mayor and the chief of police
could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one
thousand other municipalities of the Philippines have the same privilege. If these
officials can take to themselves such power, then any other official can do the
same. And if any official can exercise the power, then all persons would have just
as much right to do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman
shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free
customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass
upon him nor condemn him, but by lawful judgment of his peers or by the law of
the land. We will sell to no man, we will not deny or defer to any man either justice
or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No
official, no matter how high, is above the law. The courts are the forum which
functionate to safeguard individual liberty and to punish official transgressors. "The
law," said Justice Miller, delivering the opinion of the Supreme Court of the United
States, "is the only supreme power in our system of government, and every man
who by accepting office participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196,
220.) "The very idea," said Justice Matthews of the same high tribunal in another
case, "that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All
this explains the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether the courts
should permit a government of men or a government of laws to be established in
the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and
(3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may
recoup money damages. It may still rest with the parties in interest to pursue such
an action, but it was never intended effectively and promptly to meet any such
situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
Any public officer not thereunto authorized by law or by regulations of a
general character in force in the Philippines who shall banish any person
to a place more than two hundred kilometers distant from his domicile,
except it be by virtue of the judgment of a court, shall be punished by a
 fine of not less than three hundred and twenty-five and not more than
three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by
regulation of a general character in force in the Philippines who shall
compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-five
and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting
officers find that any public officer has violated this provision of law, these
prosecutors will institute and press a criminal prosecution just as vigorously as
they have defended the same official in this action. Nevertheless, that the act may
be a crime and that the persons guilty thereof can be proceeded against, is no bar
to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to "It would be a monstrous anomaly in the law if to an
application by one unlawfully confined, ta be restored to his liberty, it could be a
sufficient answer that the confinement was a crime, and therefore might be
continued indefinitely until the guilty party was tried and punished therefor by the
slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich.,
416, 434.) The writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is to set the individual
at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three
specific objections to its issuance in this instance. The fiscal has argued (l) that
there is a defect in parties petitioners, (2) that the Supreme Court should not a
assume jurisdiction, and (3) that the person in question are not restrained of their
liberty by respondents. It was finally suggested that the jurisdiction of the Mayor
and the chief of police of the city of Manila only extends to the city limits and that
perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners
were relatives and friends of the deportees. The way the expulsion was conducted
by the city officials made it impossible for the women to sign a petition for habeas
corpus. It was consequently proper for the writ to be submitted by persons in their
behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.)
The law, in its zealous regard for personal liberty, even makes it the duty of a court
or judge to grant a writ of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no
application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners
had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of
First Instance of Davao or should have been made returnable before that court. It
is a general rule of good practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable
before the Supreme Court or before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular circumstances. In this instance
it was not shown that the Court of First Instance of Davao was in session, or that
the women had any means by which to advance their plea before that court. On
the other hand, it was shown that the petitioners with their attorneys, and the two
original respondents with their attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the Islands; it was shown that the
women might still be imprisoned or restrained of their liberty; and it was shown that
if the writ was to accomplish its purpose, it must be taken cognizance of and
decided immediately by the appellate court. The failure of the superior court to
consider the application and then to grant the writ would have amounted to a
denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When
the writ was prayed for, says counsel, the parties in whose behalf it was asked
were under no restraint; the women, it is claimed, were free in Davao, and the
jurisdiction of the mayor and the chief of police did not extend beyond the city
limits. At first blush, this is a tenable position. On closer examination, acceptance
of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas corpus is restraint of
liberty. The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned. Placed in Davao
without either money or personal belongings, they were prevented from exercising
the liberty of going when and where they pleased. The restraint of liberty which
began in Manila continued until the aggrieved parties were returned to Manila and
released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The
chief executive of any municipality in the Philippines could forcibly and illegally
take a private citizen and place him beyond the boundaries of the municipality, and
then, when called upon to defend his official action, could calmly fold his hands
and claim that the person was under no restraint and that he, the official, had no
jurisdiction over this other municipality. We believe the true principle should be
that, if the respondent is within the jurisdiction of the court and has it in his power
to obey the order of the court and thus to undo the wrong that he has inflicted, he
should be compelled to do so. Even if the party to whom the writ is addressed has
illegally parted with the custody of a person before the application for the writ is no
reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to
Davao, the same officials must necessarily have the same means to return them
from Davao to Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change her
domicile and to avow the act with impunity in the courts, while the person who has
lost her birthright of liberty has no effective recourse. The great writ of liberty may
not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts
for decision. Nevertheless, strange as it may seem, a close examination of the
authorities fails to reveal any analogous case. Certain decisions of respectable
courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early
date as to whether or not a writ of habeas corpus would issue from the Supreme
Court to a person within the jurisdiction of the State to bring into the State a minor
child under guardianship in the State, who has been and continues to be detained
in another State. The membership of the Michigan Supreme Court at this time was
notable. It was composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be
quashed. Cooley, J., one of the most distinguished American judges and law-
writers, with whom concurred Christiancy, J., held that the writ should issue. Since
the opinion of Justice Campbell was predicated to a large extent on his conception
of the English decisions, and since, as will hereafter appear, the English courts
have taken a contrary view, only the following eloquent passages from the opinion
of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to
issue the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six
centuries and a half have been expended upon the Magna Charta, and
rivers of blood shed for its establishment; after its many confirmations,
until Coke could declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights
and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life and
soul of the whole instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject
being brought to their notice. . . .
The second proposition that the statutory provisions are confined to
the case of imprisonment within the state seems to me to be based
upon a misconception as to the source of our jurisdiction. It was never the
case in England that the court of king's bench derived its jurisdiction to
issue and enforce this writ from the statute. Statutes were not passed to
give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure
upon this writ is, that it is directed to and served upon, not the person
confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison
doors, and set the prisoner free, but the court relieves him by compelling
the oppressor to release his constraint. The whole force of the writ is
spent upon the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and imprisonment.
This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of
confinement is, therefore, not important to the relief, if the guilty party is
 within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the state, except
as greater distance may affect it. The important question is, where the
power of control exercised? And I am aware of no other remedy. (In the
matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other
courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo.,
117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child
had been taken out of English by the respondent. A writ of habeas corpus was
issued by the Queen's Bench Division upon the application of the mother and her
husband directing the defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed over by him
to another; that it was no longer in his custody or control, and that it was
impossible for him to obey the writ. He was found in contempt of court. On appeal,
the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January
22. That writ commanded the defendant to have the body of the child
before a judge in chambers at the Royal Courts of Justice immediately
after the receipt of the writ, together with the cause of her being taken and
detained. That is a command to bring the child before the judge and must
be obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his
having lawfully parted with the possession of the child before the issuing
of the writ, the defendant had no longer power to produce the child, that
might be an answer; but in the absence of any lawful reason he is bound
to produce the child, and, if he does not, he is in contempt of the Court for
not obeying the writ without lawful excuse. Many efforts have been made
in argument to shift the question of contempt to some anterior period for
the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before
the issue of the writ. The question is whether there has been a contempt
in disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B.
D., 305. See also to the same effect the Irish case of In re Matthews, 12
Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas
corpus was directed to the defendant to have before the circuit court of the District
of Columbia three colored persons, with the cause of their detention. Davis, in his
return to the writ, stated on oath that he had purchased the negroes as slaves in
the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they
were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a
writ of habeas corpus. The court held the return to be evasive and insufficient, and
that Davis was bound to produce the negroes, and Davis being present in court,
and refusing to produce them, ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be otherwise discharged in due
course of law. The court afterwards ordered that Davis be released upon the
production of two of the negroes, for one of the negroes had run away and been
lodged in jail in Maryland. Davis produced the two negroes on the last day of the
term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p.
170.)
We find, therefore, both on reason and authority, that no one of the defense
offered by the respondents constituted a legitimate bar to the granting of the writ
of habeas corpus.
There remains to be considered whether the respondent complied with the two
orders of the Supreme Court awarding the writ of habeas corpus, and if it be found
that they did not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of
Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were
open: (1) They could have produced the bodies of the persons according to the
command of the writ; or (2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought before the court; or
(3) they could have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was
granted; they did not show impossibility of performance; and they did not present
writings that waived the right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were contended with
their life in Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable number of
the women, at least sixty, could have been brought back to Manila is demonstrated
to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the
respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the non-
production of the persons were far from sufficient. The, authorities cited herein
pertaining to somewhat similar facts all tend to indicate with what exactitude
a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child
back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court would only
accept clear proof of an absolute impossibility by way of excuse." In other words,
the return did not show that every possible effort to produce the women was made
by the respondents. That the court forebore at this time to take drastic action was
because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give
the respondents another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were dispatched
to Mindanao, placards were posted, the constabulary and the municipal police
joined in rounding up the women, and a steamer with free transportation to Manila
was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a
failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be influenced
somewhat by our sincere desire to see this unhappy incident finally closed. If any
wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be
made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the
city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano
Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative
and not on the vindictive principle. Only occasionally should the court invoke its
inherent power in order to retain that respect without which the administration of
justice must falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt,
and must order him either imprisoned or fined. An officer's failure to produce the
body of a person in obedience to a writ of habeas corpus when he has power to do
so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77
Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible
exception of the first named, has flatly disobeyed the court by acting in opposition
to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public officers, this
does not exonerate them entirely, it is nevertheless a powerful mitigating
circumstance. The hacendero Yigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic communications. The city
fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as
the legal representative of the city government. Finding him innocent of any
disrespect to the court, his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the unlawful deportation,
who ordered the police to accomplish the same, who made arrangements for the
steamers and the constabulary, who conducted the negotiations with the Bureau of
Labor, and who later, as the head of the city government, had it within his power to
facilitate the return of the unfortunate women to Manila, was Justo Lukban, the
Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance
thereof to require respondent Lukban to forfeit to the parties aggrieved as much as
P400 each, which would reach to many thousands of pesos, and in addition to
deal with him as for a contempt. Some members of the court are inclined to this
stern view. It would also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has purged his
contempt of the first order. Some members of the court are inclined to this merciful
view. Between the two extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may
be considered only as extenuating his conduct. A nominal fine will at once
command such respect without being unduly oppressive such an amount is
P100.
In resume as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and
Diaz are found not to be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of the Supreme Court
within five days the sum of one hundred pesos (P100). The motion of the fiscal of
the city of Manila to strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to
express the hope that this decision may serve to bulwark the fortifications of an
orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the
decision of the habeas corpusproceeding against Justo Lukban, the mayor of this
city.
There is nothing in the record that shows the motive which impelled Mayor Lukban
to oblige a great number of women of various ages, inmates of the houses of
prostitution situated in Gardenia Street, district of Sampaloc, to change their
residence.
We know no express law, regulation, or ordinance which clearly prohibits the
opening of public houses of prostitution, as those in the said Gardenia Street,
Sampaloc. For this reason, when more than one hundred and fifty women were
assembled and placed aboard a steamer and transported to Davao, considering
that the existence of the said houses of prostitution has been tolerated for so long
a time, it is undeniable that the mayor of the city, in proceeding in the manner
shown, acted without authority of any legal provision which constitutes an
exception to the laws guaranteeing the liberty and the individual rights of the
residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in
complying with the order of the mayor of the city; neither do we believe in the
necessity of taking them to the distant district of Davao. The said governmental
authority, in carrying out his intention to suppress the segregated district or the
community formed by those women in Gardenia Street, could have obliged the
said women to return to their former residences in this city or in the provinces,
without the necessity of transporting them to Mindanao; hence the said official is
obliged to bring back the women who are still in Davao so that they may return to
the places in which they lived prior to their becoming inmates of certain houses in
Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court,
we do not find any apparent disobedience and marked absence of respect in the
steps taken by the mayor of the city and his subordinates, if we take into account
the difficulties encountered in bringing the said women who were free at Davao
and presenting them before this court within the time fixed, inasmuch as it does
not appear that the said women were living together in a given place. It was not
because they were really detained, but because on the first days there were no
houses in which they could live with a relative independent from one another, and
as a proof that they were free a number of them returned to Manila and the others
succeeded in living separate from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object
and whether he has acted in good or bad faith in proceeding to dissolve the said
community of prostitutes and to oblige them to change their domicile, it is
necessary to consider not only the rights and interests of the said women and
especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous people of Manila where
relatively a few transients accidentally and for some days reside, the inhabitants
thereof being more than three hundred thousand (300,000) who can not, with
indifference and without repugnance, live in the same place with so many
unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of
social morality are to be taken into account, it is not possible to sustain that it is
legal and permissible to establish a house of pandering or prostitution in the midst
of an enlightened population, for, although there were no positive laws prohibiting
the existence of such houses within a district of Manila, the dictates of common
sense and dictates of conscience of its inhabitants are sufficient to warrant the
public administration, acting correctly, in exercising the inevitable duty of ordering
the closing and abandonment of a house of prostitution ostensibly open to the
public, and of obliging the inmates thereof to leave it, although such a house is
inhabited by its true owner who invokes in his behalf the protection of the
constitutional law guaranteeing his liberty, his individual rights, and his right to
property.
A cholera patient, a leper, or any other person affected by a known contagious
disease cannot invoke in his favor the constitutional law which guarantees his
liberty and individual rights, should the administrative authority order his
hospitalization, reclusion, or concentration in a certain island or distant point in
order to free from contagious the great majority of the inhabitants of the country
who fortunately do not have such diseases. The same reasons exist or stand good
with respect to the unfortunate women dedicated to prostitution, and such reasons
become stronger because the first persons named have contracted their diseases
without their knowledge and even against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of living and spontaneously accepted
all its consequences, knowing positively that their constant intercourse with men of
all classes, notwithstanding the cleanliness and precaution which they are wont to
adopt, gives way to the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease among men and
women, is still prejudicial to the human species in the same degree, scope, and
seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious
diseases which produce great mortality and very serious prejudice to poor
humanity.
If a young woman, instead of engaging in an occupation or works suitable to her
sex, which can give her sufficient remuneration for her subsistence, prefers to put
herself under the will of another woman who is usually older than she is and who is
the manager or owner of a house of prostitution, or spontaneously dedicates
herself to this shameful profession, it is undeniable that she voluntarily and with
her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent
women nor can she expect to get the same respect that is due to the latter, nor is it
possible for her to live within the community or society with the same liberty and
rights enjoyed by every citizen. Considering her dishonorable conduct and life, she
should therefore be comprised within that class which is always subject to the
police and sanitary regulations conducive to the maintenance of public decency
and morality and to the conservation of public health, and for this reason it should
not permitted that the unfortunate women dedicated to prostitution evade the just
orders and resolutions adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor
women, but those who have been worrying so much about the prejudice resulting
from a governmental measure, which being a very drastic remedy may be
considered arbitrary, have failed to consider with due reflection the interests of the
inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten
that many of those who criticize and censure the mayor are fathers of families and
are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners,
because of the abnormal life they assumed, were obliged to change their
residence not by a private citizen but by the mayor of the city who is directly
responsible for the conservation of public health and social morality, the latter
could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the
population from the social evils and diseases which the houses of prostitution
situated in Gardenia Street have been producing, which houses have been
constituting for years a true center for the propagation of general diseases and
other evils derived therefrom. Hence, in ordering the dissolution and abandonment
of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which
guarantees the liberty and the individual rights of every Filipino, inasmuch as the
women petitioners do not absolutely enjoy the said liberty and rights, the exercise
of which they have voluntarily renounced in exchange for the free practice of their
shameful profession.
In very highly advanced and civilized countries, there have been adopted by the
administrative authorities similar measures, more or less rigorous, respecting
prostitutes, considering them prejudicial to the people, although it is true that in the
execution of such measures more humane and less drastic procedures, fortiter in
re et suaviter in forma, have been adopted, but such procedures have always had
in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to
prostitution and changing their domicile, with the problematical hope that they
adopt another manner of living which is better and more useful to themselves and
to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor
Justo Lukban is obliged to take back and restore the said women who are at
present found in Davao, and who desire to return to their former respective
residences, not in Gardenia Street, Sampaloc District, with the exception of the
prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution
must be transmitted to the mayor within the shortest time possible for its due
compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision
rendered in these proceedings, with respect to the finding as to the importance of
the contempt committed, according to the same decision, by Justo Lukban, Mayor
of the city of Manila, and the consequent imposition upon him of a nominal fine of
P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in
the writ before the court on December 2, 1918. The order was dated
November 4, 1918. The respondents were thus given ample time,
practically one month, to comply with the writ. As far as the record
disclosed, the mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial governor of Davao.
According to the response of the Attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none
of the parties in question being brought before the court on the day
named.
In accordance with section 87 of General Orders No. 58, as said in the same
decision, the respondents, for the purpose of complying with the order of the court,
could have, (1) produced the bodies of the persons according to the command of
the writ; (2) shown by affidavits that on account of sickness or infirmity the said
women could not safely be brought before this court; and (3) presented affidavits
to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not
produce the bodies of the persons in whose behalf the writ was granted; did not
show impossibility of performance; and did not present writings, that waived the
right to be present by those interested. Instead, a few stereotyped affidavits
purporting to show that the women were contented with their life in Davao, some of
which have since been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the women, at least
sixty, could have been brought back to Manila is demonstrated by the fact that
during this time they were easily to be found in the municipality of Davao, and that
about this number either returned at their own expense or were produced at the
second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its
first order was made, would have been warranted summarily in finding the
respondent guilty of contempt of court, and in sending them to jail until they
obeyed the order. Their excuses for the non production of the persons were far
from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that
the return did not show that every possible effort to produce the women was made
by the respondents."
When the said return by the respondents was made to this court in banc and the
case discussed, my opinion was that Mayor Lukban should have been immediately
punished for contempt. Nevertheless, a second order referred to in the decision
was issued on December 10, 1918, requiring the respondents to produce before
the court, on January 13, 1919, the women who were not in Manila, unless they
could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has
the following to say:
In response to the second order of the court, the respondents appear to
have become more zealous and to have shown a better spirit. Agents
were dispatched to Mindanao, placards were posted, the constabulary
and the municipal police joined in rounding up the women, and a steamer
with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from
the date of the issuance of the first order on November 4th till the 21st of the same
month before taking the first step for compliance with the mandate of the said
order; he waited till the 21st of November, as the decision says, before he sent a
telegram to the provincial governor o f Davao and naturally this half-hearted effort,
as is so qualified in the decision, resulted in that none of the women appeared
before this court on December 2nd. Thus, the said order was not complied with,
and in addition to this noncompliance there was the circumstances that seven of
the said women having returned to Manila at their own expense before the said
second day of December and being in the antechamber of the court room, which
fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the
respondents nor did the latter show any effort to present them, in spite of the fact
that their attention was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the
respondents, on January 13th, the day fixed for the protection of the women before
this court, presented technically the seven (7) women above-mentioned who had
returned to the city at their own expense and the other eight (8) women whom the
respondents themselves brought to Manila, alleging moreover that their agents
and subordinates succeeded in bringing them from Davao with their consent; that
in Davao they found eighty-one (81) women who, when asked if they desired to
return to Manila with free transportation, renounced such a right, as is shown in the
affidavits presented by the respondents to this effect; that, through other means,
fifty-nine (59) women have already returned to Manila, but notwithstanding the
efforts made to find them it was not possible to locate the whereabouts of twenty-
six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor
Lukban and Chief of Police Hohmann and transported to Davao against their will,
only eight (8) have been brought to Manila and presented before this court by the
respondents in compliance with the said two orders. Fifty-nine (59) of them have
returned to Manila through other means not furnished by the respondents, twenty-
six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation
of the said twenty-six women. Adding to these numbers the other seven (7)
women who returned to this city at their own expense before January 13 we have
a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the
allegation by the respondents in their first answer at the trial of December 2, 1918,
giving as one of the reasons for their inability to present any of the said women
that the latter were content with their life in Mindanao and did not desire to return
to Manila; and, on the other hand, that the respondents, especially the first named,
that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the
compliance with the orders issued by this court, could bring before December 2nd,
the date of the first hearing of the case, as well as before January 13th, the date
fixed for the compliance with the second order, if not the seventy-four (74) women
already indicated, at least a great number of them, or at least sixty (60) of them, as
is said in the majority decision, inasmuch as the said respondent could count upon
the aid of the Constabulary forces and the municipal police, and had transportation
facilities for the purpose. But the said respondent mayor brought only eight (8) of
the women before this court on January 13th. This fact can not, in my judgment,
with due respect to the majority opinion, justify the conclusion that the said
respondent has substantially complied with the second order of this court, but on
the other hand demonstrates that he had not complied with the mandate of this
court in its first and second orders; that neither of the said orders has been
complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is,
according to the majority decision, principally responsible for the contempt, to
which conclusion I agree. The conduct of the said respondent with respect to the
second order confirms the contempt committed by non-compliance with the first
order and constitutes a new contempt because of non-compliance with the
second, because of the production of only eight (8) of the one hundred and eighty-
one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who
could not be found in Davao, demonstrates in my opinion that, notwithstanding the
nature of the case which deals with the remedy of habeas corpus, presented by
the petitioners and involving the question whether they should or not be granted
their liberty, the respondent has not given due attention to the same nor has he
made any effort to comply with the second order. In other words, he has disobeyed
the said two orders; has despised the authority of this court; has failed to give the
respect due to justice; and lastly, he has created and placed obstacles to the
administration of justice in the said habeas corpus proceeding, thus preventing,
because of his notorious disobedience, the resolution of the said proceeding with
the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority,
justice, or dignity of the court; and he is guilty of contempt whose conduct
is such as tends to bring the authority and administration of the law into
disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court
constitutes contempt, unless the defendant is unable to comply therewith.
(Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court,
or to obstruct or attempt to obstruct the service of legal process. If a
person hinders or prevents the service of process by deceiving the officer
or circumventing him by any means, the result is the same as though he
had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often
do, of enforcing respect for the law and for the means it has provided in
civilized communities for establishing justice, since true respect never
comes in that way, it is apparent nevertheless that the power to enforce
decorum in the courts and obedience to their orders and just measures is
so essentially a part of the life of the courts that it would be difficult to
conceive of their usefulness or efficiency as existing without it. Therefore
it may be said generally that where due respect for the courts as ministers
of the law is wanting, a necessity arises for the use of compulsion, not,
however, so much to excite individual respect as to compel obedience or
to remove an unlawful or unwarranted interference with the administration
of justice. (Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been
exercised from the earliest times. In England it has been exerted when
the contempt consisted of scandalizing the sovereign or his ministers, the
law-making power, or the courts. In the American states the power to
punish for contempt, so far as the executive department and the ministers
of state are concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost universally
preserved so far as regards the judicial department. The power which the
courts have of vindicating their own authority is a necessary incident to
every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has
been declared, stands upon the same immemorial usage as supports the
whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed;
the loss of the prestige of the authority of the court which issued the said orders,
which loss might have been caused by noncompliance with the same orders on
the part of the respondent Justo Lukban; the damages which might have been
suffered by some of the women illegally detained, in view of the fact that they were
not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own
expense while still others were brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the transportation of the said women;
and the delay which was necessarily incurred in the resolution of the petition
interposed by the said petitioners and which was due to the fact that the said
orders were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon the
respondent Justo Lukban the penalty corresponding to the contempt committed by
him, a penalty which, according to section 236 of the Code of Civil Procedure,
should consist of a fine not exceeding P1,000 or imprisonment not exceeding
months, or both such fine and imprisonment. In the imposition of the penalty, there
should also be taken into consideration the special circumstance that the contempt
was committed by a public authority, the mayor of the city of Manila, the first
executive authority of the city, and consequently, the person obliged to be the first
in giving an example of obedience and respect for the laws and the valid and just
orders of the duly constituted authorities as well as for the orders emanating from
the courts of justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there
should be imposed upon the respondent Justo Lukban a fine of five hundred pesos
(P500), and all the costs should be charged against him. Lastly, I believe it to be
my duty to state here that the records of this proceeding should be transmitted to
the Attorney-General in order that, after a study of the same and deduction from
the testimony which he may deem necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both
the latter shall present the corresponding informations for the prosecution and
punishment of the crimes which have been committed on the occasion when the
illegal detention of the women was carried into effect by Mayor Justo Lukban of the
city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao.
This will be one of the means whereby the just hope expressed in the majority
decision will be realized, that is, that in the Philippine Islands there should exist a
government of laws and not a government of men and that this decision may serve
to bulwark the fortifications of an orderly Government of laws and to protect
individual liberty from illegal encroachments.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner;
HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense;
HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works,
Transportation and Communications; and HON: BALTAZAR AQUINO, in his
capacity as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo
and Solicitor Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for
motor vehicles is assailed in this prohibition proceeding as being violative of the
constitutional guarantee of due process and, insofar as the rules and regulations
for its implementation are concerned, for transgressing the fundamental principle
of non- delegation of legislative power. The Letter of Instruction is stigmatized by
petitioner who is possessed of the requisite standing, as being arbitrary and
oppressive. A temporary restraining order as issued and respondents Romeo F.
Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National
Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and
Communications; and Baltazar Aquino, Minister of Public Highways; were to
answer. That they did in a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that
the imputation of a constitutional infirmity is devoid of justification The Letter of
Instruction on is a valid police power measure. Nor could the implementing rules
and regulations issued by respondent Edu be considered as amounting to an
exercise of legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President
Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show
that one of the major causes of fatal or serious accidents in land transportation is
the presence of disabled, stalled or parked motor vehicles along streets or
highways without any appropriate early warning device to signal approaching
motorists of their presence; [Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety,
the 1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by
the Philippine Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices; [Now,
therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of
safety on all streets and highways, including expressways or limited access roads,
do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have
at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow colors at
least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle
is stalled or disabled or is parked for thirty (30) minutes or more on any street or
highway, including expressways or limited access roads, the owner, user or driver
thereof shall cause the warning device mentioned herein to be installed at least
four meters away to the front and rear of the motor vehicle staged, disabled or
parked. 3. The Land Transportation Commissioner shall cause Reflectorized
Triangular Early Warning Devices, as herein described, to be prepared and issued
to registered owners of motor vehicles, except motorcycles and trailers, charging
for each piece not more than 15 % of the acquisition cost. He shall also
promulgate such rules and regulations as are appropriate to effectively implement
this order. 4. All hereby concerned shall closely coordinate and take such
measures as are necessary or appropriate to carry into effect then
instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of
Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is
hereby amended to read as follows: 3. The Land transportation Commissioner
shall require every motor vehicle owner to procure from any and present at the
registration of his vehicle, one pair of a reflectorized early warning device, as d bed
of any brand or make chosen by mid motor vehicle . The Land Transportation
Commissioner shall also promulgate such rule and regulations as are appropriate
to effectively implement this order.'" 4 There was issued accordingly, by
respondent Edu, the implementing rules and regulations on December 10,
1976. 5 They were not enforced as President Marcos on January 25, 1977,
ordered a six-month period of suspension insofar as the installation of early
warning device as a pre-registration requirement for motor vehicle was
concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of
such suspension and directed the immediate implementation of Letter of
Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent
Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of
Instruction No. 716, dated June 30, 1978, the implementation of Letter of
Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the
use of Early Warning Devices (EWD) on motor vehicle, the following rules and
regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December
10, 1976; shall now be implemented provided that the device may come from
whatever source and that it shall have substantially complied with the EWD
specifications contained in Section 2 of said administrative order; 2. In order to
insure that every motor vehicle , except motorcycles, is equipped with the device,
a pair of serially numbered stickers, to be issued free of charge by this
Commission, shall be attached to each EWD. The EWD. serial number shall be
indicated on the registration certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders, Circulars, and
Memoranda in conflict herewith are hereby superseded, This Order shall take
effect immediately. 9 It was for immediate implementation by respondent Alfredo L.
Juinio, as Minister of Public Works, transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car,
Model 13035, already properly equipped when it came out from the assembly lines
with blinking lights fore and aft, which could very well serve as an early warning
device in case of the emergencies mentioned in Letter of Instructions No. 229, as
amended, as well as the implementing rules and regulations in Administrative
Order No. 1 issued by the land transportation Commission," 11 alleged that said
Letter of Instruction No. 229, as amended, "clearly violates the provisions and
delegation of police power, [sic] * * *: " For him they are "oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the
precepts of our compassionate New Society." 12 He contended that they are
"infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral
because [they] will make manufacturers and dealers instant millionaires at the
expense of car owners who are compelled to buy a set of the so-called early
warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and
unconstitutional and contrary to the precepts of a compassionate New Society [as
being] compulsory and confiscatory on the part of the motorists who could very
well provide a practical alternative road safety device, or a better substitute to the
specified set of EWD's." 15 He therefore prayed for a judgment both the assailed
Letters of Instructions and Memorandum Circular void and unconstitutional and for
a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-
49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the
allegations contained, the issues raised and the arguments adduced in the petition
for prohibition with writ of p prohibitory and/or mandatory injunction, the Court
Resolved to (require) the respondents to file an answer thereto within ton (10)
days from notice and not to move to dismiss the petition. The Court further
Resolved to [issue] a [temporary restraining order] effective as of this date and
continuing until otherwise ordered by this Court.16
Two motions for extension were filed by the Office of the Solicitor General and
granted. Then on November 15, 1978, he Answer for respondents was submitted.
After admitting the factual allegations and stating that they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
Car, 17 they specifically deny the allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229
as amended by Letters of Instructions Nos. 479 and 716 as well as Land
transportation Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due process of law, equal
protection of law and undue delegation of police power, and that the same are
likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without legal and
factual basis and for the reasons alleged in the Special and Affirmative Defenses
of this Answer."18 Unlike petitioner who contented himself with a rhetorical recital of
his litany of grievances and merely invoked the sacramental phrases of
constitutional litigation, the Answer, in demonstrating that the assailed Letter of
Instruction was a valid exercise of the police power and implementing rules and
regulations of respondent Edu not susceptible to the charge that there was
unlawful delegation of legislative power, there was in the portion captioned Special
and Affirmative Defenses, a citation of what respondents believed to be the
authoritative decisions of this Tribunal calling for application. They are Calalang v.
Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made
to the 1968 Vienna Conventions of the United Nations on road traffic, road signs,
and signals, of which the Philippines was a signatory and which was duly
ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language
calm and dispassionate, the vigorous, at times intemperate, accusation of
petitioner that the assailed Letter of Instruction and the implementing rules and
regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-
persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being
clearly joined. As noted at the outset, it is far from meritorious and must be
dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police
power. That is conceded by petitioner and is the main reliance of respondents. It is
the submission of the former, however, that while embraced in such a category, it
has offended against the due process and equal protection safeguards of the
Constitution, although the latter point was mentioned only in passing. The broad
and expansive scope of the police power which was originally Identified by Chief
Justice Taney of the American Supreme Court in an 1847 decision as "nothing
more or less than the powers of government inherent in every sovereignty" 23 was
stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the
first leading decision after the Constitution came into force, Calalang v. Williams,
Identified police power with state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare. Persons
and property could thus 'be subjected to all kinds of restraints and burdens in order
to we the general comfort, health and prosperity of the state.' Shortly after
independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a
competence being referred to as 'the power to prescribe regulations to promote the
health, morals, peace, education, good order or safety, and general welfare of the
people. The concept was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as 'that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety and welfare of society.
In that sense it could be hardly distinguishable as noted by this Court in Morfe v.
Mutuc with the totality of legislative power. It is in the above sense the greatest
and most powerful at. tribute of government. It is, to quote Justice Malcolm anew,
'the most essential, insistent, and at least table powers, I extending as Justice
Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding
to meet the exigencies of the times, even to anticipate the future where it could be
done, provides enough room for an efficient and flexible response to conditions
and circumstances thus assuring the greatest benefits. In the language of Justice
Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in
the present with the well-being of the nation. What is critical or urgent changes
with the time.' The police power is thus a dynamic agency, suitably vague and far
from precisely defined, rooted in the conception that men in organizing the state
and imposing upon its government limitations to safeguard constitutional rights did
not intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to communal
peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the
fact that the particular police power measure challenged was clearly intended to
promote public safety. It would be a rare occurrence indeed for this Court to
invalidate a legislative or executive act of that character. None has been called to
our attention, an indication of its being non-existent. The latest decision in point,
Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment
conceived with the same end in view. Calalang v. Williams found nothing
objectionable in a statute, the purpose of which was: "To promote safe transit
upon, and. avoid obstruction on roads and streets designated as national roads * *
*. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the
1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest,
was likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his
failure to lay the necessary factual foundation to rebut the presumption of validity.
So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision
of Justice Branders of the American Supreme Court, quoted in the opinion: "The
statute here questioned deals with a subject clearly within the scope of the police
power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality
of legislation of this character, the presumption of constitutionality must prevail in
the absence of some factual foundation of record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer "The President certainly
had in his possession the necessary statistical information and data at the time he
issued said letter of instructions, and such factual foundation cannot be defeated
by petitioner's naked assertion that early warning devices 'are not too vital to the
prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per
cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-
end collisions (p. 12 of petition). Petitioner's statistics is not backed up by
demonstrable data on record. As aptly stated by this Honorable Court: Further: "It
admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is
void on its face, which is not the case here"' * * *. But even as g the verity of
petitioner's statistics, is that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that could mean the
death of 390 or more Filipinos and the deaths that could likewise result from head-
on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the
issuance of such Letter of Instruction is encased in the armor of prior, careful study
by the Executive Department. To set it aside for alleged repugnancy to the due
process clause is to give sanction to conjectural claims that exceeded even the
broadest permissible limits of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this
Letter of Instruction was exposed in the Answer of the Solicitor General thus:
"Such early warning device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped with 1) blinking lights
in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside
motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor
vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because:
Being universal among the signatory countries to the said 1968 Vienna
Conventions, and visible even under adverse conditions at a distance of at least
400 meters, any motorist from this country or from any part of the world, who sees
a reflectorized rectangular early seaming device installed on the roads, highways
or expressways, will conclude, without thinking, that somewhere along the
travelled portion of that road, highway, or expressway, there is a motor vehicle
which is stationary, stalled or disabled which obstructs or endangers passing
traffic. On the other hand, a motorist who sees any of the aforementioned other
built in warning devices or the petroleum lamps will not immediately get adequate
advance warning because he will still think what that blinking light is all about. Is it
an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such
confusion or uncertainty in the mind of the motorist will thus increase, rather than
decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go
unrefuted in the Answer of the Solicitor General "There is nothing in the
questioned Letter of Instruction No. 229, as amended, or in Administrative Order
No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners
concerned like petitioner, to equip their motor vehicles with a pair of this early
warning device in question, procuring or obtaining the same from whatever source.
In fact, with a little of industry and practical ingenuity, motor vehicle owners can
even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction
and administrative order. Accordingly the early warning device requirement can
neither be oppressive, onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires at the expense of
car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with
the early warning device requirement 'a more subtle racket may be committed by
those called upon to enforce it * * * is an unfounded speculation. Besides, that
unscrupulous officials may try to enforce said requirement in an unreasonable
manner or to an unreasonable degree, does not render the same illegal or immoral
where, as in the instant case, the challenged Letter of Instruction No. 229 and
implementing order disclose none of the constitutional defects alleged against it.32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not
premised on lack of power, the justification for a finding of unconstitutionality, but
on the pessimistic, not to say negative, view he entertains as to its wisdom. That
approach, it put it at its mildest, is distinguished, if that is the appropriate word, by
its unorthodoxy. It bears repeating "that this Court, in the language of Justice
Laurel, 'does not pass upon questions of wisdom justice or expediency of
legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to
supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern.' There can be no
possible objection then to the observation of Justice Montemayor. 'As long as laws
do not violate any Constitutional provision, the Courts merely interpret and apply
them regardless of whether or not they are wise or salutary. For they, according to
Justice Labrador, 'are not supposed to override legitimate policy and * * * never
inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional
power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid. This is as it ought to be. The principle of separation of
powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be
intrusion not allowable under the Constitution if on a matter left to the discretion of
a coordinate branch, the judiciary would substitute its own. If there be adherence
to the rule of law, as there ought to be, the last offender should be courts of justice,
to which rightly litigants submit their controversy precisely to maintain unimpaired
the supremacy of legal norms and prescriptions. The attack on the validity of the
challenged provision likewise insofar as there may be objections, even if valid and
cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of
legislative power is equally without any support well-settled legal doctrines. Had
petitioner taken the trouble to acquaint himself with authoritative pronouncements
from this Tribunal, he would not have the temerity to make such an assertion. An
exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To
avoid the taint of unlawful delegation, there must be a standard, which implies at
the very least that the legislature itself determines matters of principle and lays
down fundamental policy. Otherwise, the charge of complete abdication may be
hard to repel A standard thus defines legislative policy, marks its maps out its
boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive
or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard may be either
express or implied. If the former, the non-delegation objection is easily met. The
standard though does not have to be spelled out specifically. It could be implied
from the policy and purpose of the act considered as a whole. In the Reflector Law
clearly, the legislative objective is public safety. What is sought to be attained as
in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the
recognition given expression by Justice Laurel in a decision announced not too
long after the Constitution came into force and effect that the principle of non-
delegation "has been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the principle of
"subordinate legislation" not only in the United States and England but in
practically all modern governments.' He continued: 'Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a
constantly growing tendency toward the delegation of greater powers by the
legislature and toward the approval of the practice by the courts.' Consistency with
the conceptual approach requires the reminder that what is delegated is authority
non-legislative in character, the completeness of the statute when it leaves the
hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is
reinforced by this consideration. The petition itself quoted these two whereas
clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by
such obstructions to traffic have been recognized by international bodies
concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna
Convention, which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety
signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * *
adopts the generally accepted principles of international law as part of the law of
the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is
impressed with such a character. It is not for this country to repudiate a
commitment to which it had pledged its word. The concept of Pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with the
principle of international morality.
10. That is about all that needs be said. The rather court reference to equal
protection did not even elicit any attempt on the Part of Petitioner to substantiate in
a manner clear, positive, and categorical why such a casual observation should be
taken seriously. In no case is there a more appropriate occasion for insistence on
what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting
Co., 37 namely, "that the constitutionality of a law wig not be considered unless the
point is specially pleaded, insisted upon, and adequately argued." 38 "Equal
protection" is not a talismanic formula at the mere invocation of which a party to a
lawsuit can rightfully expect that success will crown his efforts. The law is anything
but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This
decision is immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De
Castro and Melencio-Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the
restraining order issued on October 19, 1978 against the blanket enforcement of
the requirement that all motor vehicles be equipped with the so-called early
warning device, without even hearing the parties in oral argument as generally
required by the Court in original cases of far-reaching consequence such as the
case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the
petition advances grave and serious grounds of assailing "the rules and
regulations issued by the Land Transportation Commission under Administrative
Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent,
noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter
of Instructions Nos. 479 and 716, because it is oppressive, unreasonable,
arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our
compassionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles
with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in
the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside
motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor
vehicles....... to purchase the E.W.D. specified in the challenged administrative
order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid
refutation has been made of petitioner's assertion that the "E.W.D.'s are not too
vital to the prevention of nighttime vehicular accidents. Statistics shows that of the
26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent
involved rear-end collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and
petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles
all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per
set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50
million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the
prescribed E.W.D., such as the common petroleum lamps "kinke" which can be
placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles.
The respondents have not shown that they have availed of the powers and
prerogatives vested in their offices such as ridding the country of dilapidated trucks
and vehicles which are the main cause of the deplorable -highway accidents due
to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsible
and a sustained education campaign to instill safe driving habits and attitudes that
can be carried out for much less than the P 50 million burden that would be
imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to
the petitioner for his civic mindedness in having filed the present petition g as
capricious and unreasonable the "all pervading police power" of the State instead
of throwing the case out of court and leaving the wrong impression that the
exercise of police power insofar as it may affect the life, liberty and property of any
person is no longer subject to judicial inquiry.
# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the
restraining order issued on October 19, 1978 against the blanket enforcement of
the requirement that all motor vehicles be equipped with the so-called early
warning device, without even hearing the parties in oral argument as generally
required by the Court in original cases of far-reaching consequence such as the
case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the
petition advances grave and serious grounds of assailing "the rules and
regulations issued by the Land Transportation Commission under Administrative
Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent,
noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter
of Instructions Nos. 479 and 716, because it is oppressive, unreasonable,
arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our
compassionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles
with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in
the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside
motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor
vehicles....... to purchase the E.W.D. specified in the challenged administrative
order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid
refutation has been made of petitioner's assertion that the "E.W.D.'s are not too
vital to the prevention of nighttime vehicular accidents. Statistics shows that of the
26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent
involved rear-end collisions," as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and
petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles
all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per
set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50
million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the
prescribed E.W.D., such as the common petroleum lamps "kinke" which can be
placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles.
The respondents have not shown that they have availed of the powers and
prerogatives vested in their offices such as ridding the country of dilapidated trucks
and vehicles which are the main cause of the deplorable -highway accidents due
to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsible
and a sustained education campaign to instill safe driving habits and attitudes that
can be carried out for much less than the P50 million burden that would be
imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to
the petitioner for his civic mindedness in having filed the present petition g as
capricious and unreasonable the "all pervading police power" of the State instead
of throwing the case out of court and leaving the wrong impression that the
exercise of police power insofar as it may affect the life, liberty and property of any
person is no longer subject to judicial inquiry.
#Footnotes
1 Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479 (1976).
2 He was assisted by Assistant Solicitor Ruben E. Agpalo and Solicitor Amado D. Aquino.
3 Petition, par. III.
4 Ibid, par. IV.
5 Ibid, par. V.
6 Ibid, par. VIII.
7 No. 716.
8 Petition, par. VII.
9 Ibid, par. VIII.
10 Ibid.
11 Ibid, par. IX.
12 Ibid, par. X.
13 Ibid, par. XI.
14 Ibid, par. X.
15 Ibid, par. XI.
16 Resolution of the Court dated October 19, 1978.
17 Answer, pars. 1-6.
18 Ibid, par. 8.
19 70 Phil. 726 (1940). The opinion was penned by Justice Laurel.
20 L-20387, January 31, 1968; 22 SCRA 424. The writer of this opinion is the ponente.
21 L-32096, October 24, 1970, 35 SCRA 481. The writer of this opinion was likewise the ponente.
22 Answer, par. 18 (a) and (b).
23 License Cases, 5 How. 504, 583.
24 35 SCRA 481, 487-488. There is no need to repeat where Calalang and Morfe are reported. Primicias v. Fugoso is
reported in 80 Phil. 71; Rubi v. Provincial Board, where the first quotation from Justice Malcolm came, in 39 Phil. 660, 708
(1919); and Smith Bell and Co. v. Natividad, his other decision cited, in 40 Phil. 136 (1919); Helvering v. Davis, with Justice
Cardozo writing the opinion, in 301 US 619 (1937).
25 Republic Act No. 5715 (1969).
26 Commonwealth Act No. 548 (1940).
27 Cf. People v. Lagman 66 Phil. 13 (1938). Even earlier in United States v. Pompeya, 31 Phil. 245 (1915), this Court, by
virtue of the police power, held valid a provision of the then Municipal Code requiring " able-bodied" males in the vicinity
between ages to perform patrol duty not ex one day each week.
28 L-24693, July 31, 1967, 20 SCRA 849.
29 Ibid. 867. The excerpt came from O'Gorman and Young v. Hartford Fire Insurance Co., 282 US 251, 328 (1931).
30 Answer, par. 18 (a). The excerpt came from Samson v. Mayor of Bacolod City, L-28745; October 23, 1974; 60 SCRA 267;
270.
31 Ibid, par. 18 (c).
32 Ibid, par. 18 (d) and (e),
33 Morfe v. Mutuc, 22 SCRA 424, 450-451. The citation from Justice Laurel may be traced to Angara v. Electoral
Commission, 63 Phil. 139, 160 (1936); from Justice Laurel to People v. Carlos, 78 Phil. 535, 548 (1947); from Justice
Montemayor to Quintos v. Lacson, 97 Phil. 290, 293 (1955); and from Justice Labrador to Ichong v. Hernandez, 101 Phil.
1155, 1166 (1957). Chief Justice Concepcion's reiteration of the doctrine, paraphrased in the quoted opinion, was made by
him in Gonzales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA 774. Cf. Province of Pangasinan v.
Secretary of Public Works, 27861, October 3l,1969, 30 SCRA 134.
34 SCRA 481, 497-498. The following cases were also cited. People v. Exconde, 101 Phil. 1125 (1957), and People v.
Jolliffe, 105 Phil. 677 (1959).
35 Petition, par. III.
36 Article 11, Section 3 of the Constitution reads in full "The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of the land, and adheres to the Policy of
peace, equality, justice, freedom, cooperation, and amity with all nations.
37 73 Phil. 408 (1941).
 Republic of the Philippines has a mother and a brother eight years old to support, and Tranquilino Lagman
SUPREME COURT also has a father to support, has no military learnings, and does not wish to kill or
Manila be killed.

EN BANC
G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and
Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act
No. 1, known as the National Defense Law. It is alleged that these two appellants,
being Filipinos and having reached the age of twenty years in 1936, willfully and
unlawfully refused to register in the military service between the 1st and 7th of
April of said year, notwithstanding the fact that they had been required to do so.
The evidence shows that these two appellants were duly notified by the
corresponding authorities to appear before the Acceptance Board in order to
register for military service in accordance with law, and that the said appellants, in
spite of these notices, had not registered up to the date of the filing of the
information.
The appellants do not deny these facts, but they allege in defense that they have
not registered in the military service because Primitivo de Sosa is fatherless and
Each of these appellants was sentenced by the Court of First Instance to one
month and one day of imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the accused
were sentenced, is impugned on the ground that it is unconstitutional. Section 2,
Article II of the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in
the fulfillment of this duty all citizens may be required by law to render
personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service,
does not go against this constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend the State cannot be
performed except through an army. To leave the organization of an army to the will
of the citizens would be to make this duty of the Government excusable should
there be no sufficient men who volunteer to enlist therein.1vvphl.nt
In the United States the courts have held in a series of decisions that the
compulsory military service adopted by reason of the civil war and the world war
does not violate the Constitution, because the power to establish it is derived from
that granted to Congress to declare war and to organize and maintain an army.
This is so because the right of the Government to require compulsory military
service is a consequence of its duty to defend the State and is reciprocal with its
duty to defend the life, liberty, and property of the citizen. In the case of Jacobson
vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without
violating the Constitution, a person may be compelled by force, if need be, against
his will, against his pecuniary interests, and even against his religious or political
convictions, to take his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense. In the case of United States vs. Olson
(253 Fed., 233), it was also said that this is not deprivation of property without due
process of law, because, in its just sense, there is no right of property to an office
or employment.
The circumstance that these decisions refer to laws enacted by reason on the
actual existence of war does not make our case any different, inasmuch as, in the
last analysis, what justifies compulsory military service is the defense of the State,
whether actual or whether in preparation to make it more effective, in case of
need. The circumstance that the appellants have dependent families to support
does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for
determent in complying with their duty and, at all events, they can obtain the
proper pecuniary allowance to attend to these family responsibilities (secs. 65 and
69 of Commonwealth Act No. 1).

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

Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

 EN BANC
ALEJANDRO ESTRADA, A.M. No. P-02-1651
Complainant, (formerly OCA I.P.I. No. 00-1021-P)
SOLEDAD S. ESCRITOR,
Respondent. June 22, 2006
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent
Soledad Escritor once again stands before the Court invoking her religious
freedom and her Jehovah God in a bid to save her family united without the benefit
of legal marriage - and livelihood. The State, on the other hand, seeks to wield its
power to regulate her behavior and protect its interest in marriage and family and
the integrity of the courts where respondent is an employee. How the Court will tilt
the scales of justice in the case at bar will decide not only the fate of respondent
Escritor but of other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003.[1]
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada
requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional
Trial Court of Las Pias City, for an investigation of respondent Soledad Escritor,
court interpreter in said court, for living with a man not her husband, and having
borne a child within this live-in arrangement. Estrada believes that Escritor is
committing an immoral act that tarnishes the image of the court, thus she should
not be allowed to remain employed therein as it might appear that the court
condones her act.[2] Consequently, respondent was charged with committing
disgraceful and immoral conduct under Book V, Title I, Chapter VI, Sec. 46(b)(5) of
the Revised Administrative Code. [3]
Respondent Escritor testified that when she entered the judiciary in
1999, she was already a widow, her husband having died in 1998.[4] She admitted
that she started living with Luciano Quilapio, Jr. without the benefit of marriage
more than twenty years ago when her husband was still alive but living with
another woman. She also admitted that she and Quilapio have a son.[5] But as a
member of the religious sect known as the Jehovahs Witnesses and
the Watch Tower and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the approval of her
congregation.[6] In fact, after ten years of living together, she executed on July 28,
1991, a Declaration of Pledging Faithfulness.[7]
For Jehovahs Witnesses, the Declaration allows members of the
congregation who have been abandoned by their spouses to enter into marital
relations. The Declaration thus makes the resulting union moral and binding within
the congregation all over the world except in countries where divorce is allowed.
As laid out by the tenets of their faith, the Jehovahs congregation requires that at
the time the declarations are executed, the couple cannot secure the civil
authorities approval of the marital relationship because of legal impediments. Only
couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a
matter of practice, the marital status of the declarants and their respective spouses
commission of adultery are investigated before the declarations are
executed.[8] Escritor and Quilapios declarations were executed in the usual and
approved form prescribed by the Jehovahs Witnesses,[9] approved by elders of the
congregation where the declarations were executed,[10] and recorded in the Watch
Tower Central Office.[11]
Moreover, the Jehovahs congregation believes that once all legal
impediments for the couple are lifted, the validity of the declarations ceases, and
the couple should legalize their union. In Escritors case, although she was
widowed in 1998, thereby lifting the legal impediment to marry on her part, her
mate was still not capacitated to remarry.Thus, their declarations remained
valid.[12] In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation.
 By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held administratively
liable,[13] the Court had to determine the contours of religious freedom under Article
III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny
into the origins and development of the religion clauses in the United States (U.S.)
and the Philippines, we held that in resolving claims involving religious freedom
(1) benevolent neutrality or accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondents plea of exemption based on the Free
Exercise Clause (from the law with which she is administratively charged), it
is the compelling state interest test, the strictest test, which must be applied.[14]
Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more compelling interest to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003,
we remanded the complaint to the Office of the Court Administrator (OCA),
and ordered the Office of the Solicitor General (OSG) to intervene in the case
so it can:
(a) examine the sincerity and centrality of respondents
claimed religious belief and practice;
(b) present evidence on the states compelling interest to
override respondents religious belief and practice; and
(c) show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious
freedom. [15]
It bears stressing, therefore, that the residual issues of the case pertained
NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING
THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF
RELIGION. These issues have already been ruled upon prior to the remand,
and constitute the law of the case insofar as they resolved the issues of
which framework and test are to be applied in this case, and no motion for
its reconsideration having been filed.[16] The only task that the Court is left to do
is to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.
B. LAW OF THE CASE
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this
case interpreting the religious clauses of the Constitution, made more than two
years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration assailing this
ruling, the same has attained finality and constitutes the law of the case. Any
attempt to reopen this final ruling constitutes a crass contravention of elementary
rules of procedure. Worse, insofar as it would overturn the parties right to rely upon
our interpretation which has long attained finality, it also runs counter to
substantive due process.
Be that as it may, even assuming that there were no procedural and
substantive infirmities in Mr. Justice Carpios belated attempts to disturb settled
issues, and that he had timely presented his arguments, the results would still be
the same.
 We review the highlights of our decision dated August 4, 2003.
1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old
World antecedents of the religion clauses, because one cannot understand, much
less intelligently criticize the approaches of the courts and the political branches to
religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience.[17] We delved into the conception of religion from
primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.[18] Then,
religion developed on its own and became superior to the state,[19] its
subordinate,[20] and even becoming an engine of state policy.[21]
We ascertained two salient features in the review of religious history:
First, with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in the
name of the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by secular
powers to promote secular purposes and policies, and the willing acceptance of
that role by the vanguards of religion in exchange for the favors and mundane
benefits conferred by ambitious princes and emperors in exchange for religions
invaluable service. This was the context in which the unique experiment of the
principle of religious freedom and separation of church and state saw its birth in
American constitutional democracy and in human history. [22]
Strictly speaking, the American experiment of freedom and separation
was not translated in the First Amendment. That experiment had been launched
four years earlier, when the founders of the republic carefully withheld from the
new national government any power to deal with religion. As James Madison said,
the national government had no jurisdiction over religion or any shadow of right to
intermeddle with it. [23]
The omission of an express guaranty of religious freedom and other
natural rights, however, nearly prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption of the religion clauses in the
First Amendment as they are worded to this day. Thus, the First Amendment did
not take away or abridge any power of the national government; its intent was to
make express the absence of power.[24] It commands, in two parts (with the first
part usually referred to as the Establishment Clause and the second part, the Free
Exercise Clause), viz:
Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof. [25]
The Establishment and Free Exercise Clauses, it should be noted, were
not designed to serve contradictory purposes. They have a single goalto promote
freedom of individual religious beliefs and practices. In simplest terms, the Free
Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause
prohibits government from inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.[26]
In sum, a review of the Old World antecedents of religion shows the
movement of establishment of religion as an engine to promote state interests, to
the principle of non-establishment to allow the free exercise of religion.
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses interpretation and
construction in the United States, not because we are bound by their
interpretation, but because the U.S.religion clauses are the precursors to the
Philippine religion clauses, although we have significantly departed from
the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area
has been volatile and fraught with inconsistencies whether within a Court decision
or across decisions. For while there is widespread agreement regarding the value
of the First Amendment religion clauses, there is an equally broad disagreement
as to what these clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in the U.S. Congress renders it difficult to
ascertain its meaning.[27]
U.S. history has produced two identifiably different, even opposing,
strains of jurisprudence on the religion clauses. First is the standard
of separation, which may take the form of either (a) strict separation or (b) the
tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers
to as the second theory of governmental neutrality. Although the latter form is
not as hostile to religion as the former, both are anchored on the Jeffersonian
premise that a wall of separation must exist between the state and the Church to
protect the state from the church.[28] Both protect the principle of church-state
separation with a rigid reading of the principle. On the other hand,
the second standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of separation is meant to protect the church
from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was
meant to protect the state from the church, and the states hostility towards religion
allows no interaction between the two. According to this Jeffersonian view, an
absolute barrier to formal interdependence of religion and state needs to be
erected. Religious institutions could not receive aid, whether direct or indirect, from
the state. Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers.[29] Only the complete separation of religion from
politics would eliminate the formal influence of religious institutions and provide for
a free choice among political views, thus a strict wall of separation is necessary. [30]
Strict separation faces difficulties, however, as it is deeply embedded in
American history and contemporary practice that enormous amounts of aid, both
direct and indirect, flow to religion from government in return for huge amounts of
mostly indirect aid from religion.[31] For example, less than twenty-four hours after
Congress adopted the First Amendments prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty
for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and
Prayer.[32] Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to.[33]
The tamer version of the strict separationist view, the strict
neutrality or separationist view, (or, the governmental neutrality theory) finds
basis in Everson v. Board of Education,[34] where the Court declared
that Jeffersons wall of separation encapsulated the meaning of the First
Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the wall of separation does not require the state to be
their adversary. Rather, the state must be neutral in its relations with groups of
religious believers and non-believers. State power is no more to be used so as to
handicap religions than it is to favor them.[35] The strict neutrality approach is not
hostile to religion, but it is strict in holding that religion may not be used as a basis
for classification for purposes of governmental action, whether the action confers
rights or privileges or imposes duties or obligations. Only secular criteria may be
the basis of government action. It does not permit, much less
require, accommodation of secular programs to religious belief.[36]
The problem with the strict neutrality approach, however, is if applied in
interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v.
Schempp,[37] strict neutrality could lead to a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to the religious which is
prohibited by the Constitution.[38] Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible
with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion but
not, say, of philosophy or science. The strict neutrality approach
all but erases this distinction. Thus it is not surprising that the
 [U.S.] Supreme Court has rejected strict neutrality, permitting
and sometimes mandating religious classifications.[39]
Thus, the dilemma of the separationist approach, whether in the form
of strict separation or strict neutrality, is that while the Jeffersonian wall of
separation captures the spirit of the American ideal of church-state separation, in
real life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.[40]
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on
a different view of the wall of separation, associated with Williams, founder of
the Rhode Islandcolony. Unlike the Jeffersonian wall that is meant to protect the
state from the church, the wall is meant to protect the church from the
state.[41] This doctrine was expressed in Zorach v. Clauson,[42] which held, viz:
The First Amendment, however, does not say that in
every and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, the specific
ways, in which there shall be no concert or union or dependency
one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to each
other - hostile, suspicious, and even unfriendly. Churches could
not be required to pay even property taxes. Municipalities would
not be permitted to render police or fire protection to religious
groups.Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a
holiday; so help me God in our courtroom oaths- these and all
other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to
the supplication with which the Court opens each session: God
save the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions
presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious
instruction or cooperates with religious authorities by adjusting
the schedule of public events, it follows the best of our
traditions. For it then respects the religious nature of our people
and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion
and to throw its weight against efforts to widen their effective
scope of religious influence.[43]
Benevolent neutrality recognizes that religion plays an important role in
the public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions. Among
these are the inscription of In God We Trust on American currency; the recognition
of America as one nation under God in the official pledge of allegiance to the flag;
the Supreme Courts time-honored practice of opening oral argument with the
invocation God save the United States and this Honorable Court; and the practice
of Congress and every state legislature of paying a chaplain, usually of a particular
Protestant denomination, to lead representatives in prayer.These practices clearly
show the preference for one theological viewpointthe existence of and potential for
intervention by a godover the contrary theological viewpoint of atheism. Church
and government agencies also cooperate in the building of low-cost housing and in
other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension. [44]
Examples of accommodations in American jurisprudence also abound,
including, but not limited to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister to lead the legislature in daily
prayers,[45] or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;[46] for government to
give money to religiously-affiliated organizations to teach adolescents about proper
sexual behavior;[47] or to provide religious school pupils with books;[48] or bus rides
to religious schools;[49] or with cash to pay for state-mandated standardized
tests.[50]
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the
Religion clauses are invoked in relation to governmental action, almost invariably
in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion
will be challenged as unconstitutional, either because it violates the Free Exercise
Clause or the Establishment Clause or both. This is true whether one subscribes to
the separationist approach or the benevolent
neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a
secular purpose and general applicability, but may incidentally or inadvertently aid
or burden religious exercise. Though the government action is not religiously
motivated, these laws have a burdensome effect on religious exercise.
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to promote
the governments favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a persons or institutions
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.[51] In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the legislature fails to
do so, religions that are threatened and burdened may turn to the courts for
protection.[52]
Thus, what is sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but an exemption from its
application or its burdensome effect, whether by the legislature or the
courts.[53] Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a burdensome
effect.[54]
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation
in the U.S. blossomed in the case of Sherbert v. Verner,[55] which ruled that state
regulation that indirectly restrains or punishes religious belief or conduct must be
subjected to strict scrutiny under the Free Exercise Clause.[56] According
to Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount and
compelling as to override the free exercise claim. Otherwise, the Court itself will
carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work
on Saturdays on religious grounds. Her claim was denied. She sought recourse in
the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the
decision of the South Carolina Supreme Court is to withstand
appellants constitutional challenge, it must be either because
her disqualification as a beneficiary represents no
infringement by the State of her constitutional right of free
exercise, or because any incidental burden on the free
 exercise of appellants religion may be justified by a
compelling state interest in the regulation of a subject
within the States constitutional power to regulate. . .
.[57] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that
it is not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.[58] The Court found
that there was no such compelling state interest to override Sherberts religious
liberty. It added that even if the state could show that Sherberts exemption would
pose serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to choose
between receiving benefits and following her religion. This choice placed the same
kind of burden upon the free exercise of religion as would a fine imposed against
(her) for her Saturday worship. This germinal case of Sherbert firmly established
the exemption doctrine, [59] viz:
It is certain that not every conscience can be accommodated by
all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted
unless some compelling state interest intervenes.
Thus, Sherbert and subsequent cases held that when government action
burdens, even inadvertently, a sincerely held religious belief or practice, the state
must justify the burden by demonstrating that the law embodies a compelling
interest, that no less restrictive alternative exists, and that a religious exemption
would impair the states ability to effectuate its compelling interest. As in other
instances of state action affecting fundamental rights, negative impacts on those
rights demand the highest level of judicial scrutiny. After Sherbert, this strict
scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were
found. [60]
Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S. Court again
ruled that religious exemption was in order, notwithstanding that the law of
general application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin compulsory
school-attendance laws. The Court, in effect, granted exemption from a neutral,
criminal statute that punished religiously motivated conduct. Chief Justice Burger,
writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school
attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny the
free exercise of religious belief by its requirement, or that
there is a state interest of sufficient magnitude to override
the interest claiming protection under the Free Exercise
Clause. Long before there was general acknowledgement of the
need for universal education, the Religion Clauses had specially
and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if
less explicit, prohibition against the establishment of any
religion.The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the
expense of other interests of admittedly high social importance. .
.
The essence of all that has been said and written on
the subject is that only those interests of the highest order
and those not otherwise served can overbalance legitimate
claims to the free exercise of religion. . .
 . . . our decisions have rejected the idea that religiously
grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even
when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the
health, safety, and general welfare, or the Federal government in
the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the
broad police power of the State is not to deny that there are
areas of conduct protected by the Free Exercise Clause of
the First Amendment and thus beyond the power of the
State to control, even under regulations of general
applicability. . . .This case, therefore, does not become easier
because respondents were convicted for their actions in refusing
to send their children to the public high school; in this context
belief and action cannot be neatly confined in logic-tight
compartments. . . [62]
The cases of Sherbert and Yoder laid out the following doctrines: (a) free
exercise clause claims were subject to heightened scrutiny or compelling
interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil
penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit;[63]and (c) the Court could
carve out accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action
was protectedconduct beyond speech, press, or worship was included in the
shelter of freedom of religion. Neither Sherberts refusal to work on the Sabbath nor
the Amish parents refusal to let their children attend ninth and tenth grades can be
classified as conduct protected by the other clauses of the First
Amendment. Second, indirect impositions on religious conduct, such as the denial
of twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well
as direct restraints, such as the criminal prohibition at issue in Yoder, were
prohibited. Third, as the language in the two cases indicate, the protection granted
was extensive. Only extremely strong governmental interests justified impingement
on religious conduct, as the absolute language of the test of the Free Exercise
Clause suggests. [64]
Fourth, the strong language was backed by a requirement that the
government provide proof of the important interest at stake and of the dangers to
that interest presented by the religious conduct at issue. Fifth, in determining the
injury to the governments interest, a court was required to focus on the effect that
exempting religious claimants from the regulation would have, rather than on the
value of the regulation in general. Thus, injury to governmental interest had to be
measured at the margin: assuming the law still applied to all others, what would be
the effect of exempting the religious claimant in this case and other similarly
situated religious claimants in the future? Together, the fourth and fifth elements
required that facts, rather than speculation, had to be presented concerning how
the governments interest would be harmed by excepting religious conduct from the
law being challenged. [65]
Sherbert and Yoder adopted a balancing test for free exercise
jurisprudence which would impose a discipline to prevent manipulation in the
balancing of interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance, by not
allowing speculation about the effects of a decision adverse to those interests nor
accepting that those interests would be defined at a higher level of generality than
the constitutional interests on the other side of the balance. [66]
Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated conduct. While
not affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with religious
practices. Although the members of the U.S. Court often disagreed over which
governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of
religion.[67] Most scholars and courts agreed that under Sherbert and Yoder, the
Free Exercise Clause provided individuals some form of heightened scrutiny
protection, if not always a compelling interest one.[68] The 1990 case
of Employment Division, Oregon Department of Human Resources v.
Smith,[69] drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law
prohibiting use of peyote, a hallucinogenic substance. Specifically, individuals
challenged the states determination that their religious use of peyote, which
resulted in their dismissal from employment, was misconduct disqualifying them
from receipt of unemployment compensation benefits. [70]
Justice Scalia, writing for the majority, rejected the claim that free
exercise of religion required an exemption from an otherwise valid law. Scalia said
that [w]e have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition. [71] Scalia thus declared that the right of
free exercise does not relieve an individual of the obligation to comply with a valid
and neutral law of general applicability of the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).[72]
Justice Scalias opinion then reviewed the cases where free exercise
challenges had been upheldsuch as Cantwell, Murdock, Follet,
Pierce, and Yoderand said that none involved the free exercise clause claims
alone. All involved the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the press, or the right
of parents to direct the education of their children. [73] The Court said
that Smith was distinguishable because it did not involve such a hybrid situation,
but was a free exercise claim unconnected with any communicative activity or
parental right. [74]
Moreover, the Court said that the Sherbert line of cases applied only in
the context of the denial of unemployment benefits; it did not create a basis for an
exemption from criminal laws. Scalia wrote that [e]ven if we were inclined to
breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal
law. [75]
The Court expressly rejected the use of strict scrutiny for challenges to
neutral laws of general applicability that burden religion. Justice Scalia said that
[p]recisely because we are a cosmopolitan nation made up of people of almost
conceivable religious preference, and precisely because we value and protect that
religious divergence, we cannot afford the luxury of deeming presumptively invalid,
as applied to the religious objector, every regulation of conduct that does not
protect an interest of the highest order. The Court said that those seeking religious
exemptions from laws should look to the democratic process for protection, not the
courts. [76]
Smith thus changed the test for the free exercise clause. Strict or
heightened scrutiny and the compelling justification approach were abandoned for
evaluating laws burdening religion; neutral laws of general applicability only have
to meet the rational basis test, no matter how much they burden religion. [77]
Justice OConnor wrote a concurring opinion sharply criticizing the
rejection of the compelling state interest test, asserting that (t)he compelling state
interest test effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not
permit encroachments upon this liberty, whether direct or indirect, unless required
by clear and compelling government interest of the highest order.[78] She said that
strict scrutiny is appropriate for free exercise challenges because [t]he compelling
interest test reflects the First Amendments mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society. [79]
Justice OConnor also disagreed with the majoritys description of prior
cases and especially its leaving the protection of minority religions to the political
process. She said that, First Amendment was enacted precisely to protect the
rights of those whose religious practice are not shared by the majority and may be
viewed with hostility. [80]
Justice Blackmun wrote a dissenting opinion that was joined by Justices
Brennan and Marshall. The dissenting Justices agreed with Justice OConnor that
the majority had mischaracterized precedents, such as in describing Yoder as a
hybrid case rather than as one under the free exercise clause. The dissent also
argued that strict scrutiny should be used in evaluating government laws
burdening religion. [81]
Criticism of Smith was intense and widespread.[82] Academics, Justices,
and a bipartisan majority of Congress noisily denounced the
decision.[83] Smith has the rather unusual distinction of being one case that is
almost universally despised (and this is not too strong a word) by both the liberals
and conservatives.[84] Liberals chasten the Court for its hostility to minority faiths
which, in light of Smiths general applicability rule, will allegedly suffer at the hands
of the majority faith whether through outright hostility or neglect. Conservatives
bemoan the decision as an assault on religious belief leaving religion, more than
ever, subject to the caprice of an ever more secular nation that is increasingly
hostile to religious belief as an oppressive and archaic anachronism. [85]
The Smith doctrine is highly unsatisfactory in several respects and has
been criticized as exhibiting a shallow understanding of free exercise
jurisprudence.[86] First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. [87] Critics
of Smith have worried about religious minorities, who can suffer disproportionately
from laws that enact majoritarian mores.[88] Smith, in effect would allow
discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,[89] contrary to the original theory of the
First Amendment.[90] Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith virtually
wiped out their judicial recourse for exemption.[91] Second, Smith leaves too much
leeway for pervasive welfare-state regulation to burden religion while satisfying
neutrality. After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion.[92] Government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering the
political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost meaningless.[93] Third,
the Reynolds-Gobitis-Smith[94] doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious
inadvertent impact on religion.[95]
At bottom, the Courts ultimate concern in Smith appeared to be two-fold:
(1) the difficulty in defining and limiting the term religion in todays pluralistic
society, and (2) the belief that courts have no business determining the
significance of an individuals religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise Clause must
protect everything or it must protect virtually nothing. As a result, the Court
perceives its only viable options are to leave free exercise protection to the political
process or to allow a system in which each conscience is a law unto itself. [96] The
Courts characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two
viable options, then admittedly, the Court has a stronger
argument. But the Free Exercise Clause cannot be summarily
dismissed as too difficult to apply and this should not be applied
at all. The Constitution does not give the judiciary the option of
simply refusing to interpret its provisions. The First Amendment
dictates that free exercise of religion must be
protected. Accordingly, the Constitution compels the Court to
struggle with the contours of what constitutes religion. There is
no constitutional opt-out provision for constitutional words that
are difficult to apply.
Nor does the Constitution give the Court the option of simply
ignoring constitutional mandates. A large area of middle ground
exists between the Courts two opposing alternatives for free
exercise jurisprudence. Unfortunately, this middle ground
requires the Court to tackle difficult issues such as defining
religion and possibly evaluating the significance of a religious
belief against the importance of a specific law. The Court
 describes the results of this middle ground where federal judges
will regularly balance against the importance of general laws the
significance of religious practice, and then dismisses it as a
parade of horribles that is too horrible to contemplate.
It is not clear whom the Court feels would be most hurt by this
parade of horribles. Surely not religious individuals; they would
undoubtedly prefer their religious beliefs to be probed for
sincerity and significance rather than acquiesce to the Courts
approach of simply refusing to grant any constitutional
significance to their beliefs at all. If the Court is concerned about
requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It
is the lawmakers who have sought to prevent the Court from
dismantling the Free Exercise Clause through such legislation as
the [Religious Freedom Restoration Act of 1993], and in any
case, the Court should not be overly concerned about hurting
legislatures feelings by requiring their laws to conform to
constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say
that
requiring the judiciary to perform its appointed role as
constitutional interpreters is a burden no judge should be
expected to fulfill.[97]
Parenthetically, Smiths characterization that the U.S. Court has never
held that an individuals religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the state is free to regulatean assertion
which Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply
criticized even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments that the
Court was wrong as a matter of original meaning [of the religion clauses] or that
the decision conflicted with precedent [i.e. the Smith decision made shocking use
of precedent]those points were often conceded. [98]
To justify its perversion of precedent, the Smith Court attempted to
distinguish the exemption made in Yoder, by asserting that these were premised
on two constitutional rights combinedthe right of parents to direct the education of
their children and the right of free exercise of religion. Under the Courts opinion
in Smith, the right of free exercise of religion standing alone would not allow Amish
parents to disregard the compulsory school attendance law, and under the Courts
opinion in Yoder, parents whose objection to the law was not religious would also
have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined? [99] As
for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to
denials of unemployment compensation benefits where the religiously-compelled
conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious
person was more likely to be entitled to constitutional protection when forced to
choose between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. [100]
Thus, the Smith decision elicited much negative public reaction
especially from the religious community, and commentaries insisted that the Court
was allowing the Free Exercise Clause to disappear.[101] So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993.[102] The RFRA was adopted to negate
the Smith test and require strict scrutiny for free exercise claims. Indeed, the
findings section of the Act notes that Smith virtually eliminated the requirement
that the government justify burdens on religious exercise imposed by laws neutral
toward religion.[103] The Act declares that its purpose is to restore the compelling
interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to
guarantee its application in all cases where free exercise of religion is substantially
burdened; and to provide a claim of defense to a person whose religious exercise
is substantially burdened by government.[104] The RFRA thus sought to
overrule Smith and make strict scrutiny the test for all free exercise clause
claims. [105]
In the City of Boerne v. Flores, [106] the U.S. Supreme Court declared the
RFRA unconstitutional, ruling that Congress had exceeded its power under the
Fourteenth Amendment in enacting the law. The Court ruled that Congress is
empowered to enact laws to enforce the amendment, but Congress is not
enforcing when it creates new constitutional rights or expands the scope of
rights. [107]
City of Boerne also drew public backlash as the U.S. Supreme Court
was accused of lack of judicial respect for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice Scalia wrote:
Values that are protected against governmental
interference through enshrinement in the Bill of Rights are not
thereby banished from the political process. Just as society
believes in the negative protection accorded to the press by the
First Amendment is likely to enact laws that affirmatively foster
the dissemination of the printed word, so also a society that
believes in the negative protection accorded to religious belief
can be expected to be solicitous of that value in its legislation as
well.
By invalidating RFRA, the Court showed a marked disrespect of the
solicitude of a nearly unanimous Congress. Contrary to the Courts characterization
of the RFRA as a kind of usurpation of the judicial power to say what the
Constitution means, the law offered no definition of Free Exercise, and on its face
appeared to be a procedural measure establishing a standard of proof and
allocating the duty of meeting it. In effect, the Court ruled that Congress had no
power in the area of religion. And yet, Free Exercise exists in the First Amendment
as a negative on Congress. The power of Congress to act towards the states in
matters of religion arises from the Fourteenth Amendment. [108]
From the foregoing, it can be seen that Smith, while expressly
recognizing the power of legislature to give accommodations, is in effect contrary
to the benevolent neutrality or accommodation approach. Moreover, if we
consider the history of the incorporation of the religion clauses in the U.S., the
decision in Smith is grossly inconsistent with the importance placed by the framers
on religious faith. Smith is dangerous precedent because it subordinates
fundamental rights of religious belief and practice to all neutral, general
legislation. Sherbert recognized the need to protect religious exercise in light of
the massive increase in the size of government, the concerns within its reach, and
the number of laws administered by it. However, Smith abandons the protection of
religious exercise at a time when the scope and reach of government has never
been greater. It has been pointed out that Smith creates the legal framework for
persecution: through general, neutral laws, legislatures are now able to force
conformity on religious minorities whose practice irritate or frighten an intolerant
majority.[109]
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause. Smith left
religious freedom for many in the hands of the political process, exactly where it
would be if the religion clauses did not exist in the Bill of Rights. Like most
protections found in the Bill of Rights, the religion clauses of the First Amendment
are most important to those who cannot prevail in the political process. The Court
in Smith ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because mainstream
religions generally have been successful in protecting their interests through the
political process, it is the non-mainstream religions that are adversely affected
by Smith. In short, the U.S. Supreme Court has made it clear to such religions that
they should not look to the First Amendment for religious freedom. [110]
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a)
those which are found to be constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or legislative, i.e., not required
by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit.[111]
Mandatory accommodation results when the Court finds that
accommodation is required by the Free Exercise Clause, i.e, when the Court itself
carves out an exemption. This accommodation occurs when all three conditions of
the compelling interest test are met, i.e, a statute or government action has
burdened claimants free exercise of religion, and there is no doubt as to the
sincerity of the religious belief; the state has failed to demonstrate a particularly
important or compelling governmental goal in preventing an exemption; and that
the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or hostility
could explain a refusal to make exemptions. Thus, if the states objective could be
served as well or almost as well by granting an exemption to those whose religious
beliefs are burdened by the regulation, the Court must grant the exemption.
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.[112]
In permissive accommodation, the Court finds that the State may, but is
not required to, accommodate religious interests. The U.S. Walz case illustrates
this situation where the U.S. Supreme Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that (t)he limits of
permissible state accommodation to religion are by no means co-extensive with
the noninterference mandated by the Free Exercise Clause.[113] Other examples
are Zorach v. Clauson,[114] allowing released time in public schools and Marsh v.
Chambers,[115] allowing payment of legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or
it determines that the legislative accommodation runs afoul of the establishment or
the free exercise clause, it results to a prohibited accommodation. In this case,
the Court finds that establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the Free Exercise
Clause does not mean that all claims for free exercise exemptions are valid.[116] An
example where accommodation was prohibited is McCollum v. Board of
Education,[117] where the Court ruled against optional religious instruction in the
public school premises.[118]
Given that a free exercise claim could lead to three different results, the
question now remains as to how the Court should determine which action to take.
In this regard, it is the strict scrutiny-compelling state interest test which is
most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First
Amendment is that freedom to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious freedom
is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances.
Considering that laws nowadays are rarely enacted specifically to disable
religious belief or practice, free exercise disputes arise commonly when a law that
is religiously neutral and generally applicable on its face is argued to prevent or
burden what someones religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise
arguments contemplate religious exemptions from otherwise general laws.[119]
Strict scrutiny is appropriate for free exercise challenges because [t]he
compelling interest test reflects the First Amendments mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society. [120] Underlying
the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.[121]
In its application, the compelling state interest test follows a three-step
process, summarized as follows:
If the plaintiff can show that a law or government
practice inhibits the free exercise of his religious beliefs, the
burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some important
(or compelling) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to
 exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need
not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the
Free Exercise Clause; secular beliefs, however sincere and
conscientious, do not suffice.[122]
In sum, the U.S. Court has invariably decided claims based on the
religion clauses using either the separationist approach, or the benevolent
neutrality approach. The benevolent neutrality approach has also further been split
by the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view as
pronounced in Smith, however, is that that there are no required accommodation
under the First Amendment, although it permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence
and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that
of the Philippines, it is immediately clear that one cannot simply conclude that we
have adoptedlock, stock and barrelthe religion clauses as embodied in the First
Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in
the U.S. where legislative exemptions of religion had to be upheld by the U.S.
Supreme Court as constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own constitutions. Thus, our
1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church
property,[123] salary of religious officers in government institutions,[124] and optional
religious instruction.[125] Our own preamble also invokes the aid of a divine
being.[126] These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal without
doubt that the Filipino people, in adopting these constitutions, manifested their
adherence to the benevolent neutrality approach that requires accommodations
in interpreting the religion clauses.[127]
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates
the Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of the ponencia. What the ponencia pointed out was that even as early
as 1935, or more than three decades before the U.S. Court could validate the
exemption in Walz as a form or permissible accommodation, we have already
incorporated the same in our Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions
departure from the U.S. Constitution, insofar as religious accommodations are
concerned. It is indubitable that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution.[128] As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987
Constitution shows that these clauses were largely adopted
from the First Amendment of the U.S. Constitution
xxxx Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities
from U.S. jurisprudence without articulating the stark
distinction between the two streams
of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray
of U.S.religion clause jurisprudence and the two identifiable
streams; thus, when a religion clause case comes before the
Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will
have U.S. authorities to support it. Or, one might conclude that
as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the
Philippine religion clauses history. As a result, in a case where
the party claims religious liberty in the face of a general law
that inadvertently burdens his religious exercise, he faces an
 almost insurmountable wall in convincing the Court that the
wall of separation would not be breached if the Court grants
him an exemption. These conclusions, however, are not and
were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in
all three constitutions. It is a cardinal rule in constitutional
construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be
reconciled and harmonized in a manner that will give to all of
them full force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement
of this intent is the goal of construing the
constitution.[129] [citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S.
Courts interpretation of the religion clauses to effectively deny accommodations on
the sole basis that the law in question is neutral and of general application. For
even if it were true that an unbroken line of U.S. Supreme Court decisions has
never held that an individuals religious beliefs [do not] excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate, our own Constitutions have made significant changes to accommodate
and exempt religion. Philippine jurisprudence shows that the Court has
allowed exemptions from a law of general application, in effect, interpreting
our religion clauses to cover both mandatory and permissive
accommodations.[130]
To illustrate, in American Bible Society v. City of Manila,[131] the Court
granted to plaintiff exemption from a law of general application based on the Free
Exercise Clause. In this case, plaintiff was required by an ordinance to secure a
mayors permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the citys ordinances. Plaintiff argued
that this amounted to religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines. Although the Court
categorically held that the questioned ordinances were not applicable to plaintiff as
it was not engaged in the business or occupation of selling said merchandise for
profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure
a license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs as the
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment. The decision states in part, viz:
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries with it the
right to disseminate religious information. Any restraint of such
right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present
danger of any substantive evil which the State has the right
to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The
Division Superintendent of Schools.[132] The case involved several Jehovahs
Witnesses who were expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court
overturned an earlier ruling denying such exemption,[133] using the grave and
imminent danger test, viz:
The sole justification for a prior restraint or
limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in
German v. Barangan, 135 SCRA 514, 517) is the existence of
a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to
public safety, the expulsion of the petitioners from the schools is
not justified.[134](emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of
general application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation.
The case of Victoriano v. Elizalde Rope Workers Union[135] is an example of the
application of Mr. Justice Carpios theory of permissive accommodation, where
religious exemption is granted by a legislative act.
In Victoriano, the constitutionality of Republic Act No. 3350 was questioned. The
said R.A. exempt employees from the application and coverage of a closed shop
agreementmandated in another lawbased on religious objections.
Aunanimous Court upheld the constitutionality of the law, holding that government
is not precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. Interestingly, the secular
purpose of the challenged law which the Court upheld was the advancement of the
constitutional right to the free exercise of religion.[136]
Having established that benevolent neutrality-accommodation is the
framework by which free exercise cases must be decided, the next question then
turned to the test that should be used in ascertaining the limits of the exercise of
religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious
belief, as in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine
these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the clear
and present danger test but did not employ it. Nevertheless,
this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case
mentioned the immediate and grave danger test as well as the
doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the compelling state
interest test. After Victoriano, German went back to
the Gerona rule. Ebralinag then employed the grave and
immediate 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 Geronaand 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
neutralityapproach, 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 states interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice
 to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the
hierarchy of rights - the most inalienable and sacred of all human
rights, in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the aid of Almighty
God in order to build a just and humane society and establish a
government. As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with
just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for
to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In
determining which shall prevail between the states interest and
religious liberty, reasonableness shall be the guide. The
compelling state interest serves the purpose of revering religious
liberty while at the same time affording protection to the
paramount interests of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the compelling state interest test, by
upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be
preserved. [137] (citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while
loosely disputing the applicability of the benevolent neutrality framework
and compelling state interest test, states that [i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation approach. If it
were true, indeed, that the religion clauses do not requireaccommodations based
on the free exercise of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any and all claims for religious
exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that [m]aking a distinction between
permissive accommodation and mandatory accommodation is more critically
important in analyzing free exercise exemption claims because it forces the Court
to confront how far it can validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the separation theory and accommodation
theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith case) just because it does not espouse the
theory selected. He then asserts that the Smith doctrine cannot be dismissed
because it does not really espouse the strict neutrality approach, but more of
permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the
doctrine in Smith is that only legislative accommodations are allowed under the
Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even assuming
that the Smith doctrine actually espouses the theory of accommodation or
benevolent neutrality, the accommodation is limited to the permissive, or legislative
exemptions. It, therefore, cannot be used as a test in determining the claims of
religious exemptions directly under the Free Exercise Clause because Smith does
not recognize such exemption. Moreover, Mr. Justice Carpios advocacy of
the Smith doctrine would effectively render the Free Exercise protectiona
fundamental right under our Constitutionnugatory because he would deny its
status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-
step process. We explained this process in detail, by showing the questions which
must be answered in each step, viz:
 First, [H]as the statute or government action created a burden
on the free exercise of religion? The courts often look into
the sincerity of the religious belief, but without inquiring into the
truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimants belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: [I]s there a sufficiently
compelling state interest to justify this infringement of religious
liberty? In this step, the government has to establish that its
purposes are legitimate for the state and that they are
compelling. Government must do more than assert the
objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined
if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: [H]as the state in achieving its legitimate
purposes used the least intrusive means possible so that the
free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state? The analysis requires
the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it
has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties
xxx.[138] [citations omitted]
Again, the application of the compelling state interest test could result
to three situations of accommodation: First, mandatory accommodation would
result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests,permissive
accommodation results. Finally, if the Court finds that that establishment
concerns prevail over potential accommodation interests, then it must rule that
the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only
permissive accommodation can carve out an exemption from a law of general
application. He posits the view that the law should prevail in the absence of a
legislative exemption, and the Court cannot make the accommodation or
exemption.
Mr. Justice Carpios position is clearly not supported by Philippine
jurisprudence. The cases of American Bible
Society, Ebralinag, and Victoriano demonstrate that our application of the
doctrine of benevolent neutrality-accommodation covers not only the grant
of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is
possible, even if anchored directly on an invocation of the Free Exercise Clause
alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet
wherein the Court granted an accommodation/exemption to a religious act from
the application of general penal laws, permissive accommodation based on
religious freedom has been granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,[139] the U.S.
Court expressly denied to Mormons an exemption from a general federal law
criminalizing polygamy, even if it was proven that the practice constituted a
religious duty under their faith.[140] In contradistinction, Philippine law
accommodates the same practice among Moslems, through a legislative act. For
while the act of marrying more than one still constitutes bigamy under the Revised
Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime
of bigamy shall not apply to a person marriedunder Muslim law. Thus, by
legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized
this accommodation when, in his dissent in our Decision dated August 4, 2003 and
citing Sulu Islamic Association of Masjid Lambayong v. Malik,[141] he stated
that a Muslim Judge is not criminally liable for bigamy because Sharia law allows a
Muslim to have more than one wife.
From the foregoing, the weakness of Mr. Justice Carpios permissive-
accommodation only advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that the guaranty of religious liberty
as embodied in the Free Exercise Clause does not require the grant of exemptions
from generally applicable laws to individuals whose religious practice conflict with
those laws, his theory is infirmed by the showing that the benevolent neutrality
approach which allows for both mandatory and permissive
accommodations was unequivocally adopted by our framers in the Philippine
Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a permissive
accommodation-only stance is the antithesis to the notion that religion clauses, like
the other fundamental liberties found in the Bill or Rights, is a preferred right and
an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that
the test in Sherbert is not applicable when the law in question is a generally
applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded that
there is no question that in the Philippine context, accommodations are made, the
question remains as to how far the exemptions will be made and who would make
these exemptions.
On this point, two things must be clarified: first, in relation to criminal
statutes, only the question of mandatory accommodation is uncertain, for
Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions in general
(i.e., finding that the Free Exercise Clause required the accommodation,
or mandatory accommodations) has already been decided, not just once, but
twice by the Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving
criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the
following reasons.
First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent neutrality-
accommodation approach in Philippine jurisdiction is more pronounced and given
leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the
notion of mandatory accommodations, was to address the inadvertent
burdensome effect that an otherwise facially neutral law would have on religious
exercise. Just because the law is criminal in nature, therefore, should not bring it
out of the ambit of the Free Exercise Clause. As stated by Justice OConnor in her
concurring opinion in Smith, [t]here is nothing talismanic about neutral laws of
general applicability or general criminal prohibitions, for laws neutral towards
religion can coerce a person to violate his religious conscience or intrude upon his
religious duties just as effectively as laws aimed at religion.[142]
Third, there is wisdom in accommodation made by the Court as this is
the recourse of minority religions who are likewise protected by the Free Exercise
Clause. Mandatory accommodations are particularly necessary to protect
adherents of minority religions from the inevitable effects of majoritarianism, which
include ignorance and indifference and overt hostility to the minority. As stated in
our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come
into conflict with the religious scruples of those holding different
world views, even in the absence of a deliberate intent to
interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes
so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural
 traditions, legislators and executive officials are frequently willing
to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious
practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents
needless injury to the religious consciences of those who
can have an influence in the legislature; while a
constitutional interpretation that requires accommodations
extends this treatment to religious faiths that are less able
to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely
an alien concept, nor will it be applied for the first time, as an exemption of such
nature, albeit by legislative act, has already been granted to Moslem polygamy
and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--
vis the other fundamental rights in the Bill of Rights. It has been noted that unlike
other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of due
process, unreasonableness, or lawful order. Only the right to free speech is
comparable in its absolute grant. Given the unequivocal and unqualified grant
couched in the language, the Court cannot simply dismiss a claim of exemption
based on the Free Exercise Clause, solely on the premise that the law in question
is a general criminal law. [143] If the burden is great and the sincerity of the religious
belief is not in question, adherence to the benevolent neutrality-
accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent
neutrality-accommodation approach does not mean that the Court ought to
grant exemptions every time a free exercise claim comes before it. This is an
erroneous reading of the framework which the dissent of Mr. Justice Carpio seems
to entertain. Although benevolent neutrality is the lens with which the Court ought
to view religion clause cases, the interest of the state should also be afforded
utmost protection. This is precisely the purpose of the testto draw the line
between mandatory, permissible and forbidden religious exercise. Thus, under
the framework, the Court cannot simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the
orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the
protection afforded by the religion clauses of the Constitution.[144] As stated in the
Decision:
xxx While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the
degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal
towards which religious clause jurisprudence should be
directed.We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach
not only because of its merits as discussed above, but more
importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is
the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which
this approach is directed is the protection of religious
liberty not only for a minority, however small- not only for a
majority, however large but for each of us to the greatest
extent possible within flexible constitutional limits.[145]
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision.
As mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of
the compelling state interest test, i.e., determining whether respondent is
entitled to exemption, an issue which is essentially factual or evidentiary in nature.
 After the termination of further proceedings with the OCA, and with the
transmittal of the Hearing Officers report,[146] along with the evidence submitted by
the OSG, this case is once again with us, to resolve the penultimate question of
whether respondent should be found guilty of the administrative charge of
disgraceful and immoral conduct. It is at this point then that we examine the report
and documents submitted by the hearing officer of this case, and apply the three-
step process of the compelling state interest test based on the evidence
presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General
categorically concedes that the sincerity and centrality of respondents claimed
religious belief and practice are beyond serious doubt.[147] Thus, having previously
established the preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the free exercise of
respondents religious beliefs, and there being no doubt as to the sincerity and
centrality of her faith to claim the exemption based on the free exercise clause,
the burden shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least restrictive means of
achieving that objective.
A look at the evidence that the OSG has presented fails to
demonstrate the gravest abuses, endangering paramount interests which
could limit or override respondents fundamental right to religious freedom.
Neither did the government exert any effort to show that the means it seeks
to achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. EXHIBIT A-OSG AND SUBMARKING The September 30,
2003 Letter to the OSG of Bro. Raymond B. Leach, Legal
Representative of the Watch Tower Bible and Tract Society
of the Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine
the sincerity and centrality of respondents claimed religious
belief and practice.
2. EXHIBIT B-OSG AND SUBMARKING The duly notarized
certification dated September 30, 2003 issued and signed
by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of
respondents claimed religious belief and practice; and (2) to
prove that the Declaration of Pledging Faithfulness, being a
purely internal arrangement within the congregation of the
Jehovahs Witnesses, cannot be a source of any legal
protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has
a compelling interest to override respondents claimed religious belief and practice,
in order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution[148] and the Family Code,[149] argues that
marriage and the family are so crucial to the stability and peace of the nation that
the conjugal arrangement embraced in the Declaration of Pledging Faithfulness
should not be recognized or given effect, as it is utterly destructive of the avowed
institutions of marriage and the family for it reduces to a mockery these legally
exalted and socially significant institutions which in their purity demand respect
and dignity.[150]
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the
Solicitor General in so far as he asserts that the State has a compelling interest in
the preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against concubinage
and bigamy. He also argues that in dismissing the administrative complaint against
respondent, the majority opinion effectively condones and accords a semblance of
legitimacy to her patently unlawful cohabitation... and facilitates the circumvention
of the Revised Penal Code. According to Mr. Justice Carpio, by choosing to turn a
blind eye to respondents criminal conduct, the majority is in fact recognizing a
practice, custom or agreement that subverts marriage. He argues in a similar
fashion as regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in the sound
administration of justice. Indeed, the provisions by which respondents relationship
is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code,
and even the provisions on marriage and family in the Civil Code and Family Code,
all clearly demonstrate the States need to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as
one of the fundamental rights in our Constitution. It is a fundamental right that
enjoys a preferred position in the hierarchy of rights the most inalienable
and sacred of human rights, in the words of Jefferson. Hence, it is not enough
to contend that the states interest is important, because our Constitution itself
holds the right to religious freedom sacred. The State must articulate in specific
terms the state interest involved in preventing the exemption, which must
be compelling, for only the gravest abuses, endangering paramount interests can
limit the fundamental right to religious freedom. To rule otherwise would be to
emasculate the Free Exercise Clause as a source of right by itself.
Thus, it is not the States broad interest in protecting the institutions of
marriage and the family, or even in the sound administration of justice that must be
weighed against respondents claim, but the States narrow interest in refusing to
make an exception for the cohabitation which respondents faith finds moral. In
other words, the government must do more than assert the objectives at risk
if exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted.[151] This, the Solicitor
General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest
test, the States interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not, in
fact, attempt to enforce that prohibition. In the case at bar, the State has not
evinced any concrete interest in enforcing the concubinage or bigamy charges
against respondent or her partner. The State has never sought to prosecute
respondent nor her partner. The States asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the
words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our
Decision, dated August 4, 2003, to deny the exemption would effectively break up
an otherwise ideal union of two individuals who have managed to stay together as
husband and wife [approximately twenty-five years] and have the effect of
defeating the very substance of marriage and the family.
The Solicitor General also argued against respondents religious freedom
on the basis of morality, i.e., that the conjugal arrangement of respondent and her
live-in partner should not be condoned because adulterous relationships are
constantly frowned upon by society;[152] and that State laws on marriage, which are
moral in nature, take clear precedence over the religious beliefs and practices of
any church, religious sect or denomination on marriage. Verily, religious beliefs
and practices should not be permitted to override laws relating to public policy
such as those of marriage.[153]
The above arguments are mere reiterations of the arguments raised by
Mme. Justice Ynares-Santiago in her dissenting opinion to our Decision
dated August 4, 2003, which she offers again in toto. These arguments have
already been addressed in our decision dated August 4, 2003.[154] In said Decision,
we noted that Mme. Justice Ynares-Santiagos dissenting opinion dwelt more on
the standards of morality, without categorically holding that religious freedom is not
in issue.[155] We, therefore, went into a discussion on morality, in order to show
that:
(a) The public morality expressed in the law is
necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including
the morality it sanctions.[156] Thus, when the law speaks
of immorality in the Civil Service Law or immoral in the Code of
Professional Responsibility for lawyers,[157] or public morals in
the Revised Penal Code,[158] or morals in the New Civil
Code,[159] or moral character in the Constitution,[160] the
distinction between public and secular morality on the one hand,
and religious morality, on the other, should be kept in mind;[161]
 (b) Although the morality contemplated by laws is
secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it
does not offend compelling state interests;[162]
(c) The jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement the Court makes
in the case at bar should be understood only in this realm where
it has authority.[163]
(d) Having distinguished between public and secular
morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular
morality fall under the phrase disgraceful and immoral conduct
for which a government employee may be held administratively
liable.[164] Only one conduct is in question before this Court, i.e.,
the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and
jurisprudence consider both immoral and illegal.[165]
(e) While there is no dispute that under settled
jurisprudence, respondents conduct constitutes disgraceful and
immoral conduct, the case at bar involves the defense of
religious freedom, therefore none of the cases cited by Mme.
Justice Ynares-Santiago apply.[166] There is no jurisprudence in
Philippine jurisdiction holding that the defense of religious
freedom of a member of the Jehovahs Witnesses under the
same circumstances as respondent will not prevail over the laws
on adultery, concubinage or some other law. We cannot
summarily conclude therefore
that her conduct is likewise so odious and barbaric as to be
immoral and punishable by law.[167]
Again, we note the arguments raised by Mr. Justice Carpio with respect to
charging respondent with conduct prejudicial to the best interest of the service,
and we reiterate that the dissent offends due process as respondent was not given
an opportunity to defend herself against the charge of conduct prejudicial to the
best interest of the service.Indeed, there is no evidence of the alleged prejudice to
the best interest of the service.[168]
Mr. Justice Carpios slippery slope argument, on the other hand, is non-
sequitur. If the Court grants respondent exemption from the laws which respondent
Escritor has been charged to have violated, the exemption would not apply to
Catholics who have secured church annulment of their marriage even without a
final annulment from a civil court.First, unlike Jehovahs Witnesses, the Catholic
faith considers cohabitation without marriage as immoral. Second, but more
important, the Jehovahs Witnesses have standards and procedures which must be
followed before cohabitation without marriage is given the blessing of the
congregation. This includes an investigative process whereby the elders of the
congregation verify the circumstances of the declarants. Also, the Declaration is
not a blanket authority to cohabit without marriage because once all legal
impediments for the couple are lifted, the validity of the Declaration ceases, and
the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is
speculative. Nevertheless, insofar as he raises the issue of equality among
religions, we look to the words of the Religion Clauses, which clearly single out
religion for both a benefit and a burden: No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof On its face, the
language grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage, preventing the
government from supporting it. To understand this as a provision which puts
religion on an equal footing with other bases for action seems to be a curious
reading.There are no free exercise of establishment provisions for science, sports,
philosophy, or family relations. The language itself thus seems to answer whether
we have a paradigm of equality or liberty; the language of the Clause is clearly in
the form of a grant of liberty. [169]
In this case, the governments conduct may appear innocent and
nondiscriminatory but in effect, it is oppressive to the minority. In the interpretation
of a document, such as the Bill of Rights, designed to protect the minority from the
majority, the question of which perspective is appropriate would seem easy to Thus, we find that in this particular case and under these distinct
answer. Moreover, the text, history, structure and values implicated in the circumstances, respondent Escritors conjugal arrangement cannot be penalized
interpretation of the clauses, all point toward this perspective. Thus, substantive as she has made out a case for exemption from the law based on her fundamental
equalitya reading of the religion clauses which leaves both politically dominant and right to freedom of religion. The Court recognizes that state interests must be
the politically weak religious groups equal in their inability to use the government upheld in order that freedoms - including religious freedom - may be enjoyed. In
(law) to assist their own religion or burden othersmakes the most sense in the the area of religious exercise as a preferred freedom, however, man stands
interpretation of the Bill of Rights, a document designed to protect minorities and accountable to an authority higher than the state, and so the state interest sought
individuals from mobocracy in a democracy (the majority or a coalition of to be upheld must be so compelling that its violation will erode the very fabric of
minorities). [170] the state that will also protect the freedom. In the absence of a showing that such
state interest exists, man must be allowed to subscribe to the Infinite.
As previously discussed, our Constitution adheres to the benevolent
neutrality approach that gives room for accommodation of religious exercises as IN VIEW WHEREOF, the instant administrative complaint is DISMISSED.
required by the Free Exercise Clause.[171] Thus, in arguing that respondent should
be held administratively liable as the arrangement she had was illegal per SO ORDERED.
se because, by universally recognized standards, it is inherently or by its very
nature bad, improper, immoral and contrary to good conscience,[172] the Solicitor
General failed to appreciate that benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interests.[173] REYNATO S. PUNO
Associate Justice
Finally, even assuming that the OSG has proved a compelling state
interest, it has to further demonstrate that the state has used the least
intrusive means possible so that the free exercise is not infringed any more
than necessary to achieve the legitimate goal of the state, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on
religious liberties.[174] Again, the Solicitor General utterly failed to prove this
element of the test. Other than the two documents offered as cited above which
established the sincerity of respondents religious belief and the fact that the
agreement was an internal arrangement within respondents congregation, no iota
of evidence was offered. In fact, the records are bereft of even a feeble attempt
to procure any such evidence to show that the means the state adopted in
pursuing this compelling interest is the least restrictive to respondents religious
freedom.

EN BANC
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President
on December 17, 2003. Respondent Commission on Elections (COMELEC)
refused to give due course to petitioners Certificate of Candidacy in its Resolution
No. 6558 dated January 17, 2004. The decision, however, was not unanimous
since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to
include petitioner as they believed he had parties or movements to back up his
candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558. Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-
001. The COMELEC, acting on petitioners Motion for Reconsideration and on
similar motions filed by other aspirants for national elective positions, denied the
same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004.
The COMELEC declared petitioner and thirty-five (35) others nuisance candidates
who could not wage a nationwide campaign and/or are not nominated by a political
party or are not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions
which were allegedly rendered in violation of his right to "equal access to
opportunities for public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can
afford to wage a nationwide campaign and/or are nominated by political parties. In
so doing, petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited the power of the
sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal qualifications for the
office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other countries, and
he has a platform of government. Petitioner likewise attacks the validity of the form
for the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that
the form does not provide clear and reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidates bio-data and
his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioners invocation of the constitutional provision ensuring "equal
access to opportunities for public office" is the claim that there is a constitutional
right to run for or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the level of an enforceable right.
There is nothing in the plain language of the provision which suggests such a
thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution,
entitled "Declaration of Principles and State Policies." The provisions under the
Article are generally considered not self-executing,2 and there is no plausible
reason for according a different treatment to the "equal access" provision. Like the
rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for
legislative or executive action.3 The disregard of the provision does not give rise to
any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26,
Article II had read, "The State shall broaden opportunities to public office and
prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr.
successfully brought forth an amendment that changed the word "broaden" to the
phrase "ensure equal access," and the substitution of the word "office" to "service."
He explained his proposal in this wise:
 I changed the word "broaden" to "ENSURE EQUAL ACCESS TO"
because what is important would be equal access to the opportunity. If
you broaden, it would necessarily mean that the government would
be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the
meaning of broadening opportunities to public service. So, in order that
we should not mandate the State to make the government the
number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access
to it, I change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as many people as possible into public office.
The approval of the "Davide amendment" indicates the design of the framers to
cast the provision as simply enunciatory of a desired policy objective and not
reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded
as the source of positive rights. It is difficult to interpret the clause as operative in
the absence of legislation since its effective means and reach are not properly
defined. Broadly written, the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was not the
intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may
be subjected to limitations. Some valid limitations specifically on the privilege to
seek elective office are found in the provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution No. 645210 dated December
10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse
to give due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination,
however, the equal access clause is not violated. Equality is not sacrificed as long
as the burdens engendered by the limitations are meant to be borne by any one
who is minded to file a certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the burdens which they
create.
Significantly, petitioner does not challenge the constitutionality or validity of
Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452
dated 10 December 2003. Thus, their presumed validity stands and has to be
accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in Section 26,
Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run for
office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the State
takes into account the practical considerations in conducting elections. Inevitably,
the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same
time, remedial actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization and its candidates on the ballot the interest, if no
other, in avoiding confusion, deception and even frustration of the
democratic [process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January 2004. As observed in the
COMELECs Comment:
There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a
mockery even if those who cannot clearly wage a national campaign are
allowed to run. Their names would have to be printed in the Certified List
of Candidates, Voters Information Sheet and the Official Ballots. These
would entail additional costs to the government. For the official ballots in
automated counting and canvassing of votes, an additional page would
 amount to more or less FOUR HUNDRED FIFTY MILLION PESOS
(450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if
they cannot wage a decent campaign enough to project the prospect of
winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the receipt of electoral
contributions.15Moreover, there are election rules and regulations the formulations
of which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy
becomes even more galling. The organization of an election with bona
fide candidates standing is onerous enough. To add into the mix candidates with
no serious intentions or capabilities to run a viable campaign would actually impair
the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral process, most probably
posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State
could exclude nuisance candidates and need not indulge in, as the song goes,
"their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of
the compelling State interest to ensure orderly and credible elections by excising
impediments thereto, such as nuisance candidacies that distract and detract from
the larger purpose. The COMELEC is mandated by the Constitution with the
administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fide candidates
for public office shall be free from any form of harassment and
discrimination.18 The determination of bona fidecandidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus
Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper
application in the case of the petitioner cannot be tested and reviewed by this
Court on the basis of what is now before it. The assailed resolutions of the
COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court
from reviewing at this instance whether the COMELEC committed grave abuse of
discretion in disqualifying petitioner, since such a review would necessarily take
into account the matters which the COMELEC considered in arriving at its
decisions.
Petitioner has submitted to this Court mere photocopies of various documents
purportedly evincing his credentials as an eligible candidate for the presidency. Yet
this Court, not being a trier of facts, can not properly pass upon the reproductions
as evidence at this level. Neither the COMELEC nor the Solicitor General
appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal
and factual. The basis of the factual determination is not before this Court. Thus,
the remand of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to
serve in the government. It deserves not a cursory treatment but a hearing which
conforms to the requirements of due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy,
suffice it to say that the form strictly complies with Section 74 of the Omnibus
Election Code. This provision specifically enumerates what a certificate of
candidacy should contain, with the required information tending to show that the
candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is
hereby remanded to the COMELEC for the reception of further evidence, to
determine the question on whether petitioner Elly Velez Lao Pamatong is a
nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election
report its findings to this Court with deliberate dispatch. process in mockery or disrepute;
c. Candidates whose certificate of candidacy could cause confusion among the voters by the
similarity of names and surnames with other candidates; and
SO ORDERED. d. Candidates who have no bona fide intention to run for the office for which the certificate of
candidacy had been filed or acts that clearly demonstrate the lack of such bona fide intention, such
as:
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval- d.1 Candidates who do not belong to or are not nominated by any registered political party of national
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and constituency;
Azcuna, JJ., concur. d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president,
respectively, nor senatorial candidates;
d.3 Candidates who do not have a platform of government and are not capable of waging a
nationwide campaign.
11 Jenness v. Fortson, 403 U.S. 431 (1971).
Footnotes 12 Rollo, pp. 469.
* On Official Leave. 13 See Section 178, Omnibus Election Code, as amended.
1 Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit 14 See Section 239, Omnibus Election Code, as amended.
political dynasties as may be defined by law. 15 See Article XI, Omnibus Election Code, as amended.
2 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. 16 See Section 2(1), Article IX, Constitution.
Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which lays down a general principle, 17 Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967,
such as those found in Art. II of the 1987 Constitution, is usually not self-executing." Manila Prince 19 SCRA 911.
Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] 18 See Section 9, Article IX, Constitution.
held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State
Policies" should generally be construed as mere statements of principles of the State." Justice
Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474.
3 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila

Prince Hotel v. GSIS, supra note 2 at 436.

4 Kilosbayan, Inc. v. Morato, supra note 2.
5 "A searching inquiry should be made to find out if the provision is intended as a present enactment,

complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.
The inquiry demands a micro-analysis and the context of the provision in
question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2.
6 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.
7 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.
8 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA

792, 815.
9 Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a verified petition

of an interested party, refuse to give due course or cancel a certificate of candidacy if it is shown that
said certificate has been filed to put the election process in mockery or disrepute or to cause
confusion among the voters by the similarity of the names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run
for the office for which the certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate.
10 SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election, motu

proprio refuse to give due course to or cancel a certificate of candidacy of any candidate for the
positions of President, Vice-President, Senator and Party-list:
I. The grounds:
a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and
legal qualifications of the office to which they aspire to be elected;
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND
GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on Human Rights
("CHR") is again placed into focus in this petition for prohibition, with prayer for a
restraining order and preliminary injunction. The petitioners ask us to prohibit
public respondent CHR from further hearing and investigating CHR Case No. 90-
1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by
Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer of
the Quezon City Integrated Hawkers Management Council under the Office of the
City Mayor, was sent to, and received by, the private respondents (being the
officers and members of the North EDSA Vendors Association, Incorporated). In
said notice, the respondents were given a grace-period of three (3) days (up to 12
July 1990) within which to vacate the questioned premises of North EDSA.1Prior to
their receipt of the demolition notice, the private respondents were informed by
petitioner Quimpo that their stalls should be removed to give way to the "People's
Park".2 On 12 July 1990, the group, led by their President Roque Fermo, filed a
letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the
petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to
be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and carinderia along
North EDSA. The complaint was docketed as CHR Case No. 90-1580.3 On 23 July
1990, the CHR issued an Order, directing the petitioners "to desist from
demolishing the stalls and shanties at North EDSA pending resolution of the
vendors/squatters' complaint before the Commission" and ordering said petitioners
to appear before the CHR.4
On the basis of the sworn statements submitted by the private respondents on 31
July 1990, as well as CHR's own ocular inspection, and convinced that on 28 July
1990 the petitioners carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution of 1 August 1990, ordered
the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist from further
demolition, with the warning that violation of said order would lead to a citation for
contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction.
The motion also averred, among other things, that:
1. this case came about due to the alleged violation by the
(petitioners) of the Inter-Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the
moratorium referred to therein refers to moratorium in the
demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office
admitted in its resolution of 1 August 1990 that the complainants
are indeed, vendors;
5. that the complainants (were) occupying government land,
particularly the sidewalk of EDSA corner North Avenue, Quezon
City; . . . and
 6. that the City Mayor of Quezon City (had) the sole and
exclusive discretion and authority whether or not a certain
business establishment (should) be allowed to operate within the
jurisdiction of Quezon City, to revoke or cancel a permit, if
already issued, upon grounds clearly specified by law and
ordinance.8
During the 12 September 1990 hearing, the petitioners moved for postponement,
arguing that the motion to dismiss set for 21 September 1990 had yet to be
resolved. The petitioners likewise manifested that they would bring the case to the
courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the
petitioners, stating that the Commission's authority should be understood as being
confined only to the investigation of violations of civil and political rights, and that
"the rights allegedly violated in this case (were) not civil and political rights, (but)
their privilege to engage in business."9
On 21 September 1990, the motion to dismiss was heard and submitted for
resolution, along with the contempt charge that had meantime been filed by the
private respondents, albeit vigorously objected to by petitioners (on the ground that
the motion to dismiss was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt
for carrying out the demolition of the stalls, sari-sari stores and carinderia despite
the "order to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to
dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its
constitutional mandate had jurisdiction over the complaint filed
by the squatters-vendors who complained of the gross violations
of their human and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit.13
The CHR opined that "it was not the intention of the (Constitutional) Commission to
create only a paper tiger limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the power to provide
appropriate legal measures for the protection of human rights of all persons within
the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to
development, to life and to dignity. All these brazenly and
violently ignored and trampled upon by respondents with little
regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions have
psychologically scarred and traumatized the children, who were
witness and exposed to such a violent demonstration of Man's
inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was
denied.
Hence, this recourse.
The petition was initially dismissed in our resolution15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution16 of 18 June 1991, in which we
also issued a temporary restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and
authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected
by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused
from filing his comment for public respondent CHR. The latter thus filed its own
comment,18 through Hon. Samuel Soriano, one of its Commissioners. The Court
also resolved to dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July 1991, requiring
such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution.19 It was formally constituted by then President Corazon
Aquino via Executive Order No. 163,20 issued on 5 May 1987, in the exercise of
her legislative power at the time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights.21
The powers and functions22 of the Commission are defined by the 1987
Constitution, thus: to
(1) Investigate, on its own or on complaint by any party, all forms
of human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with the
Rules of Court;
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures
and legal aid services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other evidence
is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with law;
and
(11) Perform such other duties and functions as may be
provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR
theorizes that the intention of the members of the Constitutional Commission is to
make CHR a quasi-judicial body.23 This view, however, has not heretofore been
shared by this Court. In Cario v. Commission on Human Rights,24 the Court,
through then Associate Justice, now Chief Justice Andres Narvasa, has observed
that it is "only the first of the enumerated powers and functions that bears any
resemblance to adjudication or adjudgment," but that resemblance can in no way
be synonymous to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by
the fundamental law to be another court or quasi-judicial agency
in this country, or duplicate much less take over the functions of
the latter.
The most that may be conceded to the Commission in the way
of adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact finding
is not adjudication, and cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom
the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving
evidence and making factual conclusions in a controversy must
be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be
 decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be provided
by law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other
kernel of this controversy and, its is, to determine the extent of CHR's investigative
power.
It can hardly be disputed that the phrase "human rights" is so generic a term that
any attempt to define it, albeit not a few have tried, could at best be described as
inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that
has been propounded is "(w)hat do you understand by "human rights?" The
participants, representing different sectors of the society, have given the following
varied answers:
Human rights are the basic rights which inhere in man by virtue
of his humanity. They are the same in all parts of the world,
whether the Philippines or England, Kenya or the Soviet Union,
the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty,
and property; freedom of speech, of the press, of religion,
academic freedom, and the rights of the accused to due process
of law; political rights, such as the right to elect public officials, to
be elected to public office, and to form political associations and
engage in politics; and social rights, such as the right to an
education, employment, and social services.25
Human rights are the entitlement that inhere in the individual
person from the sheer fact of his humanity. . . . Because they are
inherent, human rights are not granted by the State but can only
be recognized and protected by it.26
(Human rights include all) the civil, political, economic, social,
and cultural rights defined in the Universal Declaration of Human
Rights.27
Human rights are rights that pertain to man simply because he is
human. They are part of his natural birth, right, innate and
inalienable.28
The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights
can be understood to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights, encompassing
almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and
in creating an independent commission to safeguard these rights? It may of value
to look back at the country's experience under the martial law regime which may
have, in fact, impelled the inclusions of those provisions in our fundamental law.
Many voices have been heard. Among those voices, aptly represented perhaps of
the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a
respected jurist and an advocate of civil liberties, who, in his paper, entitled
"Present State of Human Rights in the Philippines,"29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in
their Bill of Rights most of the human rights expressed in the
International Covenant, these rights became unavailable upon
the proclamation of Martial Law on 21 September 1972. Arbitrary
action then became the rule. Individuals by the thousands
became subject to arrest upon suspicion, and were detained and
held for indefinite periods, sometimes for years, without charges,
until ordered released by the Commander-in-Chief or this
representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were
strikes. Press and other mass media were subjected to
censorship and short term licensing. Martial law brought with it
the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the
Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof.
Torture to extort confessions were practiced as declared by
 international bodies like Amnesty International and the
International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we can
see the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made
clear in view of the importance of human rights and also
because civil and political rights have been determined by many
international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of
Rights and subsequent legislation. Otherwise, if we cover such a
wide territory in area, we might diffuse its impact and the precise
nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that
the commission can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and
political rights are very broad. The Article on the Bill of Rights
covers civil and political rights. Every single right of an individual
involves his civil right or his political right. So, where do we draw
the line?
MR. GARCIA. Actually, these civil and political rights have been
made clear in the language of human rights advocates, as well
as in the Universal Declaration of Human Rights which
addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on.
These are very specific rights that are considered enshrined in
many international documents and legal instruments as
constituting civil and political rights, and these are precisely what
we want to defend here.
MR. BENGZON. So, would the commissioner say civil and
political rights as defined in the Universal Declaration of Human
Rights?
MR. GARCIA. Yes, and as I have mentioned, the International
Covenant of Civil and Political Rights distinguished this right
against torture.
MR. BENGZON. So as to distinguish this from the other rights
that we have?
MR. GARCIA. Yes, because the other rights will encompass
social and economic rights, and there are other violations of
rights of citizens which can be addressed to the proper courts
and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define
its functions, and, therefore, in doing that the commission will be
authorized to take under its wings cases which perhaps
heretofore or at this moment are under the jurisdiction of the
ordinary investigative and prosecutorial agencies of the
government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we
would like to define the specific parameters which cover civil and
political rights as covered by the international standards
governing the behavior of governments regarding the particular
political and civil rights of citizens, especially of political
detainees or prisoners. This particular aspect we have
experienced during martial law which we would now like to
safeguard.
MR. BENGZON. Then, I go back to that question that I had.
Therefore, what we are really trying to say is, perhaps, at the
proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human
rights. Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of
Rights of our Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the
rights under the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political
rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of
human rights, I would like to state that in the past regime,
everytime we invoke the violation of human rights, the Marcos
regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent
housing and a life consistent with human dignity.
So, I think we should really limit the definition of human rights to
political rights. Is that the sense of the committee, so as not to
confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to
repeated points raised by the previous speaker.
There are actually six areas where this Commission on Human
Rights could act effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the prevention of
tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed
against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner
Garcia that we should, in order to make the proposed
Commission more effective, delimit as much as possible, without
prejudice to future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was actually
disturbed this morning when the reference was made without
qualification to the rights embodied in the universal Declaration
of Human Rights, although later on, this was qualified to refer to
civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner
Garcia, after mentioning the Universal Declaration of Human
Rights of 1948, mentioned or linked the concept of human right
with other human rights specified in other convention which I do
not remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the
Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner
mentioned another.
MR. GARCIA. Madam President, the other one is the
International Convention on Civil and Political Rights of which we
are signatory.
MR. GUINGONA. I see. The only problem is that, although I
have a copy of the Universal Declaration of Human Rights here,
I do not have a copy of the other covenant mentioned. It is quite
possible that there are rights specified in that other convention
which may not be specified here. I was wondering whether it
would be wise to link our concept of human rights to general
terms like "convention," rather than specify the rights contained
in the convention.
As far as the Universal Declaration of Human Rights is
concerned, the Committee, before the period of amendments,
could specify to us which of these articles in the Declaration will
fall within the concept of civil and political rights, not for the
purpose of including these in the proposed constitutional article,
but to give the sense of the Commission as to what human rights
would be included, without prejudice to expansion later on, if the
need arises. For example, there was no definite reply to the
question of Commissioner Regalado as to whether the right to
marry would be considered a civil or a social right. It is not a civil
right?
MR. GARCIA. Madam President, I have to repeat the various
specific civil and political rights that we felt must be envisioned
initially by this provision freedom from political detention and
arrest prevention of torture, right to fair and public trials, as well
as crimes involving disappearance, salvagings, hamlettings and
collective violations. So, it is limited to politically related crimes
precisely to protect the civil and political rights of a specific group
of individuals, and therefore, we are not opening it up to all of the
definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the
Gentlemen is no longer linking his concept or the concept of the
Committee on Human Rights with the so-called civil or political
rights as contained in the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier the Universal
Declaration of Human Rights, I was referring to an international
instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and
every specific article therein, but only to those that pertain to the
civil and politically related, as we understand it in this
Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to
the distinction between civil and social rights.
MR. GARCIA. There are two international covenants: the
International Covenant and Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
The second covenant contains all the different rights-the rights of
labor to organize, the right to education, housing, shelter, et
cetera.
MR. GUINGONA. So we are just limiting at the moment the
sense of the committee to those that the Gentlemen has
specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of
human rights, I cannot stress more on how much we need a
Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay
and very few lawyers will accept clients who do not pay. And so,
they are the ones more abused and oppressed. Another reason
is, the cases involved are very delicate torture, salvaging,
picking up without any warrant of arrest, massacre and the
persons who are allegedly guilty are people in power like
politicians, men in the military and big shots. Therefore, this
Human Rights Commission must be independent.
I would like very much to emphasize how much we need this
commission, especially for the little Filipino, the little individual
who needs this kind of help and cannot get it. And I think we
should concentrate only on civil and political violations because
if we open this to land, housing and health, we will have no place
to go again and we will not receive any response. . .
.30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution,
is a provision empowering the Commission on Human Rights to "investigate, on its
own or on complaint by any party, all forms of human rights violations involving
civil and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or
country, or, in wider sense, to all its inhabitants, and are not
connected with the organization or administration of the
government. They include the rights of property, marriage, equal
protection of the laws, freedom of contract, etc. Or, as otherwise
defined civil rights are rights appertaining to a person by virtue of
his citizenship in a state or community. Such term may also
refer, in its general sense, to rights capable of being enforced or
redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment for
debt.32
Political rights,33 on the other hand, are said to refer to the right to participate,
directly or indirectly, in the establishment or administration of government, the right
of suffrage, the right to hold public office, the right of petition and, in general, the
rights appurtenant to citizenship vis-a-vis the management of government.34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is
readily apparent that the delegates envisioned a Commission on Human Rights
that would focus its attention to the more severe cases of human rights violations.
Delegate Garcia, for instance, mentioned such areas as the "(1) protection of
rights of political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and
hamletting, and (6) other crimes committed against the religious." While the
enumeration has not likely been meant to have any preclusive effect, more than
just expressing a statement of priority, it is, nonetheless, significant for the tone it
has set. In any event, the delegates did not apparently take comfort in peremptorily
making a conclusive delineation of the CHR's scope of investigatorial jurisdiction.
They have thus seen it fit to resolve, instead, that "Congress may provide for other
cases of violations of human rights that should fall within the authority of the
Commission, taking into account its recommendation."35
In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as temporary
shanties, erected by private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land adjoins the North EDSA
of Quezon City which, this Court can take judicial notice of, is a busy national
highway. The consequent danger to life and limb is not thus to be likewise simply
ignored. It is indeed paradoxical that a right which is claimed to have been violated
is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that
as it may, looking at the standards hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are not prepared to conclude that the
order for the demolition of the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of "human rights violations involving
civil and political rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its
operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court." Accordingly, the CHR acted within
its authority in providing in its revised rules, its power "to cite or hold any person in
direct or indirect contempt, and to impose the appropriate penalties in accordance
with the procedure and sanctions provided for in the Rules of Court." That power to
cite for contempt, however, should be understood to apply only to violations of its
adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be
exercised against persons who refuse to cooperate with the said body, or who
unduly withhold relevant information, or who decline to honor summons, and the
like, in pursuing its investigative work. The "order to desist" (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does not possess.
In Export Processing Zone Authority vs. Commission on Human Rights,36 the
Court, speaking through Madame Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for
preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection" may not be construed to confer jurisdiction on the
Commission to issue a restraining order or writ of injunction for,
it that were the intention, the Constitution would have expressly
said so. "Jurisdiction is conferred only by the Constitution or by
law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services"
mentioned in the Constitution refer to extrajudicial and judicial
remedies (including a writ of preliminary injunction) which the
CHR may seek from proper courts on behalf of the victims of
 human rights violations. Not being a court of justice, the CHR
itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued "by the judge of any court in which
the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. . . . A writ of
preliminary injunction is an ancillary remedy. It is available only
in a pending principal action, for the preservation or protection of
the rights and interests of a party thereto, and for no other
purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government.37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way
of financial aid to the vendors affected by the demolition is not an appropriate
issue in the instant petition. Not only is there lack of locus standi on the part of the
petitioners to question the disbursement but, more importantly, the matter lies with
the appropriate administrative agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the
petitioners has become moot and academic since the case before it (CHR Case
No. 90-1580) has already been fully heard, and that the matter is merely awaiting
final resolution. It is true that prohibition is a preventive remedy to restrain the
doing of an act about to be done, and not intended to provide a remedy for an act
already accomplished. 38 Here, however, said Commission admittedly has yet to
promulgate its resolution in CHR Case No. 90-1580. The instant petition has been
intended, among other things, to also prevent CHR from precisely doing that.39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission
on Human Rights is hereby prohibited from further proceeding with CHR Case No.
90-1580 and from implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo, Quiason and Puno, JJ., concur.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human
rights, et al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the
resolution of 29 January 1991 and my dissenting opinion in "Export Processing
Zone Authority vs. The Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered
view that the CHR can issue a cease and desist order to maintain a status
quo pending its investigation of a case involving an alleged human rights violation;
that such cease and desist order maybe necessary in situations involving a
threatened violation of human rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of the stalls, sari-
sari stores and carinderias as well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights violation because it
involves an impairment of the civil rights of said private respondents, under the
definition of civil rights cited by the majority opinion (pp. 20-21) and which the CHR
has unquestioned authority to investigate (Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend beyond impressive
displays of placards at street corners. Positive action and results are what count.
Certainly, the cause of human rights is not enhanced when the very constitutional
agency tasked to protect and vindicate human rights is transformed by us, from the
start, into a tiger without dentures but with maimed legs to boot. I submit the CHR
should be given a wide latitude to look into and investigate situations which may
(or may not ultimately) involve human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the
CHR for further proceedings.
# Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human
rights, et al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the
resolution of 29 January 1991 and my dissenting opinion in "Export Processing
Zone Authority vs. The Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered
view that the CHR can issue a cease and desist order to maintain a status
quo pending its investigation of a case involving an alleged human rights violation;
that such cease and desist order maybe necessary in situations involving a
threatened violation of human rights, which the CHR intents to investigate.

In the case at bench, I would consider the threatened demolition of the stalls, sari-
sari stores and carinderias as well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights violation because it
involves an impairment of the civil rights of said private respondents, under the
definition of civil rights cited by the majority opinion (pp. 20-21) and which the CHR
has unquestioned authority to investigate (Section 18, Art. XIII, 1987 Constitution).

Human rights demand more than lip service and extend beyond impressive
displays of placards at street corners. Positive action and results are what count.
Certainly, the cause of human rights is not enhanced when the very constitutional
agency tasked to protect and vindicate human rights is transformed by us, from the
start, into a tiger without dentures but with maimed legs to boot. I submit the CHR
should be given a wide latitude to look into and investigate situations which may
(or may not ultimately) involve human rights violations.

ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the
CHR for further proceedings.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and
TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas
Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short),
a firm "engaged principally in the recruitment of Filipino workers, male and female,
for overseas placement," 1 challenges the Constitutional validity of Department
Order No. 1, Series of 1988, of the Department of Labor and Employment, in the
character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF
DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this
petition for certiorari and prohibition. Specifically, the measure is assailed for
"discrimination against males or females;" 2 that it "does not apply to all Filipino
workers but only to domestic helpers and females with similar skills;" 3 and that it is
violative of the right to travel. It is held likewise to be an invalid exercise of the
lawmaking power, police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the
Constitution, providing for worker participation "in policy and decision-making
processes affecting their rights and benefits as may be provided by
law." 4 Department Order No. 1, it is contended, was passed in the absence of
prior consultations. It is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable injury" that PASEI
members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of
Labor and Administrator of the Philippine Overseas Employment Administration,
filed a Comment informing the Court that on March 8, 1988, the respondent Labor
Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada,
Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting
the validity of the challenged "guidelines," the Solicitor General invokes the police
power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power
measure. The only question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been
defined as the "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare." 5 As defined, it consists
of (1) an imposition of restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been, purposely,
veiled in general terms to underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate
the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuring the greatest
benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the Charter. Along with the taxing power and eminent domain, it is inborn
in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, 7 refers to it succinctly as the
plenary power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and
it is not inaptly termed the "law of overwhelming necessity." It may be said to be
that inherent and plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is
"rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not
purport to be an absolute guaranty of individual rights and liberties "Even liberty
itself, the greatest of all rights, is not unrestricted license to act according to one's
will." 11 It is subject to the far more overriding demands and requirements of the
greater number.
Notwithstanding its extensive sweep, police power is not without its own
limitations. For all its awesome consequences, it may not be exercised arbitrarily
or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is
exercised, that is, to advance the public good. Thus, when the power is used to
further private interests at the expense of the citizenry, there is a clear misuse of
the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear
and convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure
should be nullified. There is no question that Department Order No. 1 applies only
to "female contract workers," 14 but it does not thereby make an undue
discrimination between the sexes. It is well-settled that "equality before the law"
under the Constitution 15does not import a perfect Identity of rights among all men
and women. It admits of classifications, provided that (1) such classifications rest
on substantial distinctions; (2) they are germane to the purposes of the law; (3)
they are not confined to existing conditions; and (4) they apply equally to all
members of the same class. 16
The Court is satisfied that the classification made-the preference for female
workers rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has
befallen our female labor force abroad, especially domestic servants, amid
exploitative working conditions marked by, in not a few cases, physical and
personal abuse. The sordid tales of maltreatment suffered by migrant Filipina
workers, even rape and various forms of torture, confirmed by testimonies of
returning workers, are compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is called upon to protect
victims of exploitation. In fulfilling that duty, the Court sustains the Government's
efforts.
The same, however, cannot be said of our male workers. In the first place, there is
no evidence that, except perhaps for isolated instances, our men abroad have
been afflicted with an Identical predicament. The petitioner has proffered no
argument that the Government should act similarly with respect to male workers.
The Court, of course, is not impressing some male chauvinistic notion that men are
superior to women. What the Court is saying is that it was largely a matter of
evidence (that women domestic workers are being ill-treated abroad in massive
instances) and not upon some fanciful or arbitrary yardstick that the Government
acted in this case. It is evidence capable indeed of unquestionable demonstration
and evidence this Court accepts. The Court cannot, however, say the same thing
as far as men are concerned. There is simply no evidence to justify such an
inference. Suffice it to state, then, that insofar as classifications are concerned, this
Court is content that distinctions are borne by the evidence. Discrimination in this
case is justified.
As we have furthermore indicated, executive determinations are generally final on
the Court. Under a republican regime, it is the executive branch that enforces
policy. For their part, the courts decide, in the proper cases, whether that policy, or
the manner by which it is implemented, agrees with the Constitution or the laws,
but it is not for them to question its wisdom. As a co-equal body, the judiciary has
great respect for determinations of the Chief Executive or his subalterns,
especially when the legislature itself has specifically given them enough room on
how the law should be effectively enforced. In the case at bar, there is no
gainsaying the fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers granted by the Labor
Code. But what should be noted is the fact that in spite of such a fiction of finality,
the Court is on its own persuaded that prevailing conditions indeed call for a
deployment ban.
There is likewise no doubt that such a classification is germane to the purpose
behind the measure. Unquestionably, it is the avowed objective of Department
Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this
Court has no quarrel that in the midst of the terrible mistreatment Filipina workers
have suffered abroad, a ban on deployment will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to
apply indefinitely so long as those conditions exist. This is clear from the Order
itself ("Pending review of the administrative and legal measures, in the Philippines
and in the host countries . . ."18), meaning to say that should the authorities arrive
at a means impressed with a greater degree of permanency, the ban shall be
lifted. As a stop-gap measure, it is possessed of a necessary malleability,
depending on the circumstances of each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the
Philippine Overseas Employment Administration (POEA), lift the
suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines,
and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female
domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not
an argument for unconstitutionality. Had the ban been given universal applicability,
then it would have been unreasonable and arbitrary. For obvious reasons, not all
of them are similarly circumstanced. What the Constitution prohibits is the singling
out of a select person or group of persons within an existing class, to the prejudice
of such a person or group or resulting in an unfair advantage to another person or
group of persons. To apply the ban, say exclusively to workers deployed by A, but
not to those recruited by B, would obviously clash with the equal protection clause
of the Charter. It would be a classic case of what Chase refers to as a law that
"takes property from A and gives it to B." 21 It would be an unlawful invasion of
property rights and freedom of contract and needless to state, an invalid
act. 22 (Fernando says: "Where the classification is based on such distinctions that
make a real difference as infancy, sex, and stage of civilization of minority groups,
the better rule, it would seem, is to recognize its validity only if the young, the
women, and the cultural minorities are singled out for favorable treatment. There
would be an element of unreasonableness if on the contrary their status that calls
for the law ministering to their needs is made the basis of discriminatory legislation
against them. If such be the case, it would be difficult to refute the assertion of
denial of equal protection." 23 In the case at bar, the assailed Order clearly accords
protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on
overseas deployment. From scattered provisions of the Order, it is evident that
such a total ban has hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic
helpers and workers of similar skills defined herein to the
following [sic] are authorized under these guidelines and are
exempted from the suspension.
5.1 Hirings by immediate members of the
family of Heads of State and Government;
5.2 Hirings by Minister, Deputy Minister and
the other senior government officials; and
5.3 Hirings by senior officials of the diplomatic
corps and duly accredited international
organizations.
5.4 Hirings by employers in countries with
whom the Philippines have [sic] bilateral labor
agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF
SIMILAR SKILLS--Vacationing domestic helpers and/or workers
of similar skills shall be allowed to process with the POEA and
leave for worksite only if they are returning to the same employer
to finish an existing or partially served employment contract.
Those workers returning to worksite to serve a new employer
shall be covered by the suspension and the provision of these
guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the
Philippine Overseas Employment Administration (POEA), lift the
suspension in countries where there are:
1. Bilateral agreements or understanding with
the Philippines, and/or,
 2. Existing mechanisms providing for sufficient
safeguards to ensure the welfare and
protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair
the right. The right to travel is subject, among other things, to the requirements of
"public safety," "as may be provided by law." 25 Department Order No. 1 is a valid
implementation of the Labor Code, in particular, its basic policy to "afford
protection to labor," 26 pursuant to the respondent Department of Labor's rule-
making authority vested in it by the Labor Code. 27 The petitioner assumes that it is
unreasonable simply because of its impact on the right to travel, but as we have
stated, the right itself is not absolute. The disputed Order is a valid qualification
thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an
invalid exercise of legislative power. It is true that police power is the domain of the
legislature, but it does not mean that such an authority may not be lawfully
delegated. As we have mentioned, the Labor Code itself vests the Department of
Labor and Employment with rulemaking powers in the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in
policy and decision-making processes affecting their rights and benefits" 29 is not
well-taken. The right granted by this provision, again, must submit to the demands
and necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 30
"Protection to labor" does not signify the promotion of employment alone. What
concerns the Constitution more paramountly is that such an employment be above
all, decent, just, and humane. It is bad enough that the country has to send its
sons and daughters to strange lands because it cannot satisfy their employment
needs at home. Under these circumstances, the Government is duty-bound to
insure that our toiling expatriates have adequate protection, personally and
economically, while away from home. In this case, the Government has evidence,
an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of
such protection, and as part of its duty, it has precisely ordered an indefinite ban
on deployment.
The Court finds furthermore that the Government has not indiscriminately made
use of its authority. It is not contested that it has in fact removed the prohibition
with respect to certain countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must
yield to the loftier purposes targetted by the Government. 31 Freedom of contract
and enterprise, like all other freedoms, is not free from restrictions, more so in this
jurisdiction, where laissez faire has never been fully accepted as a controlling
economic way of life.
This Court understands the grave implications the questioned Order has on the
business of recruitment. The concern of the Government, however, is not
necessarily to maintain profits of business firms. In the ordinary sequence of
events, it is profits that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The Government has
convinced the Court in this case that this is its intent. We do not find the impugned
Order to be tainted with a grave abuse of discretion to warrant the extraordinary
relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.
 SECOND DIVISION
[G.R. No. 134625. August 31, 1999]
UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR
ROGER POSADAS, DR. EMERLINDA ROMAN, DEAN CONSUELO
PAZ, DR. ISAGANI MEDINA, DR. MARIA SERENA DIOKNO, DR.
OLIVIA CAOILI, DR. FRANCISCO NEMENZO II, DEAN PACIFICO
AGABIN, CARMELITA GUNO, and MARICHU LAMBINO, petitioners,
vs. HON. COURT OF APPEALS and AROKIASWAMY WILLIAM
MARGARET CELINE, respondents.
DECISION
MENDOZA, J.:
For review before the Court is the decision of the Court of Appeals[1] in CA-
G.R. SP No. 42788, dated December 16, 1997, which granted private respondents
application for a writ of mandatory injunction, and its resolution, dated July 13,
1998, denying petitioners motion for reconsideration.
The antecedent facts are as follows:
Private respondent Arokiaswamy William Margaret Celine is a citizen of India
and holder of a Philippine visitors visa. Sometime in April 1988, she enrolled in the
doctoral program in Anthropology of the University of the Philippines College of
Social Sciences and Philosophy (CSSP) in Diliman, Quezon City.
After completing the units of course work required in her doctoral program,
private respondent went on a two-year leave of absence to work as Tamil
Programme Producer of the Vatican Radio in the Vatican and as General Office
Assistant at the International Right to Life Federation in Rome. She returned to the
Philippines in July 1991 to work on her dissertation entitled, Tamil Influences in
Malaysia, Indonesia and the Philippines.
On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P.
Department of Anthropology, wrote a letter to Dr. Maria Serena Diokno, CSSP
Associate Dean and Graduate Program Director, certifying that private respondent
had finished her dissertation and was ready for her oral defense. Dr. Rolda
suggested that the oral defense be held on January 6, 1993 but, in a letter, dated
February 2, 1993, Dr. Serena Diokno rescheduled it on February 5, 1993. Named
as members of the dissertation panel were Drs. E. Arsenio Manuel, Serafin
Quiason, Sri Skandarajah, Noel Teodoro, and Isagani Medina, the last included as
the deans representative.
After going over private respondents dissertation, Dr. Medina informed CSSP
Dean Consuelo Joaquin-Paz that there was a portion in private respondents
dissertation that was lifted, without proper acknowledgment, from
Balfours Cyclopaedia of India and Eastern and Southern Asia (1967), volume I, pp.
392-401 (3 v., Edward Balfour 1885 reprint) and from John Edyes article entitled
Description of the Various Classes of Vessels Constructed and Employed by the
Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon for their
Coasting Navigation in the Royal Asiatic Society of Great Britain and Ireland
Journal, volume I, pp. 1-14 (1833).[2]
Nonetheless, private respondent was allowed to defend her dissertation on
February 5, 1993. Four (4) out of the five (5) panelists gave private respondent a
passing mark for her oral defense by affixing their signatures on the approval
form. These were Drs. Manuel, Quiason, Skandarajah, and Teodoro. Dr. Quiason
added the following qualification to his signature:
Ms. Arokiaswamy must incorporate the suggestions I made during the successful
defense of her Ph.D. thesis.[3]
Dr. Medina did not sign the approval form but added the following comment:
Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga
revisions ng dissertation.[4]
Dr. Teodoro added the following note to his signature:
Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel ang
bound copies.[5]
In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr.
Manuel, private respondent requested a meeting with the panel members,
especially Dr. Medina, to discuss the amendments suggested by the panel
members during the oral defense. The meeting was held at the deans office with
Dean Paz, private respondent, and a majority of the defense panel
present.[6] During the meeting, Dean Paz remarked that a majority vote of the
panel members was sufficient for a student to pass, notwithstanding the failure to
obtain the consent of the Deans representative.
On March 24, 1993, the CSSP College Faculty Assembly approved private
respondents graduation pending submission of final copies of her dissertation.
 In April 1993, private respondent submitted copies of her supposedly revised
dissertation to Drs. Manuel, Skandarajah, and Quiason, who expressed their
assent to the dissertation. Petitioners maintain, however, that private respondent
did not incorporate the revisions suggested by the panel members in the final
copies of her dissertation.
Private respondent left a copy of her dissertation in Dr. Teodoros office on
April 15, 1993 and proceeded to submit her dissertation to the CSSP without the
approvals of Dr. Medina and Dr. Teodoro, relying on Dean Pazs March 5, 1993
statement.
Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the
approval form.[7]
Dean Paz then accepted private respondents dissertation in partial fulfillment
of the course requirements for the doctorate degree in Anthropology.
In a letter to Dean Paz, dated April 17, 1993, private respondent expressed
concern over matters related to her dissertation. She sought to explain why the
signature of Dr. Medina was not affixed to the revision approval form. Private
respondent said that since she already had the approval of a majority of the panel
members, she no longer showed her dissertation to Dr. Medina nor tried to obtain
the latters signature on the revision approval form. She likewise expressed her
disappointment over the CSSP administration and charged Drs. Diokno and
Medina with maliciously working for the disapproval of her dissertation, and further
warned Dean Paz against encouraging perfidious acts against her.
On April 17, 1993, the University Council met to approve the list of
candidates for graduation for the second semester of school year 1992-1993. The
list, which was endorsed to the Board of Regents for final approval, included
private respondents name.
On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor
for Academic Affairs, requesting the exclusion of private respondents name from
the list of candidates for graduation, pending clarification of the problems regarding
her dissertation. Her letter reads:[8]
Abril 21, 1993
Dr. Milagros Ibe
Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.
Mahal na Dr. Ibe,
Mahigpit ko pong hinihiling na hwag munang isama ang pangalan ni Ms.
Arokiaswam[y] William Margaret Celine sa listahan ng mga bibigyan ng degri na
Ph.D. (Anthropology) ngayon[g] semester, dahil sa mga malubhang bintang nya sa
ilang myembro ng panel para sa oral defense ng disertasyon nya at sa mga
akusasyon ng ilan sa mga ito sa kanya.
Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang
degri kay Ms. Arokiaswam[y]. Kelangan po ito para mapangalagaan ang istandard
ng pinakamataas na degree ng Unibersidad.
(Sgd.)
CONSUELO JOAQUIN-PAZ, Ph.D.
Dekano
Apparently, however, Dean Pazs letter did not reach the Board of Regents on
time, because the next day, April 22, 1993, the Board approved the University
Councils recommendation for the graduation of qualified students, including private
respondent. Two days later, on April 24, 1993, private respondent graduated with
the degree of Doctor of Philosophy in Anthropology.
On the other hand, Dean Paz also wrote a letter to private respondent, dated
April 21, 1993, that she would not be granted an academic clearance unless she
substantiated the accusations contained in her letter dated April 17, 1993.
In her letter, dated April 27, 1993, private respondent claimed that Dr.
Medinas unfavorable attitude towards her dissertation was a reaction to her failure
to include him and Dr. Francisco in the list of panel members; that she made the
revisions proposed by Drs. Medina and Teodoro in the revised draft of her
dissertation; and that Dr. Diokno was guilty of harassment.
In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally
charged private respondent with plagiarism and recommended that the doctorate
granted to her be withdrawn.[9]
On May 13, 1993, Dean Paz formed an ad hoc committee, composed of
faculty members from various disciplines and chaired by Dr. Eva Duka-Ventura, to
investigate the plagiarism charge against private respondent. Meanwhile, she
recommended to U.P. Diliman Chancellor, Dr. Emerlinda Roman, that the Ph.D.
degree conferred on private respondent be withdrawn.[10]
In a letter, dated June 7, 1993, Dean Paz informed private respondent of the
charges against her.[11]
On June 15, 1993, the Ventura Committee submitted a report to Dean Paz,
finding at least ninety (90) instances or portions in private respondents thesis
which were lifted from sources without proper or due acknowledgment.
On July 28, 1993, the CSSP College Assembly unanimously approved the
recommendation to withdraw private respondents doctorate degree and forwarded
its recommendation to the University Council.The University Council, in turn,
approved and endorsed the same recommendation to the Board of Regents on
August 16, 1993.
On September 6, 1993, the Board of Regents deferred action on the
recommendation to study the legal implications of its approval.[12]
Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor
Emerlinda Roman summoned private respondent to a meeting on the same day
and asked her to submit her written explanation to the charges against her.
During the meeting, Chancellor Roman informed private respondent of the
charges and provided her a copy of the findings of the investigating
committee.[13] Private respondent, on the other hand, submitted her written
explanation in a letter dated September 25, 1993.
Another meeting was held on October 8, 1993 between Chancellor Roman
and private respondent to discuss her answer to the charges. A third meeting was
scheduled on October 27, 1993 but private respondent did not attend it, alleging
that the Board of Regents had already decided her case before she could be fully
heard.
On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P.
President, alleging that some members of the U.P. administration were playing
politics in her case.[14] She sent another letter, dated December 14, 1993, to Dr.
Armand Fabella, Chairman of the Board of Regents, complaining that she had not
been afforded due process and claiming that U.P. could no longer withdraw her
degree since her dissertation had already been accepted by the CSSP.[15]
Meanwhile, the U.P. Office of Legal Services justified the position of the
University Council in its report to the Board of Regents. The Board of Regents, in
its February 1, 1994 and March 24, 1994 meetings, further deferred action
thereon.
On July 11, 1994, private respondent sent a letter to the Board of Regents
requesting a re-investigation of her case. She stressed that under the Rules and
Regulations on Student Conduct and Discipline, it was the student disciplinary
tribunal which had jurisdiction to decide cases of dishonesty and that the
withdrawal of a degree already conferred was not one of the authorized penalties
which the student disciplinary tribunal could impose.
On July 28, 1994, the Board of Regents decided to release private
respondents transcript of grades without annotation although it showed that private
respondent passed her dissertation with 12 units of credit.
On August 17, 1994, Chancellor Roger Posadas issued Administrative Order
No. 94-94 constituting a special committee composed of senior faculty members
from the U.P. units outside Diliman to review the University Councils
recommendation to withdraw private respondents degree. With the approval of the
Board of Regents and the U.P. Diliman Executive Committee, Posadas created a
five-man committee, chaired by Dr. Paulino B. Zafaralla, with members selected
from a list of nominees screened by Dr. Emerenciana Arcellana, then a member of
the Board of Regents. On August 31, 1994, the members of the Zafaralla
committee and private respondent met at U.P. Los Baos.
Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to
private respondent a copy of her transcript of grades and certificate of graduation.
In a letter to Chancellor Posadas, dated September 1, 1994, private
respondent requested that the Zafaralla committee be provided with copies of the
U.P. Charter (Act No. 1870), the U.P. Rules and Regulations on Student Conduct
and Discipline, her letter-response to Chancellor Roman, dated September 25,
1993, as well as all her other communications.
On September 19, 1994, Chancellor Posadas obtained the Zafaralla
Committees report, signed by its chairman, recommending the withdrawal of
private respondents doctorate degree. The report stated:[16]
After going through all the pertinent documents of the case and interviewing Ms.
Arokiaswamy William, the following facts were established:
1. There is overwhelming evidence of massive lifting from a published
source word for word and, at times, paragraph by paragraph without
any acknowledgment of the source, even by a mere quotation
 mark. At least 22 counts of such documented liftings were identified
by the Committee. These form part of the approximately ninety (90)
instances found by the Committee created by the Dean of the
College and subsequently verified as correct by the Special
Committee. These instances involved the following forms of
intellectual dishonesty: direct lifting/copying without
acknowledgment, full/partial lifting with improper documentation and
substitution of terms or words (e.g., Tamil in place of Sanskrit,
Tamilization in place of Indianization) from an acknowledged source
in support of her thesis (attached herewith is a copy of the
documents for reference); and
2. Ms. Arokiaswamy William herself admits of being guilty of the
allegation of plagiarism. Fact is, she informed the Special
Committee that she had been admitting having lifted several
portions in her dissertation from various sources since the
beginning.
In view of the overwhelming proof of massive lifting and also on the admission of
Ms. Arokiaswamy William that she indeed plagiarized, the Committee strongly
supports the recommendation of the U.P. Diliman Council to withdraw the doctoral
degree of Ms. Margaret Celine Arokiaswamy William.
On the basis of the report, the University Council, on September 24, 1994,
recommended to the Board of Regents that private respondent be barred in the
future from admission to the University either as a student or as an employee.
On January 4, 1995, the secretary of the Board of Regents sent private
respondent the following letter:[17]
4 January 1995
Ms. Margaret Celine Arokiaswamy William
Department of Anthropology
College of Social Sciences and Philosophy
U.P. Diliman, Quezon City
Dear Ms. Arokiaswamy William:
This is to officially inform you about the action taken by the Board of Regents at its
1081st and 1082nd meetings held last 17 November and 16 December 1994
regarding your case, the excerpts from the minutes of which are attached
herewith.
Please be informed that the members present at the 1081st BOR meeting on 17
November 1994 resolved, by a majority decision, to withdraw your Ph.D. degree as
recommended by the U.P. Diliman University Council and as concurred with by the
External Review Panel composed of senior faculty from U.P. Los Baos and U.P.
Manila. These faculty members were chosen by lot from names submitted by the
University Councils of U.P. Los Baos and U.P. Manila.
In reply to your 14 December 1994 letter requesting that you be given a good
lawyer by the Board, the Board, at its 1082nd meeting on 16 December 1994,
suggested that you direct your request to the Office of Legal Aid, College of Law,
U.P. Diliman.
Sincerely yours,
(Sgd.)
VIVENCIO R. JOSE
Secretary of the University
and of the Board of Regents
On January 18, 1995, private respondent wrote a letter to Commissioner
Sedfrey Ordoez, Chairman of the Commission on Human Rights, asking the
commissions intervention.[18] In a letter, dated February 14, 1995, to Secretary
Ricardo Gloria, Chairman of the Board of Regents, she asked for a reinvestigation
of her case. She also sought an audience with the Board of Regents and/or the
U.P. President, which request was denied by President Javier, in a letter dated
June 2, 1995.
On August 10, 1995, private respondent then filed a petition
for mandamus with a prayer for a writ of preliminary mandatory injunction and
damages, which was docketed as Civil Case No. Q-95-24690 and assigned to
Branch 81 of the Regional Trial Court of Quezon City.[19] She alleged that
petitioners had unlawfully withdrawn her degree without justification and without
affording her procedural due process. She prayed that petitioners be ordered to
restore her degree and to pay her P500,000.00 as moral and exemplary damages
and P1,500,000.00 as compensation for lost earnings.
On August 6, 1996, the trial court, Branch 227, rendered a decision
dismissing the petition for mandamus for lack of merit.[20] Private respondent
appealed to the Court of Appeals, which on December 16, 1997, reversed the
lower court. The dispositive portion of the appellate courts decision reads:[21]
WHEREFORE, the decision of the court a quo is hereby reversed and set
aside. Respondents are ordered to restore to petitioner her degree of Ph.D. in
Anthropology.
No pronouncement as to costs.
SO ORDERED.
Hence, this petition. Petitioners contend:
I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING
THE WRIT OF MANDAMUS AND ORDERING PETITIONERS TO RESTORE
RESPONDENTS DOCTORAL DEGREE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING
THAT THE DOCTORAL DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE
RECALLED WITHOUT VIOLATING HER RIGHT TO ENJOYMENT OF
INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING
PETITIONERS OF THEIR RIGHT TO SUBSTANTIVE DUE PROCESS.[22]
Petitioners argue that private respondent failed to show that she had been
unlawfully excluded from the use and enjoyment of a right or office to which she is
entitled so as to justify the issuance of the writ of mandamus. They also contend
that she failed to prove that the restoration of her degree is a ministerial duty of
U.P. or that the withdrawal of the degree violated her right to the enjoyment of
intellectual property.
On the other hand, private respondent, unassisted by counsel, argue that
petitioners acted arbitrarily and with grave abuse of discretion in withdrawing her
degree even prior to verifying the truth of the plagiarism charge against her; and
that as her answer to the charges had not been forwarded to the members of the
investigating committees, she was deprived of the opportunity to comment or
refute their findings.
In addition, private respondent maintains that petitioners are estopped from
withdrawing her doctorate degree; that petitioners acted contrary to 9 of the U.P.
Charter and the U.P. Rules and Regulations on Student Conduct and Discipline of
the University, which according to her, does not authorize the withdrawal of a
degree as a penalty for erring students; and that only the college committee or the
student disciplinary tribunal may decide disciplinary cases, whose report must be
signed by a majority of its members.
We find petitioners contention to be meritorious.
Mandamus is a writ commanding a tribunal, corporation, board or person to
do the act required to be done when it or he 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 and enjoyment of a right or
office to which such other is entitled, there being no other plain, speedy, and
adequate remedy in the ordinary course of law.[23] In University of the Philippines
Board of Regents v. Ligot-Telan,[24] this Court ruled that the writ was not available
to restrain U.P. from the exercise of its academic freedom. In that case, a student
who was found guilty of dishonesty and ordered suspended for one year by the
Board of Regents, filed a petition for mandamus and obtained from the lower court
a temporary restraining order stopping U.P. from carrying out the order of
suspension. In setting aside the TRO and ordering the lower court to dismiss the
students petition, this Court said:
[T]he lower court gravely abused its discretion in issuing the writ of preliminary
injunction of May 29, 1993. The issuance of the said writ was based on the lower
courts finding that the implementation of the disciplinary sanction of suspension on
Nadal would work injustice to the petitioner as it would delay him in finishing his
course, and consequently, in getting a decent and good paying job. Sadly, such a
ruling considers only the situation of Nadal without taking into account the
circumstances, clearly of his own making, which led him into such a
predicament. More importantly, it has completely disregarded the overriding issue
of academic freedom which provides more than ample justification for the
imposition of a disciplinary sanction upon an erring student of an institution of
higher learning.
From the foregoing arguments, it is clear that the lower court should have
restrained itself from assuming jurisdiction over the petition filed by
Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and
certain right on the part of the petitioner being required. It is of no avail against an
official or government agency whose duty requires the exercise of discretion or
judgment.[25]
In this case, the trial court dismissed private respondents petition precisely
on grounds of academic freedom but the Court of Appeals reversed holding that
private respondent was denied due process. It said:
It is worthy to note that during the proceedings taken by the College Assembly
culminating in its recommendation to the University Council for the withdrawal of
petitioners Ph.D. degree, petitioner was not given the chance to be heard until
after the withdrawal of the degree was consummated. Petitioners subsequent
letters to the U.P. President proved unavailing.[26]
As the foregoing narration of facts in this case shows, however, various
committees had been formed to investigate the charge that private respondent had
committed plagiarism and, in all the investigations held, she was heard in her
defense. Indeed, if any criticism may be made of the university proceedings before
private respondent was finally stripped of her degree, it is that there were too many
committee and individual investigations conducted, although all resulted in a
finding that private respondent committed dishonesty in submitting her doctoral
dissertation on the basis of which she was conferred the Ph.D. degree.
Indeed, in administrative proceedings, the essence of due process is simply
the opportunity to explain ones side of a controversy or a chance to seek
reconsideration of the action or ruling complained of.[27] A party who has availed of
the opportunity to present his position cannot tenably claim to have been denied
due process.[28]
In this case, private respondent was informed in writing of the charges
against her[29] and afforded opportunities to refute them. She was asked to submit
her written explanation, which she forwarded on September 25, 1993.[30] Private
respondent then met with the U.P. chancellor and the members of the Zafaralla
committee to discuss her case. In addition, she sent several letters to the U.P.
authorities explaining her position.[31]
It is not tenable for private respondent to argue that she was entitled to have
an audience before the Board of Regents. Due process in an administrative
context does not require trial-type proceedings similar to those in the courts of
justice.[32] It is noteworthy that the U.P. Rules do not require the attendance of
persons whose cases are included as items on the agenda of the Board of
Regents.[33]
Nor indeed was private respondent entitled to be furnished a copy of the
report of the Zafaralla committee as part of her right to due process. In Ateneo de
Manila University v. Capulong,[34] we held:
Respondent students may not use the argument that since they were not accorded
the opportunity to see and examine the written statements which became the basis
of petitioners February 14, 1991 order, they were denied procedural due
process. Granting that they were denied such opportunity, the same may not be
said to detract from the observance of due process, for disciplinary cases involving
students need not necessarily include the right to cross examination. An
administrative proceeding conducted to investigate students participation in a
hazing activity need not be clothed with the attributes of a judicial proceeding. . .
In this case, in granting the writ of mandamus, the Court of Appeals held:
First. Petitioner graduated from the U.P. with a doctorate degree in
Anthropology. After graduation, the contact between U.P. and petitioner
ceased. Petitioner is no longer within the ambit of the disciplinary powers of the
U.P. As a graduate, she is entitled to the right and enjoyment of the degree she
has earned. To recall the degree, after conferment, is not only arbitrary,
unreasonable, and an act of abuse, but a flagrant violation of petitioners right of
enjoyment to intellectual property.
Second. Respondents aver that petitioners graduation was a mistake.
Unfortunately this mistake was arrived at after almost a year after
graduation. Considering that the members of the thesis panel, the College Faculty
Assembly, and the U.P. Council are all men and women of the highest intellectual
acumen and integrity, as respondents themselves aver, suspicion is aroused that
the alleged mistake might not be the cause of withdrawal but some other hidden
agenda which respondents do not wish to reveal.
At any rate, We cannot countenance the plight the petitioner finds herself
enmeshed in as a consequence of the acts complained of. Justice and equity
demand that this be rectified by restoring the degree conferred to her after her
compliance with the academic and other related requirements.
Art. XIV, 5 (2) of the Constitution provides that [a]cademic freedom shall be
enjoyed in all institutions of higher learning. This is nothing new. The 1935
Constitution[35] and the 1973 Constitution[36]likewise provided for the academic
freedom or, more precisely, for the institutional autonomy of universities and
institutions of higher learning. As pointed out by this Court in Garcia v. Faculty
Admission Committee, Loyola School of Theology,[37] it is a freedom granted to
institutions of higher learning which is thus given a wide sphere of authority
certainly extending to the choice of students. If such institution of higher learning
can decide who can and who cannot study in it, it certainly can also determine on
whom it can confer the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained
through fraud, a university has the right to revoke or withdraw the honor or
distinction it has thus conferred. This freedom of a university does not terminate
upon the graduation of a student, as the Court of Appeals held. For it is precisely
the graduation of such a student that is in question. It is noteworthy that the
investigation of private respondents case began before her graduation. If she was
able to join the graduation ceremonies on April 24, 1993, it was because of too
many investigations conducted before the Board of Regents finally decided she
should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher
learning, for the constitutional grant of academic freedom, to quote again
from Garcia v. Faculty Admission Committee, Loyola School of Theology, is not to
be construed in a niggardly manner or in a grudging fashion.
Under the U.P. Charter, the Board of Regents is the highest governing body
of the University of the Philippines.[38] It has the power to confer degrees upon the
recommendation of the University Council.[39] It follows that if the conferment of a
degree is founded on error or fraud, the Board of Regents is also empowered,
subject to the observance of due process, to withdraw what it has granted without
violating a students rights. An institution of higher learning cannot be powerless if it
discovers that an academic degree it has conferred is not rightfully
deserved. Nothing can be more objectionable than bestowing a universitys highest
academic degree upon an individual who has obtained the same through fraud or
deceit. The pursuit of academic excellence is the universitys concern. It should be
empowered, as an act of self-defense, to take measures to protect itself from
serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their education,
the USC as an educational institution is also entitled to pursue its academic
freedom and in the process has the concomitant right to see to it that this freedom
is not jeopardized.[40]
In the case at bar, the Board of Regents determined, after due investigation
conducted by a committee composed of faculty members from different U.P. units,
that private respondent committed no less than ninety (90) instances of intellectual
dishonesty in her dissertation. The Board of Regents decision to withdraw private
respondents doctorate was based on documents on record including her
admission that she committed the offense.[41]
On the other hand, private respondent was afforded the opportunity to be
heard and explain her side but failed to refute the charges of plagiarism against
her. Her only claim is that her responses to the charges against her were not
considered by the Board of Regents before it rendered its decision. However, this
claim was not proven. Accordingly, we must presume regularity in the performance
of official duties in the absence of proof to the contrary.[42]
Very much the opposite of the position of the Court of Appeals that, since
private respondent was no longer a student of the U.P., the latter was no longer
within the ambit of disciplinary powers of the U.P., is private respondents
contention that it is the Student Disciplinary Tribunal which had jurisdiction over
her case because the charge is dishonesty. Private respondent invokes 5 of the
U.P. Rules and Regulations on Student Conduct and Discipline which provides:
Jurisdiction. All cases involving discipline of students under these rules shall be
subject to the jurisdiction of the student disciplinary tribunal, except the following
cases which shall fall under the jurisdiction of the appropriate college or unit;
(a) Violation of college or unit rules and regulations by students of the
college, or
(b) Misconduct committed by students of the college or unit within its
classrooms or premises or in the course of an official activity;
Provided, that regional units of the University shall have original jurisdiction over all
cases involving students of such units.
Private respondent argues that under 25 (a) of the said Rules and Regulations,
dishonesty in relation to ones studies (i.e., plagiarism) may be punished only with
suspension for at least one (1) year.
As the above-quoted provision of 5 of the Rules and Regulations indicates,
the jurisdiction of the student disciplinary tribunal extends only to disciplinary
actions. In this case, U.P. does not seek to discipline private respondent. Indeed,
as the appellate court observed, private respondent is no longer within the ambit of
disciplinary powers of the U.P. Private respondent cannot even be punished since,
as she claims, the penalty for acts of dishonesty in administrative disciplinary
proceedings is suspension from the University for at least one year. What U.P.,
through the Board of Regents, seeks to do is to protect its academic integrity by
withdrawing from private respondent an academic degree she obtained through
fraud.
WHEREFORE, the decision of the Court of Appeals is hereby REVERSED
and the petition for mandamus is hereby DISMISSED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.
SYNOPSIS
Private respondent herein is a citizen of India and a holder of a Philippine
visitors visa. She enrolled in a doctoral program in anthropology of the University
of the Philippines. After completing her units of course work required in her
doctoral program, she left the country to work in Rome. After two years, she
returned to the Philippines to work on her dissertation. Upon her presentation of
her dissertation for approval to the panel, Dr. Medina, a deans representative to
the panel, noticed that some portions of her work were lifted from other works
without the proper acknowledgement. Nonetheless, she was allowed to defend her
dissertation. She passed her oral defense, which was approved by four of the five
panelists with the condition that she shall incorporate certain amendments to the
final copy of her dissertation. However, in her final submission of the copy of her
dissertation, she failed to incorporate the necessary revisions. With this
development, Dr. Medina formally charged her with plagiarism and recommended
that the doctorate granted upon her be withdrawn. After an investigation, the
College of Social Sciences and Philosophy (CSSP) College Assembly
recommended the withdrawal of her doctorate degree, which was approved by the
U.P. Board of Regents. Private respondent filed a petition for mandamus with
prayer for a writ of preliminary injunction and damages against petitioners herein,
alleging that they had unlawfully withdrawn her degree without justification. The
trial court dismissed her petition. However, on appeal, the Court of Appeals
reversed the lower courts decision. Hence, this petition.
The narration of facts showed that various committees were formed to
investigate the charges that private respondent committed plagiarism. In all
investigations held, she was heard in her defense. Where it was shown that the
conferment of an honor or distinction was obtained through fraud, a university has
the right to withdraw the honor or distinction it has conferred. Under the U.P.
Charter, the Board of Regents is the highest governing body of the U.P. In the
case at bar, the Board of Regents decision to withdraw private respondents
doctorate degree was based on records, including her admission that she
committed the offense. The Supreme Court reversed the decision of the Court of
Appeals and the petition for mandamus was dismissed.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS, DEFINED; NOT
AVAILABLE TO RESTRAIN THE EXERCISE OF ACADEMIC FREEDOM;
CASE AT BAR. - Mandamus is a writ commanding a tribunal, corporation,
board or person to do the act required to be done when it or he 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 and enjoyment of a right or office to which such other is entitled,
there being no other plain, speedy, and adequate remedy in the ordinary
course of law. In University of the Philippines Board of Regents vs. Ligot-
Telan, 227 SCRA 342 (1993), this Court ruled that the writ was not available
to restrain U.P. from the exercise of its academic freedom. In that case, a
student who was found guilty of dishonesty and ordered suspended for one
year by the Board of Regents, filed a petition for mandamus and obtained
from the lower court a temporary restraining order stopping U.P. from
carrying out the order of suspension. In setting aside the TRO and ordering
the lower court to dismiss the students petition, this Court said: [T]he lower
court gravely abused its discretion in issuing the writ of preliminary injunction
of May 29, 1993. The issuance of the said writ was based on the lower courts
finding that the implementation of the disciplinary sanction of suspension on
Nadal would work injustice to the petitioner as it would delay him in finishing
his course, and consequently, in getting a decent and good paying job.
Sadly, such a ruling considers only the situation of Nadal without taking into
account the circumstances, clearly of his own making, which led him into
such a predicament. More importantly, it has completely disregarded the
overriding issue of academic freedom which provides more than ample
justification for the imposition of a disciplinary sanction upon an erring
 student of an institution of higher learning. From the foregoing arguments, it academic degree upon an individual who has obtained the same through
is clear that the lower court should have restrained itself from assuming fraud or deceit. The pursuit of academic excellence is the universitys
jurisdiction over the petition filed by the Nadal. Mandamus is never issued in concern. It should be empowered, as an act of self-defense, to take
doubtful cases, a showing of a clear and certain right on the part of the measures to protect itself from serious threats to its integrity.
petitioner being required. It is of no avail against an official or government
agency whose duty requires the exercise of discretion or judgment. 3. ID.; BILL OF RIGHTS; DUE PROCESS; ESSENCE THEREOF IN
ADMINISTRATIVE PROCEEDINGS; PRESENT IN CASE AT BAR. - In
2. CONSTITUTIONAL LAW; EDUCATION; ACADEMIC FREEDOM, administrative proceedings, the essence of due process is simply the
CONSTRUED; APPLICATION IN CASE AT BAR. - Art. XIV, Section 5(2) of opportunity to explain ones side of a controversy or a chance to seek
the Constitution provides that [a]cademic freedom shall be enjoyed in all reconsideration of the action or ruling complained of. A party who has availed
institutions of higher learning. This is nothing new. The 1935 Constitution and of the opportunity to present his position cannot tenably claim to have been
the 1973 Constitution likewise provided for the academic freedom or, more denied due process. In this case, private respondent was informed in writing
precisely, for the institutional autonomy of universities and institutions of of the charges against her and afforded opportunities to refute them. She
higher learning. As pointed out by this Court in Garcia vs. Faculty Admission was asked to submit her written explanation, which she forwarded on
Committee, Loyola School of Theology, 68 SCRA 277 (1975), it is a freedom September 25, 1993. Private respondent then met with the U.P. chancellor
granted to institutions of higher learning which is thus given a wide sphere of and the members of the Zafaralla committee to discuss her case. In addition,
authority certainly extending to the choice of students. If such institution of she sent several letters to the U.P. authorities explaining her position. It is not
higher learning can decide who can and who cannot study in it, it certainly tenable for private respondent to argue that she was entitled to have an
can also determine on whom it can confer the honor and distinction of being audience before the Board of Regents. Due process in an administrative
its graduates. Where it is shown that the conferment of an honor or context does not require trial-type proceedings similar to those in the courts
distinction was obtained through fraud, a university has the right to revoke or of justice. It is noteworthy that the U.P. Rules do not require the attendance
withdraw the honor or distinction it has thus conferred. This freedom of a of persons whose cases are included as items on the agenda of the Board of
university does not terminate upon the graduation of a student, as the Court Regents. Nor indeed was private respondent entitled to be furnished a copy
of Appeals held. For it is precisely the graduation of such a student that is in of the report of the Zafaralla committee as part of her right to due process.
question. It is noteworthy that the investigation of private respondents case
began before her graduation. If she was able to join the graduation
ceremonies on April 24, 1993, it was because of too many investigations
conducted before the Board of Regents finally decided she should not have
been allowed to graduate. Wide indeed is the sphere of autonomy granted to
institutions of higher learning, for the constitutional grant of academic
freedom, to quote again from Garcia vs. Faculty Admission Committee,
Loyola School of Theology, is not to be construed in a niggardly manner or in
a grudging fashion. Under the U.P. Charter, the Board of Regents is the
highest governing body of the University of the Philippines. (Act No. 1870, 4)
It has the power to confer degrees upon the recommendation of the
University Council. It follows that if the conferment of a degree is founded on
error or fraud, the Board of Regents is also empowered, subject to the
observance of due process, to withdraw what it has granted without violating
a students rights. An institution of higher learning cannot be powerless if it
discovers that an academic degree it has conferred is not rightfully deserved.
Nothing can be more objectionable than bestowing a universitys highest